License Commission

Minutes for the Lowell License Commission meeting, Thursday, September 12, 2013 at 6:45 p.m., Council Chamber, 2nd floor, City Hall, 375 Merrimack St., Lowell, MA 01852 Present: Brian Akashian, Commissioner (Chairman), Cliff Krieger, Commissioner, John Descoteaux, Commissioner, Captain Jack Webb of the Lowell police department, Kerry Regan, Asst. City Solicitor Commissioner Akashian convened the meeting by introducing Commissioner John Descoteaux with a warm welcome. Commissioner Descoteaux appointed by the City Manager, and received confirmation by the City Council on August 13, 2013. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to accept the minutes of meeting for August 22, 2013. The Commission reviewed the special one-day license applications for wines only Karen Boutet [present] of Zeitgeist Gallery, 167 Market Street, for the following: Fall Coop Show Reception, Thursday, September 12, 2013, 6:00 p.m. to 9:00 p.m. The Message is the Medium: Prints, Propaganda, and Persuasion Reception, Thursday, October 10, 2013, 6:00 p.m. to 9:00 p.m. Printmaking Reception, Saturday, October 26, 2013, 6:00 p.m. to 9:00 p.m. Art Opening, Saturday, November 9, 2013, 6:00 p.m. to 9:00 p.m. Ms. Boutet in response to questions from Commissioner Akashian stated it is her first time applying for license. A copy of the recent order delivered by a wholesale licensee was reviewed by the Commission. Commissioner Akashian stated that the licenses are in her name; you need to be in control. Ms. Boutet stated that there would be no wine for September 12, 2013. On a motion by Commissioner Krieger, second by Commissioner Descoteaux, the Commission voted to approve licenses to Karen Boutet for events October 10, October 26, and November 9, 2013. The Commission took no action on the application for September 12, 2013. The Commission reviewed the special one-day license applications for malt beverages & wines only, or either one William Fuller, Manager, The Bartending Service of New England, LLC, Lowell Memorial Auditorium, 50 East Merrimack St., The event is the Young Professionals of Greater Lowell - Reception, Thursday, September 19, 2013, 5:00 p.m. to 6:30 p.m. Nicole Phillips [present], Manager of The Bartending Service, representative William Fuller, Manager, The Bartending Service of New England, LLC, Lowell Memorial Auditorium, 50 East Merrimack St., The event is SmithFest 2013, Saturday, September 28, 2013, 5:00 p.m. to 12:00 midnight License Commission minutes for September 12, 2013 page 1 of 8 Penny K. Hamourgas [present] of Worthen Café for Sunday, September 29, 2013, 11:00 a.m. to 6:00 p.m. The event is the 11th Annual Jack Kerouac 5K; beer concession to be held in the enclosed parking lot at 152 Worthen St. Elizabeth Kegley [present] of the Merrimack Repertory Theatre, Liberty Hall, 50 East Merrimack St., Theatrical Performances by the Merrimack Repertory Theatre, September 19, 20, 21, 22, 26, 27, 28, 29, October 2, 3, 4, 5, 6, 9, 10, 11, 12, 13 – 2013 [18 dates], concession sales/service for forty-five (45) minutes prior to performance, and during fifteen (15) minute Jay Corea [present] of Aramark, for Friday, September 13, 2013, 3:00 p.m. to 5:30 p.m. The event is Engineering Employee Reception to be held at the UML Emerging Technology & Innovation Center, 40 University Ave. Archdeacon Donald P. Roberts of Anglican Diocese in New England for Friday, September 20, 2013, 5:00 p.m. to 6:00 p.m. The event is a VIP artist reception, private, to be held at the Lowell Memorial Auditorium, 50 East Merrimack St. Ann Conte [present] of the Development Office for ADNE, representative Voula Ioannidis [present] of the Holy Trinity Orthodox Church, for Saturday, September 28, 2013, 12:00 noon to 10:00 p.m. The event is the Holy Trinity Family Blend (Indoor Festival) to be held at the Hellenic American Academy Cultural Center, 41 Broadway. Commissioner Akashian stated to the applicants that the license is in your name, you need to be in complete control, check I.D.’s; if there is a problem don’t call 9-1-1 but dial the non-emergency line to the police station [978-937-3200]. Commissioner Akashian asked Nicole Phillips about the service for events at the Auditorium. On a motion by Commissioner Descoteaux, second by Commissioner Akashian, the Commission voted to approve licenses for William Fuller, Penny Hamourgas, Elizabeth Kegley, Jay Corea, Archdeacon Donald Roberts, and Voula Ioannidis. The Commission reviewed the applications for special event permit for amplification of sound Worthen House Café, Inc., Penny K. Hamourgas [present], Manager, for Sunday, September 29, 2013, 11:00 a.m. to 6:00 p.m., sound system for band and/or disc jockey at the parking lot 152 Worthen St. The event is the 11th Annual Jack Kerouac 5K. Mill City Grows (YWCA of Lowell), Francey Slater [present], representative, sound system for band, Saturday, September 28, 2013, 3:00 p.m. to 7:00 p.m., at Rotary Club Park Community Garden, Richmond Ave., off of Hudson St. License Commission minutes for September 12, 2013 page 2 of 8 Commissioner Akashian stated the special events permit for amplified sound is a common sense permit; the applications indicate the hours as responsible. Motion by Commissioner Akashian, second by Commissioner Krieger, the Commission voted to approve permits for Worthen House Café and Mill City Grows. 