License Commission

Minutes for Lowell License Commission meeting, Thursday, May 7, 2015 at 6:35 p.m., Mayor’s Reception Room, 2nd floor, City Hall, 375 Merrimack St., Lowell, MA 01852 Present: John Descoteaux, Commissioner, Chairman, Commissioners Cliff Krieger, Nancy McGovern, Terry McCarthy, and Kristen Hogan [present 6:55 p.m.]; and Captain Thomas Kennedy of the Lowell Police Department, Kenneth Rossetti, Asst. City Solicitor, and Elliott Veloso, Asst. City Solicitor. Present, also: Ann Marie Page, Vice President of the Lowell City Wide Neighborhood Council, and Susan Purdy of the Lowell Downtown Neighborhood Association. The Commission reviewed the minutes for meeting April 30, 2015. The Commission approved the meeting minutes for April 30, 2015 on the motion by Commissioner Krieger, second Commissioner McCarthy The Commission reviewed the application for special one-day license to sell/dispense malt beverages & wines only, or either one, by Evelyn Rodriguez of St. Patrick Parish, St. Patrick Parish Hall, 282 Suffolk St., for Mother’s Day Dance, Friday, May 8, 2015 from 7:00 p.m. to 12:00 mid. Evelyn Rodriguez was present. Chairman Descoteaux asked Ms. Rodriguez about the scheduled event; Ms. Rodriguez stated that each person would be allowed to purchase three (3) tickets, allowing for no more than three alcohol beverage drinks; alcohol beverages will be purchased from Kappy’s [ABCC wholesaler]. The Commission approved license for Evelyn Rodriguez of St. Patrick Parish on the motion by Commissioner McCarthy, second Commissioner Krieger. The Commission reviewed the application by Merrimack Repertory Theatre, Elizabeth Kegley, Manager, for Charity Wine Pouring License for June 18, 2015 at Aramark Educational Services, LLC, 50 Warren Street, Grand Ballroom. Elizabeth Kegley was present. Ms. Kegley stated that the Wine Pouring request has been for an annual fundraising event [held at Inn and Conference Center, 50 Warren License Commission minutes for May 7, 2015 page 1 of 11 St.]. The Commission approved application on the motion by Commissioner McGovern, second by Commissioner Krieger. The Commission reviewed the application for Sidewalk Stand for seasonal permit in 2015 from the Downtown Lowell Merchant Association, Andrew Jacobson, an Association member; member businesses: Little Delights Bakery, Many Pho – 132 Merrimack St. Humanity, Ani Vong – 128 Merrimack St. Persona, Jeremy McKenna – 57 Market St. The Lowell Gallery, Jeff Engel – 219 Central St. Gentlemen’s District, Maria Garcia – 23 Central St. Brew’d Awakening Coffeehaus, Andrew Jacobson – 61 Market St. Andrew Jacobson was present to speak in behalf of the Association. Mr. Jacobson answered questions from Chairman Descoteaux; stated that the Association is just starting; the members will participate in a marketing plan for downtown, getting retailers on the [sidewalk] in front of the business. Mr. Jacobson mentioned the upcoming promotion for “Lowell Week.” Chairman Descoteaux asked about other businesses. Mr. Jacobson stated the Association is looking to add new members. Executive Secretary confirmed that each member has the required liability insurance of [$500,000] with the City of Lowell as certificate holder, and co-insured. The matter of the seasonal license fee the Sidewalk Stand license of $25.00 may be applicable to the Association, provided each new member files a certificate of liability insurance with the City. The Commission approved the application for Sidewalk Stand license for the Downtown Lowell Merchant Association, with the provision that new members to the Association be automatically added, on the motion by Commissioner Krieger, second by Commissioner McCarthy. The Commission reviewed for ratification per request of the Executive Secretary the issuance of special one-day license for all alcohol beverages [license # 80SP2015] issued May 1, 2015 to Jose M. Santos of the Holy Ghost Society, Holy Ghost Park, 65 Village Street for Saturday, June 13, 2015 from 5:00 p.m. to 1:30 a.m.; the event is a Birthday Party. The Secretary explained that he inadvertently did not include the application