License Commission

Minutes for the Lowell License Commission meeting, Thursday, August 22, 2013 at 6:30 p.m., Council Chamber, 2nd floor, City Hall, 375 Merrimack St., Lowell, MA 01852 Present: Brian Akashian, Commissioner (Chairman), Cliff Krieger, Commissioner, Captain Jack Webb of the Lowell police department, Kerry Regan, Asst. City Solicitor The Commission reviewed the following special one-day license applications for malt beverages & wines only, or either one from Christine Cheuk-Trainor of Aramark for Friday, September 13, 2013, 6:00 p.m. to 9:00 p.m. The event is Senior Class Luau for UMass-Lowell Student Activity Organization to be held at UMass-Lowell Bellegarde Boathouse, 500 Pawtucket Blvd. Tracy Martino was present to represent Christine Cheuk-Trainor who could not be present. Tracy Martino answered a question from Commissioner Krieger, stating that the event is for the Senior Class; each person will be carded. The Commission reviewed the application of Corey Belanger [present] of Major’s Pub for Saturday, September 7, 2013 from 8:00 p.m. to 11:30 p.m. The event is Brew-Fest, micro brew beer tasting, to be held at the Athenian Corner parking lot @ Shattuck and Market Sts. Motion by Commissioner Akashian, second by Commissioner Krieger, to approve licenses for Christine Cheuk-Trainor for September 13, 2013 and Corey Belanger for September 7, 2013; so voted. The Commission reviewed the applications for special event permit for amplification of sound by Manny Cavaleiro of Cavaleiro's Restaurant, MC Restaurants, Inc., 573 Lawrence St. for the following: sound system for band, summer party at Cavaleiro's outdoor café, Saturday, August 24, 2013, September 14, 21, 28, 2013 from 8:00 p.m. to 12:00 mid., each date. Manny Cavaleiro was present. Commissioner Akashian reminded Mr. Cavaleiro about the “common sense” approach to the volume of amplification in order to not upset the neighbors. Motion by Commissioner Krieger, second by Commissioner Akashian, to approve licenses for MC Restaurants, Inc., dba Cavaleiro’s Restaurant, Manny Cavaleiro, Manager, for August 24, September 14, 21, 28 - 2013; so voted. The Commission reviewed the license application for public amusement for carnival by Dean & Flynn Inc., dba Fiesta Shows of Seabrook, NH, John A. Flynn [present], representative, for Fiesta Shows Carnival at Welcome/Fiesta Field, 351-501 Pawtucket Blvd., for Friday, September 6, and Saturday, September 7, 2013. Commissioner Akashian asked Mr. Flynn of the number of years that Fiesta Shows has promoted the carnivals in Lowell; Mr. Flynn stated 27years. Commissioner Akashian inquired about applications for a beer and wine concession that had been scheduled; Mr. Flynn confirmed the Executive Secretary report that applications were withdrawn; there will be no beer and wine concession on September 6, 7, 8, 2013. Motion by Commissioner Krieger, second by Commissioner Akashian, to approve Carnival license for Dean & Flynn Inc., dba Fiesta Shows of Seabrook, NH for September 6, 7 – 2013 at Welcome/Fiesta Field; so voted. The Executive Secretary reported that Atty. Raymond T. Weicker identified himself as the legal counsel for Hayhurst Group, Inc. in an email received late Tuesday afternoon, August 20, 2013, in which he requested the continuance of hearing scheduled for this meeting. Commissioner Akashian stated that Atty. Weicker is looking for material from the District Attorney’s office relating to a pending complaint in the District Court regarding [Kevin] Hayhurst. Asst. Solicitor Regan stated the Law department had no objection to the hearing being continued. The Commission, on a motion by Commissioner Akashian, second Commissioner Krieger, voted to continue the hearing to September 12, 2013 on the allegation of misconduct as charged by Deborah Friedl, Interim Superintendent of Police, against Hayhurst Group, Inc., dba Finn’s Pub, 76-86 Merrimack St., Kevin Hayhurst, Manager, all alcoholic beverages Restaurant licensee, date of alleged violation May 4, 2013 – Section 1.16 of License Commission Regulations Manager’s Responsibilities, and Section 1.20 Illegal Activities. The Commission opened the hearing on the allegation of misconduct as charged by Deborah Friedl, Interim Superintendent of Police, against L & S Liquors, Inc., 2 Dover St., Bun Song Chhuon, Mgr., all alcoholic beverages Package Store, for failure in compliance check conducted by Lowell Police Special Investigations, a violation of chapter 138, section 34, MGL. Mike (Bun Song) Chhuon and Atty. Catherine Flood, legal counsel for L & S. Liquors were present. Atty. Flood when asked by Commissioner Akashian waived the