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 officers and directors. Robert Arcand and Atty. Phil Nyman were present to address questions of the Commission. Atty. Nyman stated that Robert Arcand is to succeed as manager of record; the A.B.C.C. has indicated a need for new officers, Mr. Ouellette does not appear anywhere on the application; the club is requesting that the A.B.C.C. revoke the suspension of license. Commissioner Krieger questioned if bar had problem conducting inside activity. Atty. Nyman stated no illegal activity, A.B.C.C. did not find anything illegal . . . [investigators] told to leave; the A.B.C.C. finds out that [club] hadn’t filed change of officers, forms; [club] had poor legal counsel [at hearing before the A.B.C. C.]; finding by A.B.C.C. that club violated rules. Commissioner Descoteaux questioned the status of the poker machines. Atty. Nyman stated there was nothing as for action by the A.B.C.C. about the [poker machines]. The Commission questioned Mr. Arcand about the application for change of officers and directors. On a motion by Commissioner Akashian, second by Commissioner Descoteaux, it was voted to approve the application for change of officers and directors by the Club Passe-Temps of Lowell, Mass; vote – ayes: unanimous. The Commission reviewed the application for change of manager by Hookslide Kelly’s LLC, all alcoholic beverages Restaurant licensee for premises at 19 Merrimack Street; proposed new manager is David E. Heeley Jr. of Haverhill, MA. Brian McInerney, owner and manager of record for Hookslide Kelly’s, and David Heeley were present. Commissioner Akashian questioned Mr. Heeley about his residency, and he has had prior experience as a manager. Mr. Heeley stated has had none with respect to managing a licensed establishment, but has been employed for almost four (4) years at Hookslide Kelly’s working security. Commissioner Akashian noted that there hasn’t been any issue. Mr. McInerney stated that [Mr. Heeley] has done a good job; he has been head of security. Mr. Heeley stated he will work 35 to 40 hours per week, and stated in response to a question from Commissioner Descoteaux that his work schedule will include Friday and Saturday nights. On a motion by Commissioner Krieger, second by Commissioner Descoteaux, it was voted to approve the application for change of manager by the Hookslide Kelly’s LLC; vote – ayes: unanimous. The Commission reviewed the application by Commonwealth Auto Sales & Repair Corp., Davi L. Borba, President, for used car Dealer license, Class II, premises at 639 Rogers Street. The licensee of record for 2013: Middlesex Auto Sales, Corp., Valdir L. Borba, President, 639 Rogers Street, license # 739-B, premises - an open lot approx. 70 feet by 125 feet with office trailer 12 ft. by 40 ft.; maximum number of motor vehicles for sale/storage is 15; no junk motor vehicles or parts thereof. Davi Borba and Valdir Borba were present. Commissioner Akashian questioned Davi Borba about the number of vehicles presently on the lot. Valdir Borba responded, stating fifteen (15). Commissioner Akashian asked Davi Borba the number of licenses in the City with his name; Davi Borba stated none elsewhere. Commissioner Akashian asked Davi Borba how he is to obtain the vehicles; Davi Borba responded that he would obtain vehicles License Commission minutes for September 12, 2013 page 3 of 8 through the [car] auction, and that he is an experienced buyer. Commissioner Akashian asked Davi Borba if he understood the rules and regulations on the sale and purchase of vehicles; Mr. Borba stated yes. Commissioner Akashian asked why is it that every time I drive by [lot] there are more than fifteen (15) vehicles . . . Davi Borba stated there are parked cars with license plates. Commissioner Krieger asked about the vehicles parked in the middle are of the lot . . . Davi Borba responded [indicating vehicles owned by customers]. Commissioner Akashian stated there seems to be a lot of cars on the lot. Commissioner Akashian questioned the legal right to the premises; Valdir Borba responds. On a motion by Commissioner Akashian, second by Commissioner Descoteaux, it was voted to continue the matter of the application to the next regular meeting in order that the applicant, Commonwealth Auto Sales & Repair Corp., can establish a legal right to the used car