for June 13th event when the Commission had reviewed other applications filed by Jose License Commission minutes for May 7, 2015 page 2 of 11 M. Santos at the meeting of April 30, 2014. Mrs. Maria Camara appeared before the Commission on April 30th as a representative and as a director for the Holy Ghost Society. The Commission voted to ratify said license issuance on the motion by Commissioner McCarthy, second by Commissioner McGovern. The Commission reviewed for ratification per request of the Executive Secretary the issuance of a special events permit for amplification of sound for outdoor public entertainment, April 29, 2015 to Jonathan Crockett, Middlesex Community College, sound system for live music, disc jockey, public address, Spring Fling, Friday, May 8, 2015, 10:00 a.m. to 2:00 p.m., Lowell campus quad, 33 Kearney Sq. The Secretary stated that he received a telephone call from Mary Jo Griffin, Middlesex Community College official last week about the amplification permit for the annual event on the college campus. Chairman Descoteaux asked Captain Kennedy about any problem that may have arisen at prior events. Captain Kennedy stated that there had been none. The Commission voted to ratify said issuance of amplification permit on the motion by Commissioner Krieger, second by Commissioner McCarthy. The Commission reviewed a request for a continuance of hearing from Michael W. Ford of Ford Law P.C. dated May 6, 2015 as legal counsel for Camila, LLC. Attorney Ford is requesting a continuance to the meeting of May 21, 2015 due to a conflict for Thursday, May 7th. The Executive Secretary informed the Commission that he had telephone conversation with Atty. Ford about his legal representation of Camila on the allegations of misconduct as charged by William M. Taylor, Superintendent of Police. The Commission on the motion by Chairman Descoteaux, second by Commissioner McCarthy, voted to continue the hearing to May 21, 2015 regarding the allegations of misconduct from the Superintendent of Police filed with the Lowell License Commission on April 14, 2015, against Camila LLC, d/b/a Reservations, Jorge A. Torres, Manager, all alcoholic beverages Restaurant licensee at 179 Central St., for violation of Lowell License Commission regulations 1.06 Compliance With All Laws And License Commission minutes for May 7, 2015 page 3 of 11 Regulations, 1.16 Manager’s Responsibilities, 4.02 Hours Of Operation, Alcoholic Beverages Control Commission regulation 204 CMR 2.05 (2), and M.G.L. Chapter 138, Section 41. The License Commission shall consider the public need in accordance with section 12 of chapter 138, MGL, to decrease hours from 2:00 a.m. to 11:00 p.m. for the sales of alcoholic beverages by Camila, LLC, d/b/a Reservations, for premises at 179 Central Street, during the calendar week (Sunday to Saturday). Commissioner McGovern, approximately 6:50 p.m., recused herself from the next agenda item, Vannak Kann, because of a possible conflict of interest. The Commission opened the hearing on the allegations for misconduct as charged by William M. Taylor, Superintendent of Police, Vannak Kann, d/b/a The Crown, Vannak Kann, Manager, all alcohol beverages Restaurant licensee at 74 Middlesex Street, allegations of misconduct regarding non- compliance with sections 1.06 and 1.16 of License Commission Alcoholic Beverages Regulations, and ABCC CMR 4.03, Prohibition of Certain Practices. Vannak Kann was present, and Attorney Raymond T. Weicker, legal counsel for Vannak Kann. The reading of the complaint was waived by Atty. Weicker. Atty. Weicker stated an employee allowed a promoter to promote the Valentine’s Day free drink; Vannak Kann took responsibility for each promotion; the beer pong is no longer run. Atty. Weicker stated that the licensee has had an outstanding record, and that it is a first offense, requesting the complaint be placed on file. Chairman Descoteaux asked Captain Kennedy if there are any police concerns about the licensee. Captain Kennedy spoke briefly about police patrols in the immediate area and of the parking garage across the street. Chairman Descoteaux stated that