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HomeMy WebLinkAbout2014-10-20 Board of Selectmen PacketTown of Reading Meeting Posting with Agenda Board - Committee - Commission - Council: Board of Selectmen Date: 2014-10-20 Building: School - Memorial High Address: 62 Oakland Road Purpose: General Business Time: 7:00 PM i�ECEIVED "'OWN CLERK -A DING, MASS. 1014 JON 18 P Z 21 , Location: Superintendent Conference Room Meeting Called By: Paula Schena on behalf of Chairman John Arena Notices and agendas are to be posted 48 hours in advance of the meetings excluding Saturdays, Sundays and Legal Holidays. Please keep in mind the Town Clerk's hours of operation and make necessary arrangements to be sure your posting Is made in an adequate amount of time. A listing of topics that the chair reasonably anticipates will be discussed at the meeting must be on the agenda. All Meeting Postings must be submitted in typed format; handwritten notices will not be accepted. Topics of Discussion: 1) Discussion/Action Items a. Attendance at School Committee Meeting This Agenda has been prepared In advance and represents a listing of topics that the chair reasonably anticipates will be discussed at the meeting. However the agenda does not necessarily include all matters which may be taken up at this meeting. 10/17/2014 15:01 6177273065 INVESTIGATORSG PAGE 02/07 e..C717 ,a Ali• �' (s .Q i DECISION .TAY & RICKI', ;INC. DRA RICKY'S LIQUOR 212 MAIN ST REAIlTNGi MA. 01867 LICENSE#: 101600017 HEARD: 10/0812014 This is an appeal from the action of the Town of Reading Board of Selectmen (the "Local Board" or "Reading ") in suspending for ninety (90) days the M.G.L. c. 1.38 §15 all alcohol package store license of Jay & Rielcy, Inc, dba Ricky's TAquor (the "Licensee" or "Ricky's ") located at 212 Main Street, Reading, MA, The applicant timely appealed the Local Board's do ci,sion to the Alcoholic Beverages Control Commission (the "Commission') and a hearing was held on Wednesday, October 8, 2014. The following documents are it evidence: 1, TIPS Certification dated 7/28/2014; 2. Copy of Licensee's All - .Alcohol Package Store License; 3, Reading Police Department Investigative Report # D092597 dated 7/08 /Chi f Se lla; 4. Letter dated 7/09/2014 from Reading Police Department Deputy ga 5. Local Board's Notice of Hearing dated 7/15/2014; b, Minutes of Local Board's Meeting 7/29/2014; 7, Local Board's Decisions dated 8/05/2014; S. Reading Police Depmtnient Officer's Formal Report dated 8103 /2014; 9. Local Board's Notice of Nearing dated 8/07/2014; 10. Minutes of Local Board's Meeting 9/02/2014; 11. Local Board's Decision dated 9/0312014; 12, Email dated 6 /27/2014 from Sergeant David Clark; and 13. Local Board's Liquor License Rules, Regulations, and Procedures. A. Reading Daily Times Newspaper dated 8/19/2014 ,Article on Compliance Checks in Reading. There is one (1) audio recording of this hearing, and one (1) witness testitted. FACTS 1. Jay and Ricky, Inc. d/b /a Ricky's Liquors, is the holder of an at), alcoholic bevcrages retail package store off premiscs liquor license under M.G.L. c. 138, § 15, exercised at 212 Main Street, Readi.n.g, MA. (Commission Records) Thaft. 617.727,3040 + Txq 627.727,1258 • 01pa, 239 Causeway Street, Oostw; W 02114 W9& zvruw.masS.gov/d.6CC P­ m 'R.—. r­ 10/17/2014 15:01 6177273065 INVESTIGATORSG PAGE 03/07 2, Kalpesh Patel is the owner of the Licensee which. was granted in tune, 2013. (Commission Records, Testimony) 3. Bruce Armstrong was a11 employee of the Licensee in July and August, 2014. (Testimony) 4. On July 29, 2014, the Local Board, based upon the testimony submitted by the Reading Police Department and after the statements of the licM';ee's attorney, voted to find. sufficient proof that Licensee, Jay and Ricky, Inc. violated M.G.L. c. 138, §34, Sale or delivery of an alcoholic beverage to a person under twenty -one (21) years of age, and voted to suspend its § 15 license for four (4) days, to be served on September 15 -18, 2014, inclusive. The Board's vote was five (5) in favor, zero (0) opposed.. (Exhibits 5, 6, 7) 5. The Licensee did not appeal the July 29, 2014, decision of the Local Board'. ('Testimony) 6. On August 3, 2014, Reading Police Officer Lclura Bullis observed a. man of youthful appearance exit Ricky's liquors with an unbal ged bottle of 34enneister digestif liqueur in plain view. The n-kan entered a motor vehicle containing three others of youthful appearance. Officer Bullis determined upon inquiry that all occupants were 17 or 18 years old. They stated that they had purchased liquor at Ricky's Liquors on multiple occasions. (Exhibit 8) 7. The police found the 375ml JRgermei.ster bottle in the front seat of the vehicle and the following in the trunk: 1 -375ml bottle of Ciroc (peach) vodka; 1 -16 pack of Budweiser beer; 1.26 pack of Bud Light beer, 2 -8 packs of Bud Light beer', and 1 -18 pack of Bud Light beer. (Exhibit 8) 8. 