Hurwitz, Richard & Sencabaugh LLP is pleased to announce that Bob Hurwitz and Gene Richard have been named Massachusetts and New England Super Lawyers for the fifteenth consecutive year, and that Dan Sencabaugh has been named a Massachusetts and New England Rising Star for the third time. Bob Hurwitz and Dan Sencabaugh received their honor in the field of construction law while Gene Richard received his recognition in the field of administrative law for his work as a liquor licensing attorney. The Super Lawyers and Rising Stars lists appear in Boston Magazine as well as the publication New England Super Lawyers. The Super Lawyers list recognizes the top five percent of attorneys in New England while the Rising Stars list recognizes the top 2.5 percent of attorneys 40 years old and under or in practice for 10 years or less.
Summary of ABCC Actions – June 2014
Ten recent decisions by the Massachusetts Alcoholic Beverages Control Commission (“ABCC” or “Commission”) were published in early June.
One “automatic amusement device” case was brought against a licensee, the Knights of Columbus lodge in Wakefield, for permitting gambling on its premises in violation of 204 CMR 2.05(2). Two machines located in a room near the entrance were determined by investigators to be gambling devices. The manager reported that the lodge had arranged a 50-50 proceeds split with the owner of the machines. The licensee was ordered to have the devices removed immediately and the Commission suspended the license for ten days, with five days to be served and five days to be held in abeyance for two years, provided that no further violations occur.
Two cases involved restaurant licensees charged with purchasing alcoholic beverages from package stores (rather than from wholesalers, importers or manufacturers). Whaleback Restaurant (Bourne) and Combination Improvement Club (Methuen) each stipulated to allegations of sales of alcoholic beverages purchased from a §15 package store, in violation of M.G.L. c. 138 § 23. Evidence of the transgressions included admissions from the licensee, package store stickers on bottles and evidence of glue-like substances in the shape of a retail price sticker. Because the licensees had been in business for lengthy periods of time (10 years and more than 50 years, respectively) without a record of previous violations, the Commission issued each a warning.
Five “sale to minor decisions” were published, with four of the five cases involving “sting operations,” in which ABCC Investigators utilized underage operatives to attempt to purchase alcohol on licensed premises:
Licensees Sinnis Pub (Dudley) and Kwik Stop (Dudley) each stipulated to allegations of making a sale or delivery of alcoholic beverages to a person under 21 years of age after an underage operative working with ABCC investigators purchased alcohol without being asked for identification. Because each licensee had been in business for ten years with no previous violations, the Commission issued each a warning. Similarly, licensee Vorelli’s (Provincetown) was determined to have permitted the sale or delivery of an alcoholic beverage to a minor when an underage operative was in possession of an alcoholic beverage on its premises and was not asked for identification. Because the licensee had been in business for more than thirty-five years with no previous violations, the Commission issued a warning. Nor’east Beer Garden (Provincetown) also stipulated to a sale or delivery to an underage person after failing to request ID from an operative; a three day suspension was issued, to be held in abeyance for two years, provided that no further violations occur.
Bay State Wine & Spirits (Canton) was also investigated for alleged sales or deliveries of alcoholic beverages to underage individuals, partially in response to information provided to the ABCC by the Canton Police Department. During a span of thirty minutes on an evening in October 2013, Investigators recorded two sales to underage individuals using a fraudulent ID (neither individual working with ABCC investigators) on the premises. Subsequent to the incidents, the licensee made efforts to institute additional employee training and to confiscate fraudulent identification. The Commission suspended the license for five days, with the suspension to be held in abeyance for two years provided that no further violations occur.
Acting on an anonymous complaint filed with the Commission, ABCC Investigators reported a violation of M.G.L. c. 94 § 186 at The End Zone Sports Pub (Mendon) for falling below standards of purity. Investigators reported finding twelve alcoholic beverage bottles that contained foreign matter (fruit flies). Because the licensee had been in business for 10 years with no previous violations, the Commission issued a warning.
Finally, the license of the Hillside Country Club (Rehoboth) had previously been indefinitely suspended for violations of M.G.L. 151A §§ 14 and 15 (regarding payroll taxes). Based on evidence introduced at a hearing in November 2013 that demonstrated the licensee’s good standing with the state and with wholesalers, the indefinite suspension was reversed to a suspension of time served (from January 17, 2013 to October 5, 2013).