if you have a promoter, the promoter is to be licensed [by the License Commission]. Commissioner McCarthy asked about hours of operation for The Crown. Mr. Kann stated due to his other employment; [The Crown] is only open Fridays and Saturdays, and on Thursdays for a special event, or function. At the conclusion of the hearing, the Commission voted to suspend the all alcoholic beverages Restaurant license for three (3) License Commission minutes for May 7, 2015 page 4 of 11 days, and to place said three (3) days suspension in abeyance for one (1) year [May 7, 2016] on the motion by Chairman Descoteaux, second Commissioner McCarthy; vote – ayes Chairman Descoteaux, Commissioner McCarthy, Commissioner Krieger. Absent: Commissioner Hogan. Commissioner McGovern returned to the Mayor’s Reception Room at 6:55 p.m. Commissioner Hogan appeared in the Mayor’s Reception Room at 6:55 p.m. The Commission opened the hearing on the allegations of misconduct as charged by William M. Taylor, Superintendent of Police, against Hayhurst Group Inc., d/b/a Finn’s Pub, Kevin Hayhurst, Manager, all alcoholic beverages Restaurant licensee at 76-86 Merrimack Street, allegations of misconduct regarding non-compliance with sections 1.15, 1.16, 1.20 of License Commission Alcoholic Beverages Regulations, and A.B.C.C. CMR 2.05 (2) to wit, permitting disorder, disturbance or illegality. Kevin Hayhurst and Eric Finn were present, and Attorney Raymond T. Weicker was present as legal counsel for Hayhurst Group, Inc. Chairman Descoteaux requested Captain Kennedy read the complaint about the allegations of misconduct. Captain Kennedy read the communication from Superintendent of Police dated March 31, 2015. Detective Corey Erickson of the Lowell Police Department was present. Attorney Weicker questioned Detective Erickson about the police investigation that followed the incident of March 18, 2015 in front of Finn’s Pub. Attorney Weicker asked a question of Captain Kennedy about the police investigation. Atty. Weicker stated that Kevin Hayhurst had called the Lowell police station at 12:10 a.m. [March 18, 2015]. Kevin Hayhurst stated that he closed [Finn’s Pub] at 1:00 a.m. Atty. Weicker stated that no employees of Finn’s Pub have been charged for assault. Eric Finn addressed the Commission, stating he was working as a bartender that night; he heard an argument that took place behind him; he said he didn’t look to see who the people were arguing. Mr. Finn stated he did not see any employee strike anyone, and did not witness a bottle thrown [outside the establishment]. Mr. Finn stated that he has been bartending for eight (8) months [at Finn’s Pub]. He said the establishment closes License Commission minutes for May 7, 2015 page 5 of 11 a half (½) hour earlier than other establishments. Kevin Hayhurst stated that there was no illegality on the premises. Commissioner McCarthy questioned Kevin Hayhurst. Mr. Hayhurst stated that he made the telephone call to the police station when there was an incident outside the establishment. Atty. Weicker stated that [Hayhurst] called police, and shut down at 1:00 a.m., and put on the lights himself. Chairman Descoteaux stated in reference to the regulation that within 48 hours a written notice is to be filed with the [Commission] and police. Commissioner Hogan questioned why not the report to be safe. Commissioner Krieger stated that the surrounding area is included upon review of the regulations. Commissioner McCarthy asked when bottle was thrown. Captain Kennedy stated thrown after people taken into custody. Commissioner McCarthy asked Kevin Hayhurst if he was aware of thrown bottle. Kevin Hayhurst stated he was not aware. Chairman Descoteaux stated [Hayhurst] to file the report. In response, Mr. Hayhurst stated he called police, shut down the bar, people were yelling at me. Atty. Weicker stated [incident] happened outside, no criminal acts in the bar, but on the street, arrests made. Asst. Solicitor Rossetti states in reference to the matter of no illegalities on the premises, cites ABCC CMR and local rules, no licensee to permit disorder, indecency, or disturbance, not