Dethroned (Part 1): Behind Decatur’s push to ‘kick King of Pops off the Square’Photo obtained via the King of Pops Facebook page.
A Decaturish investigation that included a review of more than 400 public records and numerous interviews showed that the city of Decatur actively promoted one popsicle company – Steel City Pops – over its Atlanta-based rival, King of Pops. This is the first part of a three-part series examining the city’s role in promoting Steel City Pops.
Other stories in this series:
Dethroned (Part 2): King of Pops lost festival business while Decatur promoted Steel City Pops
Dethroned (Part 3): Decatur says Steel City Pops treated like other local companies
In February 2017, Catherine Lee – then a downtown development manager for the city of Decatur – sent an email to City Planning Director Angela Threadgill.
The email’s subject line was “Food Carts.” Lee told Threadgill that a new popsicle production facility and shop would be opening in downtown Decatur.
“And I’m sure they’ll raise questions about the King of Pops selling on the Square,” Lee told Threadgill.
In May 2017 news broke that Birmingham-based Steel City Pops would be opening a production facility in Decatur. Steel City Pops opened for business in Decatur a few months later.
King of Pops’ days of vending on the Decatur Square were numbered.
Decaturish began investigating why the city of Decatur reinstated a “pilot program” that would keep King of Pops, a company based in Atlanta’s Old Fourth Ward neighborhood, from vending on the Square – a spot it held for years until 2018. The city gave that spot to Steel City Pops.
Both companies sell a similar product, high-end popsicles that use locally sourced ingredients.
When Decatur City Commissioners approved a program that would give Steel City Pops exclusive rights to vend on the Square, it wasn’t by chance.
Decatur, as it turns out, has had a sweet spot for the Birmingham-based company for the last two and a half years. Our investigation revealed the city took numerous actions on the company’s behalf.
And Steel City Pops didn’t just open a retail store. Their investment in Decatur includes a production kitchen supporting the company’s operations in Atlanta. The city says Decatur’s policy for issuing permits is to favor local businesses, even though that policy isn’t in writing.
Steel City Pops declined to comment for this story and Lee, who no longer works for the city, did not return messages seeking comment.
The city’s decision to remove King of Pops from the Square was contained in an obscure agenda item at its March 18 meeting.
The item “vendor cart pilot program” didn’t provide many details, other than allowing for one cart vendor on the Decatur Square and at Harmony Park in Oakhurst.
King of Pops and Steel City Pops weren’t mentioned during the March 18 meeting where commissioners unanimously approved reinstating the pilot program.
“In 2017, the City Commission approved an ordinance to permit businesses to apply to vend on the Decatur Square,” a memo from Decatur Downtown Program Manager Shirley Baylis said. The memo was attached to the March 18 meeting agenda. “Since that time, the application process has not been fully developed due to staff changes in the Community & Economic Development Department. This temporary reinstatement of the pilot program will allow us the opportunity to approve a permit for one local city of Decatur business to vend on the Decatur Square and in Harmony Park for a pilot period beginning on March 22, 2019 and ending on September 30, 2019.”
That one local business turned out to be Steel City Pops. This information came to light when Decaturish started asking questions about the vendor cart pilot program the City Commission reinstated.
Baylis said at the time, “The pilot program requires that a vendor cart not be in competition with a city of Decatur brick and mortar business.”
Except there’s nothing in the language of what the commission adopted that says this.
During conversations with Baylis’ boss, Assistant City Manager Lyn Menne, and in the emails obtained through the open records request, the city often refers to guidelines or a policy that states the city will give preference to local businesses.
“We had requests from King of Pops and Steel City Pops but, as is our policy, when there is a local business option that will be our choice,” Menne said when she was first asked about the vendor cart pilot program.
Decaturish asked for a copy of this policy. The city’s attorney responded by saying there is no written record of it.
It’s something the city says it will fix.
“It hasn’t been a part of the written policy,” Mayor Patti Garrett said. “I’m thinking that is going to bubble to the top.”
The city so far hasn’t presented or adopted any policy that would validate its decision to block King of Pops from the Square.
As Baylis mentions in her memo, in May 2017 the City Commission did approve an ordinance regulating mobile food facilities, including popsicle carts. That ordinance doesn’t say anything about only giving spots to businesses in the city of Decatur.
The ordinance simply says the city “shall” issue a permit to any applicant who qualifies.
