The bar has been trying to open in the former Canon & Draw Brewing Co. space in the Fan. (BizSense file)
KavaClub, a fledgling Fan bar that wants to serve the trendy Polynesian drink kava, has hit yet another legal roadblock.
The business on Tuesday was denied in its request for a temporary injunction that would have allowed it to open for business at 1529 W. Main St. while its legal battle with the Virginia Department of Health plays out.
The ruling by Richmond Circuit Court Judge W. Reilly Marchant leaves KavaClub and founder Fred Bryant in continued regulatory limbo, which began shortly after it announced its plans to open at the beginning of the year.
VDH denied KavaClub’s operating permit because kava – a non-alcoholic yet psychoactive drink – hasn’t been approved by the Food and Drug Administration and has been linked with severe liver injury. KavaClub’s offerings are also planned to include the ingredient kratom, which faces similar regulatory questions from VDH.
Kava’s origins are in Polynesia, where it’s been drunk for thousands of years, providing users feelings of relaxation and mild euphoria. There are kava bars in other states, but none in Virginia.
KavaClub appealed VDH’s permit denial in the spring and that process is ongoing. Last month the bar took the matter to Richmond Circuit Court when it filed a motion seeking a temporary injunction that would award KavaClub its operating permit in the interim.
At Tuesday’s injunction hearing, Marchant denied the request after listening to arguments from attorneys for both KavaClub and the state.
Marchant said he felt it would be reckless for the court to allow KavaClub to open before a full hearing of its appeal is held.
“You’re asking me to jump the whole case,” Marchant said to KavaClub’s attorneys Dale Mullen and Michael Brady of Whiteford, Taylor & Preston.
Brady and Mullen argued that injunctive relief was necessary in order to prevent irreparable damage to the business, and that KavaClub’s request was eligible for injunctive relief because it would preserve existing rights of the bar.
Marchant disagreed that there was any right to operate that was eligible to be preserved.
“You don’t have that right because you’ve never been permitted,” Marchant said. “You’re asking for me to create rights.”
Marchant, who himself once co-owned downtown restaurant Pasture, said he understood the difficulties of the industry but that it would set a dangerous precedent if the court were to grant KavaClub an operating permit.
“To ask the court to reverse the decision of the administrative agencies…the standard is extremely high,” Marchant said. “The court would be on very flimsy ground to support that.”
Bryant, a local entrepreneur who founded investment tech firm WealthForge, said he wasn’t surprised by Tuesday’s ruling. He said his ire is directed at Gov. Glenn Youngkin and his administration, whose agencies Bryant said have stood in the way of him opening his business.
“This is not something that should be handled by the judicial branches. It’s an executive branch matter where you have unelected bureaucrats who have control over a permanent process,” Bryant said in an interview Tuesday after the hearing.
“We’re pursuing avenues to everything we can on the judicial side, but at the core of it, it’s a lack of leadership from the executive branch.”
Defendants named in KavaClub’s motion are the state’s Department and Board of Health and the Health Commissioner, as well as the Richmond District’s health director. Assistant Attorney General of Virginia Eric Lansing represented the defendants at Tuesday’s hearing.
Spokespeople for the Attorney General’s office didn’t respond to a request for comment Tuesday afternoon.
At the end of Tuesday’s hearing, the attorneys for both parties said that they haven’t yet set a date for KavaClub’s appeal hearing, which would be the next step in the process.