Summary of ABCC Actions – May 2014
Fourteen recent decisions by the Massachusetts Alcoholic Beverages Control Commission (“ABCC” or “Commission”) were published in early May. Eleven of the fourteen decisions involved allegations of sales of alcoholic beverages to a person under the age of 21, two concerned “automatic amusement devices”, and one the rules for “club” licenses. The moral of the May decisions? If you have to be a liquor licensee caught violating a liquor law, be in business for many years before that happens – and don’t let it happen twice!
The club license decision was perhaps the most unusual. The Polish American Citizens Club of Webster received an indefinite suspension from the Commission in July of last year for failing to file annual reports with the ABCC for the years 2003 – 2012, and also for having changed officers and directors without appropriate approvals from local and state licensing authorities. The Club brought its records up to date, and the ABCC rescinded the indefinite suspension. However, the Club went without a license from the end of July to the beginning of November. The decision serves as a reminder to club licensees of the need to file annual reports with the ABCC concerning their officers and their compensation.
The two “automatic amusement devices” cases were brought for having such devices (which are licensed under M.G.L. c. 140 §177A) in rooms that were closed off and not in open view at all times. The Commission cited the licensees under the Alcoholic Beverages laws for “permitting an illegality” on their premises, in violation of 204 CMR 2.05(2). Each of the licensees installed “see-through” doors after the date they were cited but before the hearing, and was given a warning by the Commission, which noted that each licensee had been in operation for many years without previous violations (for 22 years and “over 100 years”, respectively).
Turning to the “sales to minor” decisions, ten of the eleven concerned “sting operations,” where ABCC Investigators send an underage operative into a licensed premises to attempt to purchase alcohol. In the eleventh case, the ABCC investigators encountered an under-aged patron who had already been served an alcoholic beverage without benefit of a “sting”. In each of the eleven decisions, the licensee stipulated to the violation, so only the penalty portion of the ABCC’s decision was really at issue.
Six of the eleven licensees were given warnings, mostly due to having been in business for extended periods without any previous violations. These included: Panchos Mexican Restaurant (Pittsfield) (over ten years); Plainville Liquors (Plainville package store) (nineteen years); South Liquor Mart (Plainville package store) (more than twenty years); Xtra Mart (Spencer package store) (more than twenty years); and Powers Restaurant & Café (West Springfield restaurant) (a truly remarkable more than sixty years with no previous violations). Another licensee with no previous violations was also given a warning, Rama Wine & Spirits (Norwood package store), not because of the length of time it had been in business, but because “The Commission considered the extenuating circumstances which occurred at the time of the offense and which later resulted in the death of the clerk’s family member…..” The Commission did not elaborate within their decision as to the specific nature of the “extenuating circumstances”.
Four more licensees were presumably first time violators, but perhaps not in business for such significant periods of time, as they were each given three day suspensions, to be held in abeyance for two years provided no further violations occur. These four included Seaside Wine & Spirits (New Bedford package store); The Thirsty Whale (Newburyport restaurant); King Jade Restaurant (Northridge); and Sharon Market (Sharon package store).
The last “stung” licensee was Knox Trail Inn (Otis). Within the previous two (2) years, the Commission had already found a violation and ordered a three (3) day suspension, to be held in abeyance provided no further violations occurred. Accordingly, for this second violation within two years, the Commission suspended the license for four days, of which two will be served and two to be held in abeyance for two years provided no further violations occur. Plus, the Commission reinstated the prior suspension, so the licensee will serve a total of five (5) days, with two to be held in abeyance.
Robert W. Hurwitz and Eugene R. Richard Named Super Lawyers
Partners of the firm Robert W. Hurwitz and Eugene R. Richard have both been named Massachusetts and New England Super Lawyers for the tenth consecutive year. Bob was named in the field of construction law, and Gene handles a range of business and legal issues, including contract negotiation and enforcement, administrative and regulatory law, and corporate law.
The Super Lawyers list appears in Boston Magazine as well as the publication New England Super Lawyers, and recognizes the top five percent of attorneys in New England.