'Me purchaser stated that the alcohol had been purchased in two trips and he was not asked for his driver's license, or proof of age at either time. The purchaser of the alcohol, identified the store clerk, Bruce Armstrong, as the clerk who bad sold him the alcohol. (Exhibit 8) 9. The officers then asked the store clerk, Bruce Armstrong, hour he confirmed that the purchasers were at least 21 year's of age. He stated that he looked at their drivers' licenses. When questioned about whether the video surveillance would confirm his statement, Mr. Armstrong admitted that he in fact did not ask for identification. (Exhibit 8, Testimony) J.O. Mr, K,alpcsh Patel then. arrived on scene. Mr. Patel is the owner of the licensee. Mr. Patel was very cooperative, and played the video surveillance rootage for police at the scene. The footage showed that the young purchasers had made two purchases at were not asked for identificatiob. at either time. (Exhibit 8, Testimony) 1.1. Mr. Patel fired. Mr. Armstrong. (Exhibit 8, Testimony) 12, The Local Board held a public hearing on September 2, 2014, and based upon the testimony by Reading Police officers and after the statements of Mr, Patel and his attorney, voted to find sufficipent proof that Licensee Jay and Dicky, Inc. sold or delivered alcoholic beverages to persons under 21 years of age, in violation of M.G.L. c, 138, §34. ( Exbibit 10) 13, The Local Board voted, ui3animously that there was substantial evidence of sales or delivery of alcoholic beverages to minors as being a regular business practice of the Licensee. The Local Board voted to suspend the Licensee's §15 license for ninciy (90) days effective September 3," 2014, with the previously imposed suspension to be served at the end of that sentence. (.Exhibit 10) ' Tho Licensee reeeived a four (4) da•y suspension for this violation, which is to be served aftor the suspension which is tho subject matter of this appeal. roll 10/17/2014 15:01 6177273065 INVESTIGATORSG PAGE 04/07 14. At the hearing before the Commission, the licensee was serving the suspension which is the subject matter of this appeal? (Testimony) 15. in August of 2014, the licensee passed (did not soil alcohol to a minor) a c�arnpliance chccklsting procedure performed by the Reading Police Department Detective Unit involving underage operatives. (Exhibit A.) 16. The Rules and Regulations of the Local Board of Reading state in Section 3.2.7 the Enforcement Section: "Licensees violating applicable laws of the Commonwealth of Massachusetts, rules or regulations of the Alcoholic Beverage Control Commission, and/or the "town of Reading Liquor Policies shall be subject to the :Following range of penalties: a 1`t Offetase: warning to three day suspension; o 2111 Offense; Three days to six clays suspension; 0 3,o Offense.. Six days to 12 days suspension; 0 0 Offense: Show cause hearing for license revocation. The term "offense" is defined as one violation of Massachusetts Genend Laws, Chapter 138 and/or one violation of the Massachusetts Alcoholic Beverage Control Commissiou Rule and Regulations 204CMR, and/or Town of Reading local licensing regulatiolns and any other law ar regulation of the 'Down of Reading. Examples of on to invoke penalties are based on the followinng: severity and type of offense; Number. of prior off 90, The penalties are only a guide. The licensing Authority may use its discretion in determining whether the facts surrounding a violation warrant a penalty which is more lenient or severe than the suggested guidelines. The penalties shall not be construed as to 1imjt the Licensing Authority's ability to consider alternative di,6positions or further conditions ort. a license, or even alternative penalties (e.g. Tolling back of