reading of the police report. Captain Webb read the Superintendent’s written summary of the incident dated May 7, 2013. Atty. Flood stated that the manager was not present during the incident; the employee, during the incident, is not working [for] the licensee. Commissioner Krieger questioned Mike Chhuon about prior incidents [violations]; Mr. Chhuon acknowledged that King Liquors [326 Fletcher St.] for which he is manager of record, had been cited for failing to check identification in a compliance check. License Commission minutes for August 22, 2013 1 of 4 Commissioner Akashian stated that the compliance check is a teaching tool. Motion by Commissioner Akashian, second by Commissioner Krieger, to place the Superintendent’s complaint on file; so voted. The Commission opened the hearing on the allegations of misconduct as charged by Deborah Friedl, Interim Superintendent of Police, against The Middle Street Village, Inc., d/b/a The Village Smokehouse, 92-98 Middle St., Alan F. Kaplan, Mgr., all alcoholic beverages Restaurant licensee, date of alleged violations April 25, 2013 - M.G. L. c. 138, s. 34, sale or delivery of alcohol beverage to person under 21 years of age; and Massachusetts regulation 204 CMR 2.05 (2), to wit: violation of M.G.L. c. 138, s. 34, and violation of M.G.L. c. 94C (Controlled Substances Act). The following individuals were present: Alan F. Kaplan, Timothy Kelleher, Attorney Robert L. Allen, Jr., legal counsel for The Village Smokehouse, Lowell police officers Lt. Barry Golner and Detective Christal Downs. Atty. Allen at the outset thanked the Commission for the continuance of hearing from July 18, 2013. Atty. Allen waived reading of the police report. Captain Webb read the letter from the Superintendent of Police; there were the results reported by [Massachusetts State Police Forensic Services Group]. Commissioner Akashian questioned Lt. Golner. Lt. Golner stated that Lowell Police [Special Investigations] received information that kids were going downstairs, information that came from another police officer; there was a female [patron] underage [in possession of an alcohol beverage]; there was a female coming toward us, 19 years of age, not drinking; bouncer lead us to the basement, . . . no one in there, [set-up as] a small lounge, T.V., chairs . . . [police saw] corner of plastic bags, . . . consistent with narcotics, seized bags. Lt. Golner described closing of bags, all bags; had conversation with Mr. Kelleher; he [Kelleher] stated probably find it is “molly” which is a form of ecstasy, a regulated Class C [Controlled Substance]. Lt. Golner read aloud the finding of laboratory report from the Massachusetts State Police Forensic Services Group. Commissioner Krieger asked Lt. Golner about “bath salts;” Lt. Golner stated [salts] are federally regulated, used for cutting substance. Detective Callahan and Lt. Golner went downstairs. Commissioner Akashian stated the [issuance] of the wrist band was for patrons under 21 . . . not drinking. Attorney Allen questioned Lt. Golner; Lt. Golner stated in response to question . . . “outside licensed premises” [basement]. Lt. Golner stated that no user seen by [police] of drugs. Atty. Allen described the floor plan of the basement; the plan was presented to the Commission for review as Atty. Allen proceeded to explain. Atty. Allen questioned Timothy Kelleher, an owner of The Middle Street Village, Inc. Mr. Kelleher stated he arrived at the [Village Smokehouse] at 8:30 p.m.; the [licensee] was having an 18+ night; two employees were carding [patrons]; police officer stayed close; he had an initial conversation with Lt. Golner, noting that he is familiar with the police officer. Mr. Kelleher stated that [Lowell] police have come-in seven (7) or eight (8) times; he has had training for employees. Atty. Allen questioned Mr. Kelleher about the description of the basement. Mr. Kelleher stated the area is for staff only, other employees; no one else [allowed] in basement. Mr. Kelleher stated that no drug use seen [in the] basement. Mr. Kelleher stated that there is a full-time cleaner. Commissioner Akashian read aloud Lowell License Commission regulation 1.16 MANAGER’S RESPONSIBILITIES: The Manager shall at all times maintain order and decorum in the premises, in all immediately surrounding areas adjacent to the licensed premises, and in any parking lot provided by the licensee for use by its patrons. The Manager shall cooperate in all ways with City officials in ensuring safe and orderly facilities. The Manager shall ensure that there shall be no disorder, indecency, prostitution, lewdness, illegal gambling, misconduct, or