necessarily illegality. Atty. Weicker in response referenced a legal case about arguing when not rise to disturbance, disorder; we don’t have that in this instance. Chairman Descoteaux states in the matter of the disturbance not witnessed by six (6) bouncers. Atty. Weicker stated we don’t have the bottle or person who threw it. Chairman Descoteaux stated that it is a serious issue not receiving correspondence within 48 hours. Commissioner Krieger stated [Commission] takes a broad view of licensed premises. Atty. Weicker states what would my client had written in the report. Chairman Descoteaux cites the transfer application [Mill City Suds, Inc.]. What has been the delay [for] five (5) months? Atty. Weicker states the matter of the Department of Unemployment Assistance (DUA). Chairman Descoteaux asked about the certificate of good standing. Atty. Weicker stated that payment to Department of Revenue (DOR) was made under License Commission minutes for May 7, 2015 page 6 of 11 an incorrect identification number; per accountant, reporting taxes and withholdings filed under wrong number; it has been corrected with DUA but working with DOR, the buyer (Mill City Suds) is holding out, awaiting Commission action. Commissioner McCarthy questioned Kevin Hayhurst about the disturbance outside. Mr. Hayhurst stated they took off. Chairman Descoteaux stated the Commission wants to be constant, now outside the premises [for filing incident report]. Asst. Solicitor Rossetti stated reason for filing [incident report] is two-fold, strict report, contemporaneous account for a hearing like this, what happened, an altercation; second a stricter report, the integrity of the licensee, why was reporting done. Mr. Hayhurst stated he was under the impression to call. Atty. Weicker stated [call] is recorded with police department on Merrimack St. outside premises, police officer writing what he saw; at the time rose to level of disorder outside. Atty. Weicker stated client did right thing, [Hayhurst] called for assistance when he wanted people out, now it happens off the premises. Atty. Weicker stated he recommends no vigilante action; close early on a very profitable night. Chairman Descoteaux stated the Commission’s contention is that the 48 hour notice was not filed. Chairman Descoteaux questioned the Executive Secretary about the correspondence sent to [Hayhurst Group, Inc.] for change of manager. The Secretary stated the communication was sent [dated April 15, 2015]. Atty. Weicker explained the resignation of manager [2014] and cited a Court ruling. At the conclusion of the hearing, Chairman Descoteaux makes the motion regarding allegation of a violation of regulation 1.15 of the License Commission regulations Manager, to place on file; regarding allegation of a violation of regulation 1.16 Manager’s Responsibilities, three days (3) days suspension of the all alcoholic beverages Restaurant license, and to place two (2) days of said suspension in abeyance for one (1) year [May 7, 2016]; one (1) day suspension to serve Thursday, May 28, 2015; motion second by Commissioner Krieger; votes ayes Chairman Descoteaux, Commissioner Krieger, Commissioner Hogan, Commissioner McGovern, Commissioner McCarthy. License Commission minutes for May 7, 2015 page 7 of 11 At 8:05 p.m. Chairman Descoteaux opened the public hearing for the License Commission’s consideration of the public need in accordance with section 12 of chapter 138, MGL, to decrease hours from 2:00 a.m. to 11:00 p.m. for the sales of alcoholic beverages by Hayhurst Group Inc., d/b/a Finn’s Pub, for premises at 76-86 Merrimack Street, during the calendar week (Sunday to Saturday). Chairman Descoteaux stated the criteria the Commission may use to determine if there is a public need to decrease hours, frequency of police presence between the hours of 11 p.m. to 2 a.m. in relation to other establishments; public funds spent [to address the establishment’s reported activities]. Chairman Descoteaux stated this is not a disciplinary matter. Atty. Weicker addressed the Commission as legal counsel for the licensee, Hayhurst Group, Inc. He stated