the licensee's operating hotu•s, suspension of the Licensee's Common Victualers license, and /or suspending the licensee's entertainment license." (Exhibit 13, Section 3.2.7.1) 17, The Licensee does not dispute that the violations occurred, The Licensee argued for a mitigation of the length of time for the penalty of a ninety (90) day suspension, The Licensee argued that a closure for ninety (90) days was too harsh, was a severe financial hardship, and was effWtively a revocation of its license. The Iicensee requested that the Corttmission reduce the length of the time of the actual suspension to be served/closed, and issue a period of time to be held in abeyance for a period of two (2) years. ('testimony, Joint Pre - Hearing Memorandum) 18. The Local Board's argued that the severity of the penalty was a result of the three (3) violations for serving minors, all nan- compliance checks. `these violations occurred extremely close in time, selling to minors is a normal practice for the licensee, and the licensee has only held the license since June, 2013. (joint Pre - Hearing Memorandum) As of the Commission hearing date, the licensee was 5crvirig the suspension and had been closed for a. period of thirty -six (36) days. The licensee twice sought injunctive relivva stay from the superior Court for the imposition of the 90 day suspersion/oiosure, and the Superior Court twine denied the stay of the impasitirnt Of the suspension. 10/17/2014 15:01 6177273065 IMlESTIGATORSG PAGE 05/07 DTSC� U�?`l Licenses to sell alcoholic beverages are a special privilege subject to public regulation and control for which States have especially wide latitude pursuant to the Twenty -First Amendment to the Uzaitedmontof Constitution. onnoll v. Alcoholic Beverages Control Coma n., 334 Mass, 613, 619 (1956), Oaii _ —. the Justices, 368 Mass, 857, 861 (1975). M.G.L. chapter 138 gives the local board and commission the authority to grant, revoke and suspend licenses. Chapter 1.38 was c "meted ...... to serve the public need and... to protect the common good." M.G.L. chapter 138, §23, as amended through St. 1977, x929, V. "[Tjhe purpose of discipline is not retribution but the protection of the public." Atbaa v. Board of Registration in Iv>edicita,a, 383 Mass. 299, 317 (1.981). The Commissiona is given `comprehensive powers of supervision over licensees," Connoll� y v. Alcoholic Bevera es Control Comm., 334 Mass. 613, 617 (1956), as well as broad authority to issue regulations. The ,Local board has authority to enforce Commission regulations. New 1?sIm Gardens Inc, v. Alcohoho _ c Beverages Control Commis�SIO, 11 Mass. App. Ct. 785, 788 (1981). IYI.CT.L. c. 138, §67, provides that "[a]ny person who is aggrieved by the action of the local licensing authorities in modifying, suspending, cancelling, revoking or declaring forfeited their license, Wray appeal therefrom to the Commission , ... if the Commission approves the action of the logd licensing authorities it shall issue notice to them to that effect, but if the Commission disapproves of the action d hall issue a decision in writing advising said local authorities of the reasons why it does not app ( ) sba11 then. remand the matter to the said local authorities for further acticn." As noted above, the Licensee does not challenge the Local Board's 'Finding that the violations occurred. Therefore, the Commission must review whether the penalty imposed by the Local Board for these violations was reasonable. The Local Board argues that a ninety (90) day suspension /closure is appropriate based on a second and third violation of sales to a minor, which were non - compliance checks, that occurred, within thirty yar) days of the first violation, and the Licensee has only been. in business for a little more than one (l} year, Furthermore, this is a normal practice of the Licensee, one of the minors involved was seventeen (17) ears old, and no identification was requested by the store employee, nor presented by the minor. years The Licensee admitted to the violations, but argued for a. ,mitigation of the tithe /suspension to be served/closed, arguing that a ninety (90) day closure was effectively a revocation of its license. The Licensee argued for a90 day suspension, with 45 days to be served, and 45 days to be held in abeyance for a period of two years. The