License Commission

Meeting of License Commission, Thursday, April 5, 2012 at 6:30 p.m., Council Chamber, 2nd floor, City Hall, 375 Merrimack St., Lowell, MA 01852 Present: Brian Akashian, Commissioner, Ray Weicker, Commissioner, Eric Slagle, Asst. City Solicitor, Captain Jack Webb of Lowell Police Dept., Robert Marsilia, Lowell Building Commissioner, Phil Lemire, Lowell Deputy Fire Chief, Lt. Carvalho of Lowell Fire Dept. Absent: Walter Bayliss, Commissioner At 6:35 p.m. Yousef A. Ayyub [present], manager of record for J & I Restaurant Incorporated, d/b/a Fortunato’s, stated to the Commission that his attorney is absent, the attorney [George R. Jabour] is in-route, caught in [motor vehicle] traffic. Motion by Commissioner Akashian to schedule hearing on allegations of misconduct against Mr. Jalapeno, Inc., malt beverages & wines only Restaurant at 124 Merrimack St. for Thursday, May 3, 2012 at 6:30 p.m., Council Chamber, second by Commissioner Weicker, vote: ayes - Commissioners Akashian and Weicker. Motion by Commissioner Akashian to recess meeting at 6:40 p.m., second by Commissioner Weicker, vote: ayes – Commissioners Akashian and Weicker At 7:00 p.m., Atty. George R. Jabour, legal counsel for J & I Restaurant Incorporated, arrived. Motion by Commissioner Weicker, second by Commissioner Akashian, to convene hearing, vote: ayes – Commissioners Weicker and Akashian. Atty. Jabour introduced himself; agreed to waive reading, when asked by the Commission, of Superintendent of Police letter of complaint alleging misconduct by J & I Restaurant Incorporated. Asst. City Solicitor Slagle stated the incident took place on February 10, 2012 at 1:33 a.m. Deputy Fire Chief Phil Lemire introduced himself; questioned by Asst. Solicitor Slagle. Deputy Lemire stated a spot check of [Fortunato’s] restaurant took place on February 4, 2012, there was a crowd at Fortunato’s night club, locked doors, spoke to owner about matter. Commissioner Akashian questioned Deputy Lemire, in response Deputy Lemire stated verbal order was given to owner. There was a notice of violation after incident of February 10th. Atty. Jabour questioned Deputy Lemire, who said he had spoken to Lt. Ryder of the Lowell Fire Dept. Atty. Jabour asked [Deputy Lemire] what did you tell before February 10? Deputy Lemire answered Fortunato’s had locked doors. Atty. Jabour stated to Deputy Lemire that client [Yousef Ayyub] has not been made aware. Deputy Lemire stated that responsible person was spoken to; doesn’t matter if owner was spoken to . . . Lt. Ryder would have made [licensee] aware. Meeting of License Commission April 5, 2012, page 1 of 5 Asst. Solicitor Slagle questioned Lt. Carvalho of Lowell Fire Dept. The Solicitor shows Lt. Carvalho pictures of Fortunato’s [copy of pictures presented to License Commission, which depict chairs and tables in storage] . . . Lt. Carvalho stated where there was an EXIT sign, egress was locked. Second photo from Asst. Solicitor to Lt. Carvalho . . . fire official asked for crowd manager . . . according to Lt. Carvalho, Mr. Ayyub is crowd manager. Commissioners Akashian and Weicker question Lt. Carvalho on the photos. Atty. Jabour questioned Lt. Carvalho on the crowd manager certificate. Lt. Carvalho stated that he was aware of the incident – there was a question and answer on documentation about the three inspections, one prior to and two after February 10th. Asst. City Solicitor Slagle stated he can’t see relevancy, states objection. Commissioner Weicker allows Atty. Jabour to continue. Commissioner Weicker states if any dispute on the presence of manager, any dispute on crowd control, were not produced. Commission dismissed Lt. Carvalho. Deputy Fire Chief Lemire is questioned by Asst. Solicitor Slagle. Deputy Lemire stated violations at Fortunato’s can be appealed; there was no appeal to the [State] Fire Marshall. Asst. Solicitor Slagle questioned Robert Marsilia, Lowell Building Commissioner, about the incident of February 10. Mr. Marsilia stated building had been used as a night club, other than restaurant, code violation, night club – definition based on Inspectional report, police report, and on-site inspection – certified for restaurant, not night club. Mr. Marsilia cites state building regulation, reference to Station night club. Atty. Jabour asked [Building