lot, to have a lease agreement; vote: ayes – Commissioner Akashian, Commissioner Descoteaux; nay – Commissioner Krieger. The Commission opened the hearing continued from August 22, 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. Atty. Raymond T. Weicker, legal counsel for Hayhurst Group, Inc. waived the reading of the police report. Captain Jack Webb of Lowell police department read the letter from Superintendent Friedl, outlining the allegations of misconduct on May 4, 2013 at the licensed established known as Finn’s Pub, premises 76-86 Merrimack St. Captain Webb stated that there is a discrepancy as to Ms. Costa’s statement to Lowell police; Ms. Costa had been on the first floor. Joshua Holmstrom appeared before the License Commission; he stated that he had no recollection of “being struck” on May 4th while at Finn’s Pub. Mr. Holmstrom stated he had swelling on his forehead, that he hit the ground, lost consciousness; a couple came up to him and said that he had been hit; [a] friend, people got wrestled to the ground. Commissioner Akashian thanked Mr. Holmstrom for his appearance and statement. Atty. Weicker objected to the statement where Ms. Costa had been on the first floor, not the second floor. Atty. Weicker stated the second floor is under construction, pictures [reflect the second floor not ready for occupancy]; Jenna Costa is not at the hearing to swear that she was on the first floor . . . [Weicker] object to the amended version . . . not hearsay. Commissioner Akashian comments on the affidavit filed by Lowell police of the sworn statement of Jenna Costa. Atty. Weicker states [a person] would be hard-pressed to see from the second floor [window, fronts Merrimack St.] to outside [sidewalk], would be a challenge at 7 p.m. at night [looking down] to the street level, to the curb where there are parked cars. Commissioner Akashian cites the affidavit of Jenna Costa’s word. Atty. Weicker states different conclusion. Commissioner Krieger states [Jenna Costa] didn’t say on second floor. Commissioner Akashian states only she [Costa] could see if she was on first floor. Atty. Weicker states there are gaping holes in [her] statement. Atty. Weicker presented an enlarged picture of Eric Finn. Atty. Weicker explained had removed a juke box off of the wall. Commissioner Akashian asked about the police complaint, citing paragraph 2 of License Commission regulation 1.16, was there a report. Atty. Weicker stated no; there has been only one report filed [per] my records request . . . Commissioner Descoteaux questioned Kevin Hayhurst [manager of record] about security. Mr. Hayhurst stated that he License Commission minutes for September 12, 2013 page 4 of 8 had one door guy, he was not expecting one hundred people . . . [Hayhurst] stated he had plenty of staff. Commissioner Descoteaux makes reference to statement [about] Eric Finn . . . two people checking I.D.’s . . . Commissioner Descoteaux states my concern is the 1st, 2nd stop, you have the 5th [stop], and you had 100 people who had been at other establishments. Mr. Hayhurst states [we] stopped dozens [of people]; there were 4 – 5 bartenders, T.I.P.S. certified. Atty. Weicker states he casts doubt on everything . . . we have person who won’t testify . . . written statement, telephone call this afternoon . . . every statement is outside . . . Commissioner Descoteaux states [patrons] saw juke box, [my] opinion [having been] previous bar owner, you can never ever put yourself as a central figure in an altercation, can I successfully diffuse . . . Mr. Hayhurst stated [he] let staff take care [of situation], six (6) [staff] assaulted. Commissioner Descoteaux stated why not call Lowell police department. Mr. Hayhurst comments about not calling. Atty. Weicker stated that [employees] had taken reasonable steps to save life of employee. Donald White appeared before the Commission; he stated that he had two boxes in hand as he attempted to go through crowd at Finn’s Pub, saw six or seven kids, this gentleman [directing his attention to Joshua Holmstrom] was with that group . . . saw bartender jump over bar; Kevin [Hayhurst] came over, with [Joshua Holmstrom] arguing back and forth, no punches thrown. Atty. White questioned Mr. White. Mr. White stated the Lowell police arrived within 5 minutes of the on-going incident. Commissioner Akashian thanked Mr. White for his appearance and statement. Chris Yianopoulos appeared before the Commission; he stated he is a bartender at Finn’s Pub. He witnessed a huge emotional break-out; he was pulling people off Eric Finn. Commissioner Akashian stated you did not call police; Mr. Yianopoulos responded that he was trying to get him [Eric Finn] off the floor. Eric Finn appeared before the Commission; he stated that he had been sitting at the end of the bar, that he had been hit by a kid; next thing bartender is