Recent Updates at the Alcoholic Beverages Control Commission
Recently, two new updates were posted on the Alcoholic Beverages Control Commission’s (“ABCC”) website. The first, effective May 28, 2013, is an advisory regarding obtaining a Certificate of Good Standing (COG) in connection with liquor license applications. Obtaining a sign-off from the Department of Revenue (DOR) can sometimes be a drawn-out process, so now the ABCC will accept COGs as part of the liquor license applications submitted to the local liquor licensing authorities. To obtain a COG from DOR, the applicant should go to DOR’s website and follow the links to obtain a COG. In situations where a license is being transferred, both the Buyer and the Seller should obtain the COG.
The second update to the ABCC’s website is the list of active state licensees. These licenses include: Farmer Brewery, Farm Distillery, Farmer Winery, Wholesalers, Manufacturers, Winery Shipment, and Caterers Licenses. The retail licenses issued by the local municipalities and approved by the ABCC are not currently listed on this site.
These updates are part of an ongoing process at the ABCC to make the more transparent and efficient for all those involved in the liquor licensing process.
Recent ABCC Decision a Win for Liquor License Applicants
The Massachusetts Alcoholic Beverages Control Commission (ABCC) recently issued a decision in favor of a liquor license applicant in Falmouth.
Murphy’s Package Store (Murphy’s) applied to the Falmouth Board of Selectmen to move from its existing Main Street location to new premises approximately four miles away in West Falmouth. After hearing testimony both in favor and opposed to the move, the Board of Selectmen voted 3 to 2 to deny the application. The issues of traffic and parking at the new location were hot topics at both the Falmouth hearing, and at the subsequent appeal before the ABCC.
The ABCC disapproved of the Board of Selectmen’s denial, and remanded the matter back to the Board with the recommendation that the application be granted. In doing so, the ABCC made statements that may help counter some of the common tactics used by opponents to liquor license transfers.
All cases involving the issuance or transfer of liquor licenses in Massachusetts involve a determination of a public need for the license. However, a licensing board in reaching a decision concerning public need is required to make specific findings that are supported by the record. Regarding Murphy’s, the ABCC stated that the Board of Selectmen’s denial was inadequate as it merely recited a summation of the opponents who testified about parking and traffic. The [ABCC] finds this decision to be a general finding (emphasis added). To distinguish, the ABCC cited the case Exotic Restaurant Concepts and stated that [r]ecitals of testimony do not constitute findings. See Exotic Rests. Concept, Inc. v. Boston Licensing Board, Suffolk Superior Court, C.A. No. 07-3287 (Borenstein, J.). In denying the application for transfer, the Board of Selectmen merely recited the statements of the opponents concerning traffic and parking, and this is insufficient to deny a license transfer. In fact, the record reflected that adequate parking was available and neither the Police Chief nor Fire Chief had any objections to the transfer.
Additionally, the ABCC refused to give any weight to one opponent’s statement that there existed another package store located less than ½ mile away from the proposed transfer location. The ABCC stated that “[t]his distance between the existing package store and the proposed location of Murphy’s was not verified to the [ABCC], nor was it explained how this distance was calculated or calibrated.”
The ABCC noted that a single liquor store in one area of a town could be considered a monopoly. The ABCC in its decision stated that “the action of the Local Board in denying this application has the effect of continuing in place the monopoly held by the sole § 15 license in this section of the town.”
Based on the ABCC’s Murphy’s decision, liquor license applicants are advised to prepare to substantively counter objections that may be raised by opponents. Common general objections such as traffic, parking, and proximity of other package stores can be countered by a license applicant who builds a strong and detailed record at the hearing.
Howard J. Wayne to Chair MCLE Panel on Alcohol, Food & Entertainment Licensing
Wayne, Richard & Hurwitz LLP invites you to join us for a seminar entitled Alcohol, Food & Entertainment Licensing & Liability Update 2013. The seminar will be taking place on Thursday, April 11th from 2:00 to 5:00 p.m. both via Webcast and live at the MCLE Center located at 10 Winter Place in Boston. Howard J. Wayne, founding partner of the firm, will be chairing our esteemed panel. The panel will include:
- Kim S. Gainsboro, Esq. Chairwoman, Alcoholic Beverages Control Commission
- William Kelley, Esq. General Counsel, Alcoholic Beverages Control Commission
- Paul M. Maleck, Esq. Doherty, Wallace, Pillsbury & Murphy P.C.