that there is no record to rely upon, [licensee] is not guilty of the allegation that involved the hockey player; called police when he is supposed to, voluntarily called police; Hayhurst did right thing calling police, turned on lights. During the discussion Attorney Weicker commented that the License Commission worked for the Law Office, which Commissioner Krieger stated was incorrect and Attorney Weicker then said that was the way it was on the City Web site, to which Commissioner Krieger stated that the Web Site had problems. Chairman Descoteaux opened the public hearing for anyone wishing to speak in reduction of the hour. There was no one present to speak in favor of a reduction. Chairman Descoteaux closed that portion of the hearing. The Chairman opened the hearing to anyone present who wished to speak in opposition to the reduction of the hour. Atty. Raymond Weicker identified himself as being in opposition; he is a Lowell resident at 14 Watson St. He lives in the neighborhood where there is a wonderful Brazilian restaurant called Cavaleiro's; part of what comes living in the City, back Central Street, is noise, amplified music; I [Weicker] wouldn’t ask that [restaurant] be closed. Atty. Weicker stated downtown will attract “meatheads.” We want to close out; Hayhurst has a new business. Chairman Descoteaux asked Captain Kennedy if he had a report of activity in the area. Captain Kennedy stated an analysis from 2012 to 2015 though cannot cull the information there were 205 police interactions at 74-86 Merrimack St., which includes past assaults; License Commission minutes for May 7, 2015 page 8 of 11 there are two (2) premises, one upstairs, one downstairs, in close proximity. Captain Kennedy stated that all available police [cars] were called to 74-86 Merrimack St. on St. Patrick’s Day, citing police drawn from other sectors of the City. Commissioner McCarthy asked Captain Kennedy if it had been more than once. Captain Kennedy stated only instance was St. Patrick’s Day. Susan Purdy stated . . . [licensee] worked hard to clean-up, three (3) months, citing date of November 23, 2015, a change of behavior. Asst. Solicitor Veloso spoke of the past problems the City has had to address because of the complaints about Finn’s Pub. Atty. Weicker stated any reduction in hours would devalue license; there has been no revocation of license. The license transfer, sale, is on-going for five (5) months. Asst. Solicitor Veloso stated there have been three (3) separate hearings . . . indicative of irresponsible ownership; 205 police reports have to respond in other crimes, late at night, serious concern as to whether public order is being kept. Captain Kennedy stated since January 2015 there are eight (8) instances of police responding to 74-86 Middlesex St.; it is difficult to cull report. Commissioner Krieger stated I would like to go through the other numbers, move to defer for two (2) weeks. Chairman Descoteaux asked for a second to Commissioner Krieger’s motion; there was no second. Chairman Descoteaux asked a question of Asst. Solicitor Veloso on the decrease in hour. The Commission, not hearing from another person present to speak in opposition to the decrease in hour, Chairman Descoteaux closed that portion of the hearing. Chairman Descoteaux asked a procedural question of Asst. Solicitor Rossetti on re-opening the hearing to people who wished to speak in favor of a decrease. Asst. Solicitor Rossetti could have a motion to suspend the rules. The Commission voted to suspend the rules to allow people present who wished to speak in favor of a decrease of the hour on the motion by Commissioner Krieger, second by Commissioner McCarthy. Susan Purdy stated that she would like to speak in favor of the decrease, would like to support Lowell police; support a roll-back of hours. The Commission, on the motion by Commissioner McCarthy, second by Commissioner Krieger, voted to suspend the rules for additional License Commission minutes for May 7, 2015 page 9 of 11 person to speak in favor of the decrease in hour. Ann Marie Page stated she is in favor of the decrease because when [you] pull