any other disturbance permitted on the licensed premises, and in any parking lot provided by the licensee for use by its patrons. The Manager will ensure that noise does not become disturbing to abutters and/or neighbors. In all instances where the police are called to the licensed premises, regardless of the extent or severity of any incident involving people in or on the premises, the Licensee or Manager must submit to the Lowell License Commission and the Lowell Police Department within forty-eight (48) hours of the close of business, a complete and accurate written report of the incident; such report will advise them of all pertinent facts including, but not limited to: a. parties involved, by name; b. date and time of the incident; c. action taken by the Licensee or manager; d. description of the incident including damages and any injuries; and License Commission minutes for August 22, 2013 2 of 4  e. name of Manager responsible for the premises at the time of the incident along with any other employees present at the time of the incident. Commissioner Akashian encouraged Mr. Kelleher to talk to police; there is jurisdiction even in the basement in my eyes, maintain order. Mr. Kelleher stated some patronshave gone to the basement to use the bathroom. Commissioner Akashian questioned Mr. Kelleher about under-age drinking. Mr. Kelleher stated we didn’t use wrist bands that night . . . detail officer will not check ID. Asst. Solicitor Regan stated the number of times there has been police presence [at Village Smokehouse]. Commissioner Krieger asked Captain Webb because of a contolled substance will the matter be addressed by the District Attorney [office]; Captain Webb stated there is no intention of going to District Court. Commissioner Akashian questioned Mr. Kelleher about the sale of a lot of [bottled] water; Mr. Kelleher stated [sale] on Saturday night [April 20, 2013]. Commissioner Krieger questioned Captain Webb about the lab report; Captain Webb stated the findings were cocaine and ecstasy. Commissioner Akashian stated what is of concern to me, part of establishment, big issue . . . we [are] told, underage drinking not tolerated . . . getting out of hand. Atty. Allen stated the basement is really clean, clean restaurant; it is odd to them [management]. Commissioner Akashian stated [to Atty. Allen] you are not insinuating what I think you are . . . Atty. Allen states not insinuating anything; we have been relatively good; to clients [management] door is to stay locked; very troubling to us; a mistake relative to the underage patron. Commissioner Krieger cited a disgruntled employee as example; Atty. Allen stated kitchen staff has the most access [to basement], the only thing that makes sense. Asst. Solicitor Regan questioned Lt. Golner. Lt. Golner stated it would surprise me, known drug dealers that frequent the bar; three (3) years ago there were several violations [at the Village Smokehouse, the investigation involved ABCC investigators. Lt. Golner stated [current investigation] information came from a Lowell police officer . . . told of drug use in the basement, probably more drug use downstairs. Asst. Solicitor Regan questioned Detective Downs. Detective Downs stated that she asked [underage patron] for identification which the patron presented to the officer. The patron at the time Detective Downs identified herself as a police officer attempted to pass off the drink [whiskey sour] in her possession to someone in her company. Commissioner Akashian cited two (2) violations on April 25, 2013, sale/service of alocohol beverage to a person under the age of 21 years, and the presence of controlled substances [drugs without physician’s prescription] on the licensed premises. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to find the licensee, The Middle Street Village, Inc. [license # 063000212], in violation of: MGL Chapter 138, section 34 – sale, delivery or furnishing alcoholic beverages to persons under twenty-one years of age; employment of persons under eighteen years of age [1-count]. 204 CMR 2.00 Regulations of the Alcoholic Beverages Control Commission 204-2.05: Licensed Premises (2) No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance or illegality of any kind to the place in or on the licensed premises. The licensee shall be responsible therefor, whether present or not, to wit: violation of MGL chapter 138, section 34 [1-count]. 