Frayed Pride and Fried Pickles

One family built a little restaurant in Plaza Midwood called The Penguin. Three friends reinvented it. A neighborhood adopted it, then a city claimed it. They all thought they owned it. Then, one day last fall, all hell broke loose


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The concept of a franchise has been around since the nineteenth century, but it really got going in the 1950s and 1960, when places like 7-Eleven, McDonald’s, and Dunkin’ Donuts popped up. Franchises are consistent. The same. The brand is important. The logo is crucial. “The public demands uniformity,” reads one industry website, “and, through franchising, gets it.”

Martin Sprock is wearing a blue 
sweater and a white Penguin baseball cap with blond hair poking out of the sides. He’s easily excitable. When he talks shop, he talks with his hands. “People look at franchising all the time,” Sprock says. “It’s a way to expand your business without having to borrow so much money from the bank. That’s all it is.”

Sprock grew up in Greensboro, graduated from UNC-Chapel Hill in 1987, and moved out to Aspen, Colorado, where he bused tables and washed dishes. Later, he moved to Atlanta to get into the restaurant business. He got into bars for a while, he says. Then he started opening Planet Smoothies. Then he took over brands like Moe’s and the Flying Biscuit. He tried to keep things fun and exciting, putting stuff on the menu that was, in his words, “braggable but also healthy."

The company Sprock founded, Raving Brands, expanded quickly, sucking up new brands and restaurants and franchising them out by the hundreds. He made Raving Brands into one of the biggest franchisers in the nation before selling most of the pieces. Now he’s started over with Big Game Brands. It owns the Flying Biscuit Café and Monkey Joe’s brands. (The Charlotte stores are owned and operated by a separate local company with which Sprock is not involved.) An Italian-themed restaurant is coming soon.

In short, he knows what sells. If you don’t like it, that’s OK. A lot of other people will.

Five years ago, while he was still living in Atlanta, Sprock came up to Charlotte and fell in love with a little Plaza Midwood drive-in. He liked the name. He liked the brand. He pictured The Penguin in big cities and trendy neighborhoods across the country. He walked in one day, like several franchisers had done before, and started talking. This time, King and Rowe listened.

“I made a deal with ’em,” Sprock says. “It took four, five, or six meetings and six months, but we put a deal together. They were the first ones to embrace franchising The Penguin and expanding The Penguin. Sell it out if you will. I didn’t try to buy this particular little restaurant right here. I was buying the name and the marks and the rights to expand The Penguin, all over into fifty states possibly.”

Sprock’s lawyers e-mailed a letter of intent to Rowe on July 21, 2008. In it, Sprock offered Rowe, King, and Auten $750,000 to split among themselves. In return, the three of them would get a stake in the new franchising company. They would turn over all sorts of know-how. They would turn over the logo. And they could keep on running The Penguin on Thomas and Commonwealth.

The lawyers went to work. And then, Sprock says, they discovered that King and Rowe didn’t own the property. Then they dug a little deeper and found out that they didn’t own The Penguin name, either. The Ballentines did. The Ballentines were never mentioned in the letter.

***

Lisa Ballentine is Jim’s youngest daughter. She’s forty now, but looks younger, the product of her thirteen years as a certified personal trainer. She runs several Gold’s Gyms up around Lake Norman. She opened her first around the time her father retired.

Ballentine walks around inside the reopened Penguin in a black T-shirt and studded leather jacket, joking with the young new employees and showing off pictures of family that now hang from the pine-paneled walls. There’s a niece. There’s a nephew. There’s a guy who used to come in there in the nineties. There’s a copy of the original menu over there in the corner, above the big round booth. A Coke cost 10 cents. Beer went for 30.

Her eyes light up when she sees the pictures of her father. There’s Jim behind the counter. There’s Jim holding a pistol. There’s Jim wearing his World War II Army helmet and hanging out with his drinking buddies.

It’s her father’s restaurant again. To her, it’s always been her father’s restaurant.

Lisa worked there as a kid. She peeled potatoes and made coleslaw in the back. She worked the register. This is where she got to know her father. “This was very much home to me,” she says. “This is where my dad was.”

Lisa speaks for the family now. She says King and Rowe tried to sell her father’s restaurant out from under them. “And I’ll never forget my mother crying, calling me one day and saying, ‘I lost it all.’ ” No, Lisa said. That won’t happen.

Jean had been in charge since Jim Ballentine died in January 2007 at age eighty (his obituary listed Greg Auten, Jimmy King, and Brian Rowe as “extended family”). Three weeks after Jim’s death, Lisa says, the guys came to Jean and asked her if they could use the Penguin name for something called The Penguin Grill, an ill-fated kitchen at the now-former Alley Cat nightclub uptown. “She said as long as you’re running The Penguin,” Rowe says, “you can use the name.” There’s a document to prove it. Both sides agree on that. But Lisa says the guys took advantage of Jean’s grief.