police cars, they are coming out of the neighborhood[s]. Chairman Descoteaux asked to hear from the Commissioners. Commissioner Krieger stated to defer [two weeks]. Commissioner Hogan stated she would like assurance . . . stated 1:00 a.m. Commissioner McGovern requested to be last to speak. Commissioner McCarthy stated to decrease to 11:00 p.m. Commissioner McGovern stated 11 p.m. Commissioner Krieger stated 1:00 a.m. Atty. Weicker cites calls to police, number of people with assistance, cites other establishments; client would like to be out of business, do not need to roll hours back; another violation there is the two days suspension, use it; a six (6) months’ time track [of calls] . . . medical calls are included; hours roll back will affect [sale] price. Captain Kennedy stated that the eight (8) calls of disorder, removed ambulance calls. Atty. Weicker stated arrests because of own behavior of people. Asst. Solicitor Veloso stated incidents are indicative [of] serious problems; the bar not be denied sale, [Commission] is empowered to restore hours. Atty. Weicker stated assumption is incorrect by restoration of hours effecting sale; asked the Commission not to roll back hours, but require detail [police] Friday and Saturday nights. Chairman Descoteaux made the motion to decrease hour to 12:00 a.m. closing, two hours. There was no second to Chairman Descoteaux motion. Commissioner Krieger stated he would second the motion for 12 a.m. closing and the licensee to have police detail per Atty. Weicker; Chairman Descoteaux asked for a roll call of the Commission by the Secretary, on the motion for 12 a.m. closing and police detail, second Commissioner Krieger; vote ayes Chairman Descoteaux; no [nays] Commissioners Krieger, Hogan, McCarthy, McGovern. Secretary stated vote is 1 yes, 4 nays to 12 a.m. closing and police detail. Commissioner McCarthy made the motion to decrease hour of closing to 11 p.m., second by Chairman Descoteaux; vote ayes Chairman Descoteaux, Commissioners McCarthy, McGovern; no [nays] Commissioners Krieger, Hogan. Secretary stated vote is 3 yes, 2 nays for 11 p.m. closing. Asst. Solicitor Veloso License Commission minutes for May 7, 2015 page 10 of 11 addressed the matter of the Commission’s notice of decision; send by certified mail, return receipt. Chairman Descoteaux asked the Secretary to send letter, allowing five (5) days starting Monday; decision to decrease hour to 11 p.m. effective May 16, 2015. The Executive Secretary stated to the Commission that he had spoken with David Cruz of D & G All Star Lounge after the License Commission meeting of April 30th; Mr. Cruz had made travel plans with family to go to Puerto Rico the night of May 7th. The Commission voted on the motion by Chairman Descoteaux, second by Commissioner Krieger to continue hearing to May 21, 2015 on the allegations of misconduct as charged by William M. Taylor, Superintendent of Police, against DCGR, Inc., d/b/a D & G All Star Lounge, David Cruz, Manager, all alcoholic beverages Restaurant licensee for premises at 177 Merrimack St. for violation of License Commission Alcoholic Beverages Regulation Section 1.16 Manager’s Responsibilities. The Commission reviewed the application for transfer of the all alcoholic beverages Restaurant license from 280 Central Inc., d/b/a Ward Eight, Paul Yates, President, to Thirsty First Tavern & Grill Corp., d/b/a Thirsty First Tavern & Grill, Christine Widtefeldt, President, for premises at 276-280 Central Street, two unnumbered doors and bulkhead. First floor-two rooms for lounge, two rooms for storage; cellar for storage; sidewalk cafe in front, fence enclosed. Chairman Descoteaux made the motion, second by Commissioner Hogan, to schedule the public hearing for May 21, 2015, legal notice for publication May 8, 2015, regarding application by Thirsty First Tavern & Grill Corp., so voted. The Commission voted to adjourn the meeting at 9:05 p.m. on a motion by Commissioner Krieger, second by Commissioner Hogan. Respectfully submitted by Ryan Wynn, Executive Secretary, present at meeting. License Commission minutes for May 7, 2015 page 11 of 11