‘Kick King of Pops off the Square’
According the emails, city staff knew that the agenda item at the March 18 meeting involved Steel City and King of Pops. But the commissioners who voted for it weren’t all aware that the vendor cart pilot program they approved was about Steel City Pops vending on the Square instead of King of Pops.
Mayor Pro Tem Tony Powers and Commissioners Kelly Walsh and Scott Drake said they did not know about the vendor involved. Commissioner Brian Smith did not recall.
Mayor Garrett said she did know the vendor cart pilot program concerned the two popsicle vendors.
“I didn’t view it as kicking King of Pops off the Square,” Garrett said, saying she viewed the pilot program as, “Allowing us to support bricks and mortar businesses.”
Public records show that kicking King of Pops off the Square was something city employees had discussed.
In March 2018, Steel City Pops manager Khoa Pham emailed Baylis. Pham had arrived at the Square for a Decatur Business Association volunteer event, but no one was there, the email said. Did Steel City arrive at the wrong location, Pham asked.
Baylis said the event was in April.
On March 30, 2018 Menne emailed Baylis to say she ran into an employee with Steel City Pops on the Square and he mentioned that he had the date on his calendar for the volunteer appreciation event. Menne told Baylis she, “wanted to let you all know so we can give him a bit of love.”
Lee, who was copied on the email, replied that the “best peace offering” would be for the city to finalize its food cart application process so Steel City could vend on the Square that summer.
“Or kick King of Pops off the Square …,” Lee added.
Menne responded and asked about the next steps.
By May 2018, Lee was in talks with Menne about a letter telling King of Pops that their time vending on the Square was coming to an end.
Later that month, King of Pops was at its usual spot on the Square when someone from the city approached the cart operator and told them to leave. King of Pops hasn’t returned to the Square since.
Preferred Popsicle vendor
When the city approved the vendor cart pilot program and gave Steel City Pops dibs on the Square, city officials were unequivocal on one point.
Baylis said the move was not about kicking King of Pops off the Square. When asked whether Steel City Pops had requested exclusive use of the Square, Baylis said, “No.”
The public records say otherwise.
The city received a vending proposal from Steel city in January 2019.
There were two versions of this proposal obtained in the records request, both of which are undated. The city did not respond to questions about the date either version of the proposal was submitted. The key difference between the two is that in one of them Steel City Pops requests to be the sole vendor on the Square.
That version of the proposal says, “It is preferred that Steel City Pops would be the sole frozen treat vendor on the Square during days not deemed ‘a special event’ by the city.”
In exchange, Steel City offered a 10 percent cut of its gross monthly sales made on the Square, which the city could claim or could designate toward another organization, like a local nonprofit.
By February 2019, King of Pops was anxious to return to its spot on the Square.
King of Pops sent over a vending proposal in February 2019. The King of Pops proposal did not request that the city make the company the sole vendor on the Square. The company offered to pay the city a monthly cart rent fee at a rate to be determined. The company also offered to donate 15 percent of its Friday proceeds to City Schools of Decatur.
On March 12, 2019 Baylis had good news for Steel City Pops and bad news for King of Pops.
She told Frank Robertson, a manager at Steel City Pops, “We have approved your request to sell on the Square and Harmony Park.”
She said the proposal would go to the City Commission for final approval. Baylis then emailed City Manager Andrea Arnold to let her know she would ask for the commission’s approval to allow Steel City to vend on the Square and in Harmony Park. Robertson asked if it would be “taboo” for Steel City Pops to bring some popsicles to the March 18 City Commission meeting. Baylis replied, “It may be taboo to bring them since they are doing an approval that night but thank you.”
Steel City Pops’ proposal wasn’t in the commission’s March 18 agenda packet. Neither popsicle company was mentioned during the meeting.
The same day Steel City Pops learned it would be vending on the Square, March 12, 2019, Baylis broke the bad news to King of Pops. In an email to King of Pops Territory Manager Mandi Pina, Baylis said, “We have reviewed your proposal with several others and at this time we have decided to go in another direction.”
It’s not clear if the city received any other proposals besides the ones from Steel City Pops and King of Pops. Baylis initially said that she had only received inquiries from Steel City Pops, King of Pops and some jewelry vendors.
Menne said that the other proposals were delivered by phone. She did not immediately respond to a question about what companies made the other proposals.