Rowe felt that the relationship he, King, and Auten had with the Ballentines was simple. The guys were tenants. Jean Ballentine was the landlord. The family owned the building and, yes, the name, but the guys owned the business. And the business was the thing that was going to be franchised, and to Rowe and King, that was theirs. They felt, at first, that they had permission to use the name. But after the lawyers got involved, Jean was the one who ended up owning the trademark.

Both sides racked up thousands of dollars in legal bills. Sprock backed out. The deal didn’t happen. Each side said the other wanted too much control. Rowe said a franchised Penguin would be watered down, and that’s why he and King backed out. The Ballentines began to think Rowe and King couldn’t be trusted. Everyone alludes to misrepresentations and lawyers and documents that would prove their case if you really wanted to read them.

The guys started branching out in ways that didn’t include the now-pesky Penguin name. They planned on making a restaurant out of the old Triple G Automotive garage with the red, white, and blue Volkswagen on the roof at the corner of Freedom and Morehead on the west side, near where Auten grew up. It would be called Pinky’s. They quickly realized that with five owners (King, Rowe and Auten, plus two Penguin employees), nobody would be able to make money on it. Auten offered to sell his share of The Penguin if King and Rowe sold their share of Pinky’s. And in January 2010, Greg Auten left.

On May 7, 2010, three years to the day after the TV show that changed The Penguin from a bar into a tourist attraction, Rowe and King got together with Andy Kastanas. Andy runs Soul Gastrolounge on Pecan and Central. He also used to run Alley Cat during The Penguin Grill days, and was Rowe’s boss at Mythos way back when. All three signed a lease to take over the Diamond Restaurant, another Plaza Midwood landmark that sat in a brick building down the street. Rowe says they thought it would be cool to run two historic restaurants not just in the same neighborhood, but on the same block.

The Ballentines decided not to renew. The guys were finished. “They know why. They know why,” says Lisa. “For a million reasons, they know why.”

After that, Lisa says she sat down with Rowe and King over dinner to talk about what would happen to The Penguin. She wanted to make them owners in her father’s restaurant. She said she wanted it to be a partnership. You don’t own it now, she said. You’re just paying rent. She asked for some upgrades, like a better accounting system. Lisa Ballentine was also suspicious of the restaurant down the block. “I’m not going to let it be that napkins are flying out the back door ’cause the Diamond’s out of napkins. Or beers. Or liquor. Or mayonnaise.”

Rowe says the Ballentines wanted 51 percent of the business. He said no way. It was their business. The family just owned the building and the name. They had never owned the business part. And now they wanted to take more than half? The family had two big bargaining chips: the name and the building. Without a new lease, Rowe and King would leave with nothing except for the kitchen equipment and the jukebox. They would leave with none of the equity they felt they had built in The Penguin name—a name they did not own.

Sometime in 2010, the Ballentine family got back in touch with Sprock to come in and run the place, in part because Sprock said he would keep The Penguin just like it was. “I think we’re the best guys at buying old brands and inching them along and making them a little better without completely ruining them,” he says.

King and Rowe’s ten-year lease would run out on November 1. With the building and logo firmly in the family name, the Ballentines decided not to renew. The guys were finished. “They know why. They know why,” says Lisa. “For a million reasons, they know why.”

Brownlow remembers the night when he found out. “Jimmy called me back in the office one night in late September and just said, ‘We lost it.’ ”

On a Monday morning in late September, the news hit Facebook. Hard. Somebody named Charlotte Absorber, with a profile picture of a town crier, posted a picture of the grotesque, grinning Danny DeVito version of the villainous Penguin from Batman Returns, saying the Penguin, as we know it, was over. “Boycott at all costs!” the Absorber wrote. The news spread like a virus. Commenters screamed about it on blogs. Twitterers quickly started organizing their angst with a hashtag called #Penguingate. The Ballentines were called thieves and corporate sellouts. King and Rowe were called martyrs.

Rowe and Ballentine have something in common: neither of them is on Facebook. Rowe was stunned by the online push to boycott the new Penguin. Lisa is bewildered by the new reality of social media, where sarcastic insults and conspiracy theories can become fact when they’re repeated and retweeted often enough. Is there a dress code at The Penguin? No, says Lisa. Yes, says Facebook.

Rowe and King said the last day for them and their staff would be October 24. On that night, people showed up by the hundreds. Guys tore off their shirts and jumped on cars. People smoked inside. They drank outside. Both were against the law. Cops looked on. Enforcement was more trouble than it was worth.

A waiter came out with the last basket of fried pickles and started handing them out.

Courtney remembers touching a door handle. She realized it would be the last time she’d hold it in her hand at The Penguin. Tears welled up in her eyes.

We invite your responses and discussion. Please refrain from personal attacks, profanity, commercial promotion, or non sequiturs.

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