204 CMR 2.00 Regulations of the Alcoholic Beverages Control Commission 204-2.05: Licensed Premises (2) No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance or illegality of any kind to the place in or on the licensed premises. The licensee shall be responsible therefor, whether present or not, to wit: violation Massachusetts General Law Chapter 94C (Controlled Substances Act) [3-plastic bags containing residue of Cocaine, a Class B Controlled Substance, and Methylone, a Class C Controlled Substance]. The Commission voted to suspend the all alcoholic beverages Restaurant license, common victualler, and entertainment license for live music, disc jockey, and juke box, granted and issued for calendar year 2013 to The Middle Street Village, Inc. for premises at 92-98 Middle Street. The suspension period is for twenty-one (21) days and is to commence on Tuesday, September 10, 2013 at 8:00 a.m.; furthermore, the License Commission voted to suspend ten (10) days of said suspension and to hold said days in abeyance until September 10, 2014. The License Commission voted to add three (3) additional days to the suspension period as a result of the licensing board’s action on April 11, 2013 to suspend the all alcoholic beverages Restaurant license for three (3) days, and to hold said suspension in abeyance until April 11, 2014. The Commission reviewed the application by Club Passe-Temps of Lowell, Mass., all alcoholic beverages Club licensee at 369-371 Moody Street, for change of manager from David Ouellette to Robert Arcand of Lowell. Robert Arcand was present. The Commission questioned Mr. Arcand about his experience; Mr. Arcand explained that in his capacity as an employee of the Passe-Temps Club he is a bartender, works 20 hours per week; there are four employees, bartenders, License Commission minutes for August 22, 2013 3 of 4 T.I.P.S. trained. He has been a licensee for one-day events off the club premises without issue. Mr. Arcand stated the club has 250 members; members have been issued key-cards, guests are signed-in by members. The Commission discussed the matter of a recent decision of the Alcoholic Beverages Control Commission affecting the club’s liquor license for an indefinite period of time; the question of voting to enter into executive session was raised by Commissioner Krieger. The Commission finds the application for manager change from David Ouellette is a pro-active measure of the club licensee. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to approve Robert Arcand as manager of record for Club Passe-Temps of Lowell, Mass. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to ratify the issuance of a special one-day license to sell/dispense malt beverages & wines only, or either one to Manuel S. Pais of Portuguese- American Center, Inc. for Saturday, August 17, 2013 from 1:00 p.m. to 6:00 p.m. The event: members outing held at the parking lot of club adjacent to Chapel Street. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to ratify the following: The cancellation of the special one-day license for wines only to Alan Nidle of Zeitgeist Gallery, 167 Market St., art opening, Saturday, August 10, 2013, 6:30 p.m. to 9:30 p.m., granted August 8, 2013 but not issued. The amendment of special one-day license granted June 6, 2013, #62SP2013, to Steve Syverson, President, Arts League of Lowell, from date of September 26, 2013 to new date of September 14, 2013; event to be held at 307 Market Street, hours 4 p.m. to 6 p.m. To place the following communication on file from Demakis Law Offices, P.C. re: 99 Restaurant & Pub, 850 Chelmsford St., Lowell – announcement of a five days closure October 6 - 10, 2013 for refurbishment of licensed premises [ref. License Commission regulation 1.07] The Commission reviewed the schedule of meetings for the balance of calendar year 2013; Commissioner Akashian and Commissioner Krieger discussed the present situation in which other local boards have bi-monthly meetings in the Council Chamber, and that a License Commission meeting schedule is limited to those days not reserved by other boards; that Lowell Telecommunications Corporation (LTC) will transmit meetings held in the Council Chamber via live cablecast. The License Commission cannot accommodate a meeting schedule of the Greater Lowell Technical High School. The Commission approved the following dates for regular meetings to be held in the Council Chamber at 6:30 p.m.: Thursday, September 12, 26, October 10, 24, November 7, 21, December 5, 19 - 2013. On a motion by Commissioner Krieger, second by Commissioner Akashian, it was voted to accept the minutes of meeting for August 8, 2013. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to adjourn the meeting at 7:50 p.m., respectfully submitted: Ryan Wynn, Executive Secretary [present at meeting]. License Commission minutes for August 22, 2013 4 of 4