Pina replied to Baylis, asking for an explanation. What did the city mean by “going in another direction”? She also asked if King of Pops would be able to vend at the local festivals this year.
Baylis explained that the city had selected Steel City Pops to vend on the Square and said the festivals are organized by nonprofits and they select their own vendors. Baylis said the city had no involvement in that selection process. (Editor’s note: Part 2 of the “Dethroned” series covers city officials’ outreach to local festivals on behalf of Steel City Pops. To read that story, click here.)
City Manager Arnold said the Square and Harmony Park vending proposals didn’t go through a request for proposal or bid process. The city’s rules do not require it.
The city’s rules also didn’t require the city to take bids on a program that allowed Steel City Pops to vend at McKoy Pool.
Pops at the pool
In July of 2018, Menne, the assistant city manager, suggested a new “pilot project” for the city.
She emailed then-City Manager Peggy Merriss with a proposal to allow Steel City Pops to vend at Decatur’s McKoy Pool through the end of the 2018 pool season.
“If it is successful, we might want to consider this as an option for other Decatur-based businesses (Jeni’s and Butter & Cream) for 2019 allowing them to rotate dates, times and pools,” Menne said.
As part of the agreement, Steel City agreed to donate 10 percent of its pool sales to the Mary Miller Youth Fund, which helps children who can’t afford after school, camp and recreation program fees.
Merriss replied that the idea was worth testing out to see if it could be implemented at the city’s other pools.
Greg White, the city’s Active Living Director, said in a recent interview that the program was only used at one pool in 2018 and there’s been no discussion about bringing it back this year or expanding it to other pools.
The program wasn’t advertised to other potential vendors.
Stacy Gunther, owner of Butter & Cream, wasn’t aware of the pool vending opportunity until she was interviewed for this story.
“Man, why didn’t we jump on that?” Gunther said. As to why Butter & Cream didn’t get a crack at pool vending, Gunther said, “I didn’t think to ask.”
Menne mentioned that Butter & Cream had also asked questions about King of Pops vending on the Square.
Gunther said she inquired about the space because she was “just curious” and said she wasn’t complaining about King of Pops being there. She was more concerned about another ice cream vendor who she said was operating in the Square.
Gunther said she wasn’t bothered by King of Pops’ presence on the Square.
“I don’t care if they’re there,” Gunther said. “I would like to have the opportunity to be there as well. I don’t want them to be there and I can’t be there. I pay a lot of rent. I pay a lot of taxes. I employ a lot of local people.”
The emails show Elissa Pichulik, whose family owns the building that was formerly home to Cakes & Ale, asked in May 2018 whether a potential tenant would be able to vend on the Square like King of Pops.
Lee with the city told her that King of Pops was selling under an old program that was coming to an end and that the city would be launching a new food cart program. She said Pichulik’s tenant was welcome to apply once the new program was in place.
Pichulik recently said the new vendor cart policy the city ultimately adopted “feels very exclusionary.”
She said King of Pops reached out to Pichulik’s sister asking about renting a space in Decatur.
“That’s how they could get around this,” Pichulik said.
A problem for Decatur
Matthew Maguire, an Atlanta attorney who deals in government contract law, said King of Pops would have grounds to sue the city based on the wording of the 2017 ordinance the city adopted regulating food carts.
“King of Pops has a right to a permit under this ordinance,” Maguire said. “I’m assuming they meet all the requirements and the only reason they’re being denied is because they don’t have a brick and mortar business in Decatur and that’s not spelled out in here as the basis for denying a permit.”
Hans Utz, the former deputy Chief Operating Officer for the city of Atlanta who occasionally writes for Decaturish, said the lack of a formal process for the vendor cart program and lack of a formal policy about favoring local businesses is a problem for the city.
“It is not appropriate for a municipality to apply unwritten and unauthorized preferences toward businesses seeking to benefit from the public square, even if the businesses are local,” Utz said. “The only way to make this a free and fair policy would be to enact the preferences for local businesses into law, with clear rules for how the preferences will be weighed and applied, as a part of the permitting or procurement process.”
Scott Amey, general counsel for the nonpartisan watchdog group Project on Government Oversight, said a formal policy would be helpful for potential vendors so they would know “what the playing field is and how award decisions are made.”
“It sounds as if the city may want to go back and rethink some of its rules and policies for favoring businesses over others and whether that’s in the best interest of the city government and the citizens there,” Amey said.