Commissioner Marsilia] if there were any violations before February 10? Asst. Solicitor Slagle notes communication from Building Commissioner; Commissioners Weicker and Akashian agree. Police Officer David Bowler is questioned by Commissioner Weicker; Officer Bowler stated premises quite dark, there was a disc jockey, no food. Commissioner Akashian cites report on Club 44 . . . estimate crowd in excess of 200 . . . exit from one exit . . . question [to Officer Bowler] on age of patrons . . . Officer Bowler stated [patrons] under age 21, persons over 21. Commissioner Akashian asked Officer Bowler if owner was present . . . Officer Bowler stated “no,” employee of owner. Commissioner Akashian continued to question Officer Bowler about conversation with employee who was asked to contact owner . . . Officer Bowler stated [employee] attempted to call by cell; the response of female said caller had wrong number. Commissioner Weicker asked question; Commissioner Akashian asked question of the intoxication level. Officer Bowler responded [patrons] he encountered were highly intoxicated, extremely irrational. Meeting of License Commission April 5, 2012, page 2 of 5 Asst. Solicitor Slagle shows pictures, rear egress, why was it not open? [Pictures of d. j. booth shown to Officer Bowler] Officer Bowler was asked by Asst. Solicitor Slagle for his observations; Officer Bowler stated four (4) bottles of champagne; Officer Bowler asked that liquor license be produced . . . it was posted in the hallway, twelve (12) feet off of the floor. Atty. Jabour questioned Officer Bowler about pandemonium . . . private birthday party. Officer Bowler stated that there were twenty-two (22) attempts to call owner. Atty. Jabour makes reference to Mr. Corbin, citing paragraph in police officer’s report; also, a question of pepper spray, which was referenced in Officer Bowler’s report. Asst. Solicitor Slagle states his objection to the question/answer. Commission wants to streamline information. Question from Atty. Jabour to Officer Bowler . . . ever see drinking, [the] service of alcohol beverages [reference to intoxication as noted in police report]? Commissioner Akashian stated that it has been established that Officer Bowler did not see patrons served alcohol beverages. Commission voted to take a recess at 8:05 p.m. At 8:15 p.m., Commission reconvened hearing. Lt. Ed Dowling of the Lowell Police Dept. gave his eyewitness account, stated that there were blocked areas [at Fortunato’s Restaurant]. Commissioner Akashian asked Lt. Dowling for an estimate of the number of patrons. Lt. Dowling stated 200 people, place was packed. Commissioner Weicker asked Lt. Dowling if there had been a cover charge. Lt. Dowling stated that he did not know. Lt. Dowling was asked by Commissioner Weicker of the number of police officers that responded to the disturbance . . . Lt. Dowling stated over thirty (30) officers, Lowell, State, and UMass. Atty. Jabour questioned Lt. Dowling if there had been a birthday cake? Lt. Dowling stated yes . . . [and also stated] some patrons were intoxicated, some not. Officer Charles Orsborn stated that he went to Lowell General Hospital, spoke to Bernard Sanmero. Atty. Jabour asked Officer Orsborn if he asked Mr. Sanmero his age. Officer Orsborn confirmed that he did not ask to see drivers license of Mr. Sanmero. Atty. Jabour asked Officer Orsborn if he did a field sobriety test [with Mr. Sanmero]? Officer Orsborn said no. Lt. Frank Nobrega of the Lowell Police Dept. was present. Lt. Nobrega made reference to pictures, stated that at time of arrival [at Fortunato’s], he observed individual throw chair into crowd. Meeting of License Commission April 5, 2012, page 3 of 5 Commissioner Akashian asked Lt. Nobrega to describe scene in and around Fortunato’s. Asst. Solicitor Slagle questioned Lt. Nobrega as to door locked; Lt. Nobrega confirmed that door was locked. Atty. Jabour questioned Lt. Nobrega. Commissioner Akashian stated that at the City Council meeting [February 16, 2012] . . . the disc jockey at Fortunato’s said he was hired. Lt. Nobrega stated that he had no knowledge that d. j. was hired by Mr. Ayyub. Asst. Solicitor Slagle questioned Lt. Dowling . . . Lt. Dowling stated downtown assignment is permanent. Commissioner Weicker asked Lt. Dowling if he had seen similar