Licensee argued for a lesser period of time of the actual suspension closure, and to hold some time in abeyance as probation f or the Licensee, and slt,ould another violation occur, this suspension held in abeyance would then be imposed. The Commission finds that the Licensee committed the two (2) violations for serving a minor, and that the Licensee has a prior violation for the same offense, thereby constituting second and third violations/offenses for sale to a minor, all three of which are non- compliance checks. The Commission also finds that the three violations were within a one month period of time. However, the And violation whieb occurred on July 29, 2014, for which the penalty of a four day suspension was imposed, the Licensee slid not appeal, and is not the subject matter of this appeal other than its carrsideration as a first of'f'ense for the violation of a sale of alcoholic beverages to a minor. The second and third violations for the violation of sales to a minor, non- compliance cheeks, involved. the same minor, snaking two Purchases on the same day. This is the penalty for which the Licensee is appealing. The Licensee has admitted to the two violations and stipulates to these violations being second and third offenses, In reviewing the Local Board rules, the Commission is guided by a. discussion of progressive sanctions which is developed and found in two cases; Aoplebee's Northej t lnc, dba Apppieb_ee's Nei . lr.borhood 10/17/2014 15:01 6177273065 INVESTIGATORSG PAGE 06/87 Bar &Grill ( "Appl.ebce's "), Suffolk Superior —or Court C.A. No. 03 -610 -A (Sikota, J.); and Alc oholic Hevera ©Control Commission vs. the Licensin OR the o ou- 11, In `ApolebeeS1 the Licensee challenged a five (S) day suspension as too severe. The Court laid out the criteria that the Town ) of Weymouth used for its calibration OF penalties. `These included: (i) the number of prior Offenses; offense' the degree of inspection (of customers) exhibited. by the licensee; (iii) the severity and type the (iv) the efforts to identify purchasers of alcohol, if any, (v) the appearance of the P'uuetonable one gand illegal sale; (vi) the quality of evidence of the violation, i.e. clear violation versus q sti (vii) the general reputation of i reasons, the resulting sanction t does not fail outside the bound cstof Court 1.ound, "that for rationality." in reviewing the Town's imposed sanctions the Court found that the Town's well- develope disciplinary system helped to avoid "abrupt or draconian pu.nishment " instead, the system "implemented graduated penalties and afforded the warnings of graduated penalties to offenders." td at 6. Upon Commission review of the Rules and Regulations promulgated by the Local Board of Reading, the rules state the Penalties for liquor. violations: the penalty for and 9aoffense offensc is warning six days toil Zed3ys suspension; 2" offexaRe is three day to six days suspension; suspension. The Local Board rules also state that. these penalties are only a guide, and that the Local Board may use its discretion regarding the factors surrounding the violation. The Commission finds that the sanctions imposed in this matter underwent a detailed analysis and thorough scrutiny by the Local Hoard, However, the .Local Board surpassed its own suggested guidelines in this matte' regarding its penalties for second and third offenses, The Commission agrees that the Licensee has not held the license for a .lengthy period of time, and that two sales to minors (three within Commission one month) all non - compliance checks, are extremely serious and egregious. erg the Loca Board. finds that a straight suspension/closure for 90 days surpasses the suggested gu idelines The CornMission is persuaded that the sanctions imposed in this matter, area s inch, s'stcnt that Rules and Regulations promulgated by the Local Board. As such, ruin penalty comprised of a period of suspensionlelosure, with some period of time held in abeyance, thus, placing the Licensee on probation wit's a suspension to be imposed immediately upon, the finding of any future violation, to be a more reasonable and measured penalty for the Licensee's second and third offenses. CONCLUSION Based on the evidence and rulings above, the Alcoholic Beverag 5 Control e` 1t i'"'On DISAPPROVES Jay the action of the Local Board in suspending the M.G.L. c. 138 § and Ricky's, Inc. dba Ricky's Liquor for ninety (90) days to be served/closed, and remands the Matter to the Local Board with the recommendation that the license be suspended for a period of :ninety (90) days, with fifty (50) days to be served/closed, and forty (40) days to be held in abeyance for a period of two (2) years provided no further violations of Chapter 138, Local Board, or commission Regulations occur. 