picking me up off the floor. Mr. Finn stated that he was in no shape to call the police [after the assault]. Mr. Finn stated he talked to Mickey O’Keefe [Lowell police officer]. Mr. Finn stated police told to let them go. Mr. White addressed the Commission. He stated at Garcia-Brogan’s a lot of people trying to get into establishment, not a good thing with alcohol, honestly, ridiculous . . . most people worried about his health [Eric Finn] . . . emergency situation . . . trying to get people out of bar. Jerry McCarthy appeared before the Commission; he stated that he is a Finn’s Pub bartender; he was trying to direct people out of the door; that he did not call police because his first priority was to help Eric (Finn). Atty. Weicker stated the emergency situation to immediate action . . . choice to save life or to call. Commissioner Akashian asked about filing the report after the incident. Atty. Weicker stated [Kevin Hayhurst] did not do it; not aware of it [regulation]. Atty. Weicker stated he called to cover . . . no excuse, brand new information that just been passed. Commissioner Akashian asked the number of years [Kevin Hayhurst] of management. Mr. Hayhurst acknowledged three (3) years. Commissioner Akashian asked if he received notice of new regulation. Atty. Weicker stated no. Commissioner Akashian stated responsible owner, manager should be aware of regulations. Atty. Weicker stated that [we’re] not disputing particular regulation . . . it was last added, not aware . . . Twitter feed [indicates] police dispatched to other locations, no other reports. Commissioner Akashian stated [I] agree with you on that . . . first complaint against a licensee [for allegation of not filing report]. License Commission minutes for September 12, 2013 page 5 of 8 Commissioner Akashian requested for Officer Collins to address the Commission. Officer Chad Collins stated that he was dispatched to Finn’s Pub. Officer Collins stated he had interviewed Joshua Holmstrom, Jenna Costa, and Eric Breshnahan following the incident. Officer Collins stated he noticed abrasions to the face of [Joshua Holmstrom]. Ms. Costa had alcohol on her breath, over willing to tell . . . yes under the influence, did not meet with her since . . . equally Eric Breshnahan, he was walking across from John Street [Breshnahan] saw Holmstrom punched in face. Commissioner Akashian asked [Officer Collins] if he asked [Eric Breshnahan] who punched [Holmstrom]. Officer Collins stated yes, [Breshnahan] gave description [of person]. Commissioner Akashian asked Officer Collins if Mr. Breshnahan was under the influence; Officer Collins stated Mr. Breshnahan was not under the influence. Commissioner Descoteaux asked Officer Collins about Ms. Costa. Officer Collins stated that Ms. Costa was coherent; she said kicking occurred on the sidewalk. Commissioner Akashian asked Captain Webb if [Lowell police department] applying for criminal applications in District Court. Captain Webb stated an assault and battery complaint against Kevin Hayhurst. Commissioner Akashian asked about [assault and battery] upon Mr. Finn. Captain Webb stated this is the first information we received on those lines. Asst. City Solicitor Kerry Regan asked Mr. Finn if anyone speak to him; observed picture. Commissioner Akashian [police] just briefly spoke to Mr. Finn. Mr. Finn stated he was just relaxing [after the incident of assault. Mr. Finn stated in response to question from Asst. Solicitor Regan that he did not report the assault; no one else did. Captain Webb stated no reports filed. Commissioner Akashian asked when the photo was taken; Mr. Finn stated one (1) hour afterward. Commissioner Descoteaux asked Mr. Finn about not filing a report. Mr. Finn stated just like when we were a kid . . . nothing really happened; he talked to [Officer] Mr. O’Keefe, [told him] nothing happened [no charges] being pressed . . . Commissioner Krieger asked what he did after; Mr. Finn stated he went home [to get ready for ‘a date’ he had that night]. Mr. White stated that he went back to the kitchen, Eric Finn was there, and he was in shock with ice on his head . . . fair representation. Atty. Weicker stated that he has tried to get an earlier Court date [on a criminal complaint charge], but the date scheduled is January 2 [2014] . . . pushed to get copies of report, nothing . . . the first call, radio transmission, Lowell police responded extremely swiftly. Commissioner Krieger questioned Atty. Weicker, in response Atty. Weicker stated Fire department [official] was wandering by, went up to the location, saw [crowd] spilled out into Merrimack Street . . . was in the area. Commissioner Descoteaux stated greater concern unfortunate what happened to Mr. Finn . . . 100 people drinking, 3½ hours, far for me to say if anybody at 6:30 p.m., 85% - 90% legally intoxicated; what I see males rip off juke box, security, [patrons] shoulder to shoulder, estimated 150 people present, still serving alcohol . . . may have lead to what happened to Mr. Finn. Mr. Hayhurst stated a group that size doesn’t get intoxicated that fast. Atty. Weicker comments about a charitable fundraiser. Commissioner Descoteaux asked if there were any calls from other bar owners. Mr. Hayhurst stated he had no [prior] knowledge of people coming. Commissioner Akashian stated my concern, one, no report filed; Mr. Hayhurst should have. Finn’s Pub does a fantastic job, close up [1:30 a.m.] . . . diffuse situation. [Regulations] all issue to establishments . . . they haven’t been [cited] with physical altercation . . . no incident like this, from what I’ve heard do a good job. Commissioner Akashian asked Captain Webb if there have been police calls. Captain Webb stated there have been 19 calls, four (4) fights since January 1 [2013]. Commissioner Akashian License Commission minutes for September 12, 2013 page 6 of 8 stated Mr. Breshnahan is not here; [alleged] to have seen kicking [by] Mr. Hayhurst. Kicking someone down . . . affidavit[s] by Mr. Breshnahan and Ms. Costa state to have happened . . . some issues need to be addressed. Atty. Weicker called for Officer Collins. Atty. Weicker questioned Officer Collins; Officer Collins responds there was no indication of a fight, no blood on him. Commissioner Krieger questioned about the report on the assault. Atty. Weicker stated it is a concern. Commissioner Krieger stated we [Commission] pass judgment . . . the issue on conflict and written report. Commissioner Akashian cites the allegations on violations: regulation 1.20 permitting illegal activity, motion to take under advisement, second by Commissioner Descoteaux, vote – ayes unanimous; regulation 1.16 [paragraph 2] Manager’s Responsibilities, not filing a written report, motion to suspend the all alcoholic beverages Restaurant license for three (3) days, and to suspend two (2) days of said suspension to be held in abeyance, one (1) day to serve, second by Commissioner Descoteaux, vote – ayes unanimous; the one day suspension to be served is [Saturday] October 5, 2013. Commissioner Akashian reiterates the motions, to take under advisement regulation 1.16, paragraph 1, manager maintaining order and decorum, second by Commissioner Descoteaux, vote – ayes unanimous; to take under advisement regulation 1.20 Illegal Activities, permitting illegal activity, second by Commissioner Descoteaux, vote – ayes unanimous; three (3) days suspension for not filing report regulation 1.16 Manager Responsibilities, two (2) days in abeyance, one (1) day to serve, October 5, 2013, vote – ayes unanimous. Atty. Weicker stated other institutions were not charged; new regulation [1.16 Manager Responsibilities]; [management of Finn’s Pub] has given full cooperation; ask not to be selectively targeted. Commissioner Krieger stated to mark it down as a point. Commissioner Akashian stated it is the first time; if other . . . then should [apply] to all establishments. The Commission opened a discussion on the status of the business activity at 705 Dutton St. affecting Shirley Blanchard of 8 Wamesit Ct. Shirley Blanchard and Donald Sterling were present. The Commission reviewed and ordered filed a communication from Eric Slagle, Director, Development Services, dated September 10, 2013. Commissioner Akashian and Commissioner Krieger duly noted that there is no documentation in said communication of the dates the Building Commissioner cited the licensee, Kazanjian Used Parts, Inc., in violation of the condition per License Commission of not to store junk in the yard past 24 hours. Mr. Sterling stated there is drinking out there [across the street]; cars parked on sidewalk; drinking all night across the street from Kazanjian junk yard. Mr. Sterling stated [we] call police; cites property at 651 Dutton Street . . . a lot of buddy, buddy system. Commissioner Akashian stated the Commission would like to know the occurrences when it [condition] was not complied with; the License Commission is limited to the items we deal with. The Executive Secretary stated the distinction of Class I (Agent), Class II (Dealer), Class III (Junk) licenses for Second Hand Motor Vehicles. On a motion by Commissioner Descoteaux, second by Commissioner Akashian, to send request to Mr. Slagle, Director of Development Services, to list the dates when the licensee [Kazanjian] was found to have been in violation of the License Commission condition for premises at 705 Dutton Street, vote: ayes-unanimous. License Commission minutes for September 12, 2013 page 7 of 8 On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to adjourn the meeting at 8:30 p.m., respectfully submitted: Ryan Wynn, Executive Secretary [present at meeting]. License Commission minutes for September 12, 2013 page 8 of 8