activity [at Fortunato’s] . . . Lt. Dowling stated that he had noticed a change in December . . . there was a new sign prior to February 10th. Lt. Tom Siopes was not on the scene but spoke to the d. j. after the incident. Lt. Siopes stated that the d. j. stated that he had concerns that there was a lack of security. Atty. Jabour asked Lt. Siopes if he had knowledge of the owner. Lt. Siopes said that he had no problem with owner. Atty. Jabour asked if it was a one time episode. Lt. Siopes stated I don’t know (of) prior incident. Commissioner Weicker asked Executive Secretary-License if there were prior incidents; Executive Secretary stated “none.” Atty. Jabour requested to read statement from Mr. Ayyoub . . . Asst. Solicitor Slagle voiced objection. Atty. Jabour stated that Mr. Ayyub has difficulty speaking . . . Mr. Ayyub asks for no revocation. Commissioner Weicker asked Atty. Jabour if he would waive hearing on earlier closing. Atty. Jabour stated yes. Commissioner Akashian invited Superintendent of Police Kenneth Lavallee to address License Commission and others present at the hearing. Superintendent Lavallee spoke of the police officers involved with the disturbance; of the downtown residents . . . incidents of the kind will not be tolerated. Asst. Solicitor Slagle addressed the License Commission, cited the certificate of inspection, his license is the first, responsibility, cites third party, cause for disciplinary action.. Meeting of License Commission April 5, 2012, page 4 of 5 Commissioner Akashian stated to Mr. Ayyub that employees are a reflection of you; five violations mentioned; complete lack of control by Manager Mr. Ayyub; a week before – newspaper published “wild west” headline – should have heightened sense of security . . . incident . . . people coming to City to take part in festivities . . . bar-owner – what is going on . . . Mr. Corbin hired to promote business [Forty Four at Fortunato’s] from restaurant to night-club . . . testimony from all of the officers, dangerous situation . . . no prior history . . . egregious violation . . . estimation [occupant load] above capacity, door is locked, pictures [show] chairs stacked . . . entertainment license taken away by Commission [suspension voted March 8, 2012] . . . no intention to run this way, whether Mr. Corbin or promoter, your responsibility, [Mr. Ayyub] did not have individuals on premises to control; employees not present here tonight . . . relative to complaint – violation for exceeding occupancy, chapter 148, section 34A – six (6) violations, blocked egress, property 204 CMR . . . Commissioner Weicker second the violations cited by Commissioner Akashian. Commissioner Akashian recommended ninety (90) days suspension . . . contingent when proper permits issued to re-open, decrease hours to 11 p.m.; heretofore entertainment license, live music and radio, no disc jockey. Commissioner Weicker stated a clear violation, the blocked egress . . . altercations mentioned, fortunate police were able to respond quickly . . . patrons couldn’t get out – means of egress blocked; licensees turned to less than savory promotions . . . [Commissioner Weicker] cites Café Europa crowds . . . [Fortunato’s] closed for last two (2) months, inclined to cite time served but less than savory types – change observed by Lt. Dowling with establishment; second – ninety (90) days suspension not conditioned to re-opening upon passing inspection . . . violation on egress; alcohol beverages reference to ABCC decision . . . hearsay [on the matter of] patrons . . . permitting illegalities [licensee] responsible for means of egress – ninety (90) days suspension Motion by Commissioner Weicker - decrease hours [for sales and service of alcoholic beverages, common victualler, and entertainment] to 11 p.m.; suspension of licenses; no disc jockey entertainment; cannot transfer [alcohol beverages license] pending licensee is to return to License Commission - effective April 5, 2012 – second by Commissioner Akashian Vote: ayes – Commissioner Weicker, Commissioner Akashian Motion by Commissioner Akashian, second by Commissioner Weicker, to adjourn meeting at 9:30 p.m. Vote: ayes - Commissioners Akashian, Weicker. Respectfully submitted Executive Secretary-License May 9, 2012 Meeting of License Commission April 5, 2012, page 5 of 5