10/17/2014 15 :01 6177273065 INVESTIGATORSG PAGE 07/07 ALCOHOLIC BLV RAGES CONTROL COMMISSION Kathleen McNally, Commissioner - i. Susan Corcoran, Commissioner Dated: OcWber 17.2014 You have the right to appeal this decision to the Superior Courts under tha provisions of Chapter 30A of the a Massachusetts General Laws within thirty (30) days, of reoeipt of this decision. cc: Neil Mooney, $sq. via facsimile 617 - 720.7877 jJoiuta M. Brewer, Esq• via facsimile 617- 489 -1630 Frederick G, Mahony, Chie:Plnvestigator Local Liccasing Board Adininistration File IN Board of Selectmen Minutes - July 29, 2014 - page 5 John Halsey noted the Police received an anonymous tip and the Detective immediately sees it happen. These out of town kids were not there because there was a sale going on. He is not happy that there was a six month delay in training and a delay in getting the video to the Police. He couldn't understand why he would spend $4,000 for an ID checker but won't hire an IT person to give the Police what they ask for. John Arena asked if there was more than one tip and Chief Cormier indicated there was - one verbal and one week later a text tip. Kevin Sexton asked if the Police went back to view the tapes to see if other purchases were made by minors and Detective MacHugh indicated no because they had a hard time narrowing down the tape to July 3`d Marsie West asked how long their license has been valid and it was noted it was issued on June 24, 2013. The Town Manager noted that the Selectmen's Policy suggests a warning to three day suspension for the first offense. Town Counsel Ray Miyares noted that the policy is a guideline. John Arena noted that three indicators are a trend and he is inclined to do greater than the minimum. Kevin Sexton suggested five days, but five days was for a third violation. Marsie West suggested four days which is in line with a second violation. John Halsey noted that it is very troubling that there has been no compliance check in over one year; the TIPS training has been ignored; and there's been halfhearted support to the Police., He feels that four days will send a message and if another violation happens he will vote to suspend and revoke the license. A motion by Ensminger seconded by West that the Board of Selectmen close the hearing on the Possible modification, suspension or revocation of the Retail Package Store License to Expose, Keep for Sale and to Sell All Kinds of Alcoholic Beverages for Jay & Ricky, Inc. d /b /a Ricky's Liquor, 214 Main Street for violating MGL Chanter 138, Section 34 for the sale or delivery of alcoholic beverages to a Person under 21 years of age, was approved by a vote of 5 -0 -0. A motion by Ensminger seconded by Sexton that the Board of Selectmen find Jay & Ricky, Inc. d /b /a Ricky's Liquor, 214 Main Street, Reading in violation of MGL Chapter 138, Section 34 for the sale or delivery of alcoholic beverages to a Person under 21 years of age on July 3, 2014, was approved by a vote of 5 -0 -0 A motion by Ensminger seconded by West that Jay & Ricky Inc. d /b /a Ricky's Liquor, 214 Main Street, Reading be penalized with a four day suspension for violation of MGL Chapter 138, Section 34 for the sale or delivery of alcoholic beverages to a Person under 21 years of age on July 3, 2014 was approved by a vote of 5 -0 -0. A motion by Ensminger seconded by Sexton that the four day suspension for Jay & Ricky, Inc. d /b /a Ricky's Liquor, 214 Main Street Reading take place on September 15, 16, 17 and 18, 2014; that the license be surrendered to the office of the Town Manager no later than 9:00 a.m. the first day of the suspension to be returned to the licensee by 9:00 a.m. the first day following the suspension; and that a Placard be placed on the premises during the period of suspension Page 1 5 / u' Board of Selectmen Minutes - September 2, 2014 - page 6 and they indicated they had been there