- Paul Mullan, Esq. Commissioner, Worcester License Commission
- Nicole Murati Ferrer, Esq. Chairwoman, Licensing Board for the City of Boston
At this seminar, you will hear directly about the licensing process directly from the decision makers and leading practitioners. The law surrounding licensing and liability is always changing; this program will help you and your clients stay current on this challenging area of the law. The conclusion of the program will include an “Ask the Experts” session for attendees to get answers to their licensing questions.
Please click here to register to attend the seminar or click here to sign up for the live Webcast. The panel is looking forward to fielding your questions!
ABCC Rules For Gas Station Licensee
Not that long ago, it was quite unusual to find alcoholic beverages for sale at a
gasoline station in Massachusetts. However, the advent of convenience stores linked to gasoline stations is rapidly changing that situation. A recent decision by the Massachusetts Alcoholic Beverages Control Commission (ABCC) illustrates the trend.
In 2011, Northgate Mobil in Revere filed an application with the Revere Licensing Board to obtain a license to sell all alcoholic beverages, for off premises consumption (i.e., a “package store” license). Northgate Mobil already held an off-premises consumption license to sell wine and beer, and wanted to upgrade to sell spirits as well. In December 2011, the Revere Board denied Northgate Mobil’s application, stating in part that a liquor license was inappropriate for an establishment “so closely associated with the operation of motor vehicles”. The applicant appealed the decision to the ABCC, and the ABCC recently ruled in favor of Northgate Mobil.
The ABCC cited a number of factors in support of its disapproval of the Revere Board’s denial. For instance, Northgate Mobil had never been disciplined for violating laws or regulations relating to alcohol sales, and explained to the ABCC why that was no accident “the store’s owner spends approximately 50 hours a week on the premises, and all of the store’s employees and managers are trained in-house in the proper handling of alcoholic beverages sales.” Furthermore, not only was there no local opposition to the expanded license, but one city councilor appeared at the hearing and declared support for the license on behalf of himself and his constituents.
Intriguingly, the ABCC also took issue with the Revere Board’s core finding that the application should be denied because Northgate Mobil was “closely associated with the operation of motor vehicles.” Even though the applicant operates a gas station, the ABCC quite logically noted that “All off-premises alcoholic beverages licenses by their very nature generally involve an individual driving to the premises, purchasing the alcohol, and then leaving the premises with the alcoholic beverages and consuming it somewhere else”.
Given the ABCC’s recognition that most package store sales occur to consumers who have driven to the store, whether or not it is located at a gas station, their roadmap was clear the ABCC remanded Northgate Mobil’s application to the Revere Board for further consideration, with the recommendation that Revere grant Northgate Mobil’s application for an all alcoholic beverages license.
Boston liquor licenses
May 27’s Boston Sunday Globe contained two thought-provoking Opinion pieces by Globe deputy editor Dante Ramos: “Boston bar buzz-kill” and “For the price of a Boston liquor license…oh, never mind“. Ramos discusses the reasons Boston has less bars and restaurants that serve alcohol than you might think, or many might want. Ramos also explains why restaurant liquor licenses are so expensive in Boston, and how that skews the types of restaurants that can survive and flourish. Some possible “solutions” that Ramos throws out that could deserve support include a new class of licenses for smaller bars, or new non-transferable licenses whose fees could be dedicated to support late-night bus or T service. Well worth taking a closer look….
Casinos and Happy Hour Regulations in Massachusetts
There has been much debate over whether Massachusetts should permit the establishment of casinos within the Commonwealth. In an interesting development, the Massachusetts Senate approved an amendment to the pending casino bill that would eliminate the famous (or infamous, as some would say) “happy hour regulations.”
Since 1984, the Massachusetts happy hour regulations have prohibited bars and restaurants from offering free or discounted drinks to their patrons. Specifically, the regulations require bars and restaurants to keep the price of a drink the same throughout the entire calendar week. Thus, no 5 p.m. discounts allowed, unless the bar or restaurant wants to charge the reduced price for the entire week. Bars and restaurants are also prohibited from altering the volume of your drink without proportionally altering the price.
The casino bill, if passed by the Massachusetts legislature, could change all of that