License Commission

Minutes for the Lowell License Commission meeting, Thursday, October 10, 2013 at 6:35 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. Solicitor The Commission reviewed the minutes for meeting September 26, 2013; motion by Commissioner Krieger to approve, second by Commissioner Descoteaux, so voted. The Commission reviewed the special one-day license applications for malt beverages & wines only, or either one by the following individuals: Laura Polan [present] of the Merrimack Repertory Theatre for the Harvest Wine and Beer Tasting, Wednesday, October 23, 2013, 6:00 p.m. to 8:30 p.m. at the Merrimack Repertory Theatre Rehearsal Hall, 132 Warren St. Emily Marx [present] of One 27 Global Inc. for the Charity Ball 2013, Saturday, October 19, 2013, 7:30 p.m. to 11:30 p.m. at Mill No. 5, 4th floor, 250 Jackson St. Christine Cheuk-Trainor [present] of Aramark for the UML Softball Alumni Reunion Reception, Saturday, October 12, 2013, 6:00 p.m. to 8:00 p.m. at the UML Mahoney Gym, 870 Broadway Jeffrey D. Prescott [present] of the Merrimack Repertory Theatre for the theatrical performances by the Merrimack Repertory Theatre, October 24, 25, 26, 27, 31, November 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17 - 2013, concession sales/service for forty-five (45) minutes prior to performance, and during fifteen (15) minute intermission at the Liberty Hall, 50 East Merrimack St. Commissioner Akashian questioned Emily Marx about the source for the alcoholic beverages for the charity ball to be held at 250 Jackson St. Commissioner Akashian reminded applicants that special licensees must purchase alcoholic beverages from a licensed supplier; that they cannot purchase alcoholic beverages from a package store and cannot accept donations of alcoholic beverages from anyone. Commissioner Krieger asked about the address for Merrimack Repertory Theatre; Ms. Polan stated 132 Warren Street is the administration office, and there is a rehearsal hall. On a motion by Commissioner Akashian, second by Commissioner Descoteaux, it was voted to approve the malt beverages & wines only licenses for Laura Polan of the Merrimack Repertory Theatre, Emily Marx of One 27 Global Inc., Christine Cheuk-Trainor of Aramark, and Jeffrey Prescott of the Merrimack Repertory Theatre; ayes - unanimous. On a motion by Commissioner Akashian, second by Commissioner Krieger, it was voted to ratify the amendment to the Class II license granted September 26, 2013, that is the business address from 645 Rogers Street, Lot B to 639 Rogers Street for Commonwealth Auto Sales & Repair Corp, Davi L. Borba, President, for used car Dealer license # 742-B, Class II, premises described as follows: 639 Rogers Street, 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. The Commission received information from the Office of the City Engineer that 639 Rogers Street was subdivided [formerly known as 645 Rogers Street, Lot B], from 645 Rogers Street, Lot A. Ralph J. Tucci, Sr., President of Lowell Used Auto Parts, Inc., 108 Tanner St., appeared before the Commission to offer explanation for his communication dated October 3, 2013, in which he would like to exchange Class III license at 121 Tanner Street for a Class II license. After some discussion, on a motion by Commissioner Descoteaux, second by Commissioner Akashian, it was voted upon receipt of an application to amend the Class III license, the Commission will proceed with acting to obtain information relative to zoning code and environmental remedial issues; ayes – unanimous. The Commission reviewed and ordered placed on file a communication from Deputy Chief Mark McGuane of Lowell Fire Prevention Office, dated October 2, 2013 re management at Cavaleiro's Restaurant, 573 Lawrence St., and the fire alarm system. The Commission voted to have communication sent to manager of Cavaleiro’s Restaurant that he is to appear at the next scheduled meeting, October 24, 2013, to explain the action taken on the fire alarm system. License Commission minutes October 10, 2013 page 1 of 3 The Commission reviewed and ordered placed on file the communication from Demakis Law Offices, P.C. re: 99 Restaurant & Pub, 850 Chelmsford St., Lowell – notice that scheduled work activity is delayed to 2014 [an August announcement stated a five days closure October 6 - 10, 2013 for refurbishment of licensed premises]. Commissioner Akashian recused at 6:55 p.m. from sitting on the hearings of allegations as charged by Deborah Friedl, Interim Superintendent of Police, for package store licensees alleged to have failed compliance check conducted by Lowell Police Special Investigations when an underage person supervised by police purchased alcohol beverages without having been asked for positive identification prior to sale: D & Y Corp., dba Jerry’s Food Store #2, 207 University Ave., Bhupendra Patel, Manager, for incident of April 11, 2013 L & M Liquors, Inc., 424 Chelmsford St., Leonia M. Mendonca, Manager, for incident of April 11, 2013 Khompong Thom Market, Inc., dba Appleton Liquors, 171 Appleton St., Chheang Tell, Manager, for incident May 2, 2013 D & Y Corp., dba Jerry’s Food Store #2, 207 University Ave., Bhupendra Patel, Manager, for incident May 2, 2013 The Commission opened the hearing for D & Y Corp. Bhupendra Patel and Attorney Brendan McMahon, who is legal counsel for D & Y Corp., were present. Captain Webb read the Superintendent’s outline of the incident of April 11, 2013. Lt. Barry Golner and Detective Richard Desilets of the Lowell Police Department were present. Attorney McMahon did not contest the charge of an illegal sale of alcohol beverages to a person under twenty-one years of age. The police report reads, in part, that Bhupendra Patel was the clerk at the time of the sale, and that he did not request identification from the underage person prior to the sale of a six-pack of Budweiser. Commissioner Descoteaux and Commissioner Krieger asked a series of questions of Mr. Patel and Attorney McMahon about the ID scanner which Mr. Patel purchased three years ago for use by store clerks at Jerry’s Food Store #2. Attorney McMahon stated the scanner is operational without requiring specific programming. On a motion by Commissioner Krieger, second by Commissioner Descoteaux, the Commission finds the licensee furnished alcoholic beverages to a customer who was under the age of twenty-one years in conjunction with the Lowell Police Department compliance check program on April 11, 2013, which is a violation of Massachusetts General Law chapter 138, section 34 – sale, delivery or furnishing alcoholic beverages to persons under twenty-one years of age; and 204 CMR 2.05 (2): No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance, or illegality of any kind to take place in or on the licensed premises. The licensee shall be responsible therefore, whether present or not; ayes – Commissioner Krieger, Commissioner Descoteaux. Commissioner Krieger and Commissioner Descoteaux voted to suspend the malt beverages & wines only Package Store license for three (3) days, to hold one (1) day of the three days suspension in abeyance; furthermore, to impose upon said licensee the one (1) day suspension which was held in abeyance from the decision rendered February 14, 2013. The Commission ordered D & Y Corp. not to sell malt beverages and wines for the following three (3) days: Friday, October 25, Saturday, October 26, and Sunday, October 27, 2013; temporary signage in promotion of alcohol beverages at Jerry’s Food Store # 2 is to be removed from display during the suspension period. The manager of record, Bhupendra Patel, is to surrender the license issued to D & Y Corp. for malt beverages & wines Package Store, 207 University Ave., for calendar year 2013 on Friday, October 25, 2013 at 9:00 a.m. in the Law office at City Hall, 3rd floor, 375 Merrimack Street. Mr. Patel is to post notice in a conspicuous place near the entrance, visible from the outside, reading the following: D & Y CORP., dba JERRY’S FOOD STORE #2, 207 UNIVERSITY AVE., BY ORDER OF THE LOWELL LICENSE COMMISSION SHALL NOT SELL MALT BEVERAGES AND WINES OCTOBER 25, 26, 27 – 2013. The Commission also ordered Mr. Patel to appear on November 21, 2013 at a regular meeting of the License Commission in order to present evidence and/or attest that programming of the scanner is in place and operational, and that the licensee has received the services of professional training which Attorney McMahon proposed Mr. Patel is to receive. [Note: The incident of April 11, 2013 is the third violation for D & Y Corp. in which the licensee had not checked for identification; the first occurred in 2011 on April 29, 2011, and the second violation took place on September 14, 2012.] The Commission opened the hearing for D & Y Corp. Bhupendra Patel and Attorney Brendan McMahon, who is legal counsel for D & Y Corp., were present. Captain Webb read the Superintendent’s outline of the incident of May 2, 2013. Lt. Barry Golner and Detective Richard Desilets of the Lowell Police Department were present. Attorney McMahon did not contest the charge of an illegal sale of alcohol beverages to a person under twenty-one years of age. The police report reads, in part, that Ms. Shilpa Hemaraj was the clerk at the time of the sale, and that she did not request identification from the underage person prior to the sale of a twelve-pack of Heineken Light beer. Attorney McMahon License Commission minutes October 10, 2013 page 2 of 3 stated that manager and employees are to receive extensive re-training. A series of questions were asked by Commissioner Krieger and Commissioner Descoteaux about the training. Commissioner Krieger noted that employees follow the example of the manager. On a motion by Commissioner Krieger, second by Commissioner Descoteaux, the Commission finds the licensee furnished alcoholic beverages to a customer who was under the age of twenty-one years in conjunction with the Lowell Police Department compliance check program on May 2, 2013, which is a violation of Massachusetts General Law chapter 138, section 34 – sale, delivery or furnishing alcoholic beverages to persons under twenty-one years of age; and 204 CMR 2.05 (2): No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance, or illegality of any kind to take place in or on the licensed premises. The licensee shall be responsible therefore, whether present or not; ayes – Commissioner Krieger, Commissioner Descoteaux. Commissioner Krieger and Commissioner Descoteaux voted to suspend the malt beverages & wines only Package Store license for three (3) days, to hold one (1) day of the three days suspension in abeyance. The Commission ordered D & Y Corp. not to sell malt beverages and wines for the following two (2) days: Monday, October 28, and Tuesday, October 29, 2013; temporary signage in promotion of alcohol beverages at Jerry’s Food Store # 2 is to be removed from display during the suspension period. Mr. Patel is to post notice in a conspicuous place near the entrance, visible from the outside, reading the following: D & Y CORP., dba JERRY’S FOOD STORE #2, 207 UNIVERSITY AVE., BY ORDER OF THE LOWELL LICENSE COMMISSION SHALL NOT SELL MALT BEVERAGES AND WINES OCTOBER 28, 29 – 2013. [Note: The incident of May 2, 2013 is the fourth violation for D & Y Corp. in which the licensee had not checked for identification; the first occurred in 2011 on April 29, 2011, the second violation took place on September 14, 2012, and the third violation occurred April 11, 2013.] The Commission opened the hearing for L & M Liquors, Inc. Leonia Mendonca, Manager of L & M Liquors, was present; Mrs. Mendonca was accompanied by Jose Mendonca, her husband, and Attorney Kevin J. Murphy, who is legal counsel for L & M Liquors. Lt. Barry Golner and Detective Richard Desilets of the Lowell Police Department were present. Atty. Murphy stipulated to the facts of the sale to a person under the age of twenty-one years of age on May 2, 2013, and that the store clerk, Alberto Mendonca, did not ask the “underage operative” for identification. Leonia Mendonca and Jose Mendonca stated to the License Commission that the store clerk was wrong to act in the manner he did at the time of incident, and that [management] apologized for the incident. Management and employees have received T.I.P.S. certification. On a motion by Commissioner Descoteaux, second by Commissioner Krieger, the Commission finds the licensee furnished alcoholic beverages to a customer who was under the age of twenty-one years in conjunction with the Lowell Police Department compliance check program on May 2, 2013, which is a violation of Massachusetts General Law chapter 138, section 34 – sale, delivery or furnishing alcoholic beverages to persons under twenty-one years of age; and 204 CMR 2.05 (2): No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance, or illegality of any kind to take place in or on the licensed premises. The licensee shall be responsible therefore, whether present or not; ayes – Commissioner Descoteaux, Commissioner Krieger. Commissioner Descoteaux and Commissioner Krieger voted to suspend the all alcohol beverages Package Store license for one (1) day which was held in abeyance from the decision rendered February 14, 2013. The Commission ordered L & M Liquors not to sell alcoholic beverages on Thursday, October 24, 2013. The manager of record, Leonia Mendonca, is to surrender the license issued to L & M Liquors for all alcoholic beverages Package Store, 424 Chelmsford St., for calendar year 2013 on Thursday, October 24, 2013 at 9:00 a.m. in the Law office at City Hall, 3rd floor, 375 Merrimack Street. Mrs. Mendonca is to post notice in a conspicuous place near the entrance, visible from the outside, reading the following: L & M LIQUORS, INC., 424 CHELMSFORD ST., BY ORDER OF THE LOWELL LICENSE COMMISSION SHALL NOT SELL ALCOHOL BEVERAGES OCTOBER 24, 2013. [Note: The incident of May 2, 2013 is the third violation for L & M Liquors in which the licensee had not checked for identification; the first occurred in 2012 on May 4, 2012, and the second violation took place on September 6, 2012.] The hearing for Khompong Thom Market, Inc., dba Appleton Liquors, 171 Appleton St., Chheang Tell, Manager, on the misconduct alleged to have occurred May 2, 2013 was continued to October 24, 2013. Mr. Chheang Tell did not respond to notice of hearing sent to the licensee dated September 27, 2013. On a motion by Commissioner Krieger, second by Commissioner Descoteaux, it was voted to adjourn the meeting at 7:45 p.m., respectfully submitted: Ryan Wynn, Executive Secretary [present at meeting]. License Commission minutes October 10, 2013 page 3 of 3