before. The video tape shows that the clerk was not checking ID's. She feels revoking is too big of a jump and a few days in not enough. She also suggested that the Board not ask what dates are best. Marsie West asked if the ID machine is installed and Mr. Patel indicated it is. Ms. West asked if the machine gives a report and Mr. Patel said it does give the date and time. A motion by Ensminaer seconded by West that the Board of Selectmen close the hearing on the possible modification suspension or revocation of the Retail Package Store License to Expose, Keep for Sale and to Sell All Kinds of Alcoholic Beverages for Jay & Ricky, Inc. d /b /a Ricky's Liquor L 214 Main Street for violating MGL Chapter 138, Section 34 for the sale or delivery of alcoholic beverages to a person under 21 years of age, was approved by a vote of 5 -0 -0 A motion by Ensminaer seconded by Halsey that the Board of Selectmen find Jay & Ricky, Inc. d /b /a Ricky's Liauor, 214 Main Street Reading in violation of MGL Chapter 138, Section 34 for the sale or delivery of alcoholic beverages to a person under 21 years of age on August 3 2014 was approved by a vote of 5 -0 -0 A motion by Ensminaer seconded by Arena that the Board of Selectmen take a formal posture that there is substantial evidence of this being a regular business practice was approved by a vote of 5 -0 -0. John Arena noted that they are only seeing 10% of the problem. He is in favor of a 90 day suspension to be served immediately. Town Counsel Ray Miyares noted that the motion should modify the previous vote so the four day suspension that has not been served yet is served at the beginning or the end of the new suspension. Kevin Sexton suggested having the 90 day suspension begin in October to see if they don't sell to minors again in one month. Marsie West disagreed because something bad could happen. John Halsey noted that parents of the minor are here and nobody wants to see something tragic happen. In fact, we don't know if there has been a regional tragedy due to this. He would support starting the suspension tomorrow. He's not willing to take another chance. He feels 90 days will give the owner a chance to come up with a business strategy and plenty of time to hire someone that can be trusted and trained. A motion by Ensminaer seconded by Halsey that Jay & Ricky. Inc d /b /a Ricky's Liauor, 214 Main Street Reading be penalized with a 90 day suspension for violation of MGL Chapter 138, Section 34 for the sale or delivery of alcoholic beverages to a person under 21 years of age on August 3 2014 was approved by a vote of 5 -0 -0. A motion by Ensminaer seconded by Sexton that the 90 day suspension for Jay & d Rirlew Tnr A /h /n Qirlrvr� 1iti.— "%IA RAs:.. a -1__ —. —__ _rr__ie___ 3VCIJL6111LJC1 J, zma-t anu tnat me oreviousiy imposea suspension ne served at the end of this sentence: that the license be surrendered to the office of the Town 00� Manager no later than 9:00 a.m. the first day of the suspension to be returned to the licensee by 9:00 a.m. the first day following the suspension; and that a placard be placed on the premises during the period of suspension indicating the business�� is "unable to sell lauor due to a suspension of the liquor license for sale of liquor to an underage person" and that Jay & Ricky. Inc reimburse the Town of Reading for Constable and advertising fees was approved by a vote of 5 -0 -0 Page 1 6 Move that the Board of Selectmen accept the recommendation of the ABCC dated October 17, 2014, and vote to amend its prior vote so as to suspend the liquor license for Jay & Ricky, Inc. DBA Ricky's Liquor for a period of ninety (90) days, with fifty (50) days to be served /closed, and forty (40) days to be held in abeyance for a period of two (2) years provided no further violations of Chapter 138, Local Board, or Commission Regulations occur. The fifty (50) day period shall begin on September 3, 2014 and expire on October 23, 2014. The licensee did not appeal a four (4) day suspension imposed earlier this year, so the four (4) day suspension will be served as voted on September 2, 2014, to begin at the end of the current suspension period, beginning October 23, 2014, and ending on October27, 2014. The license shall be available at Town Hall in the Town Manager's Office between 8am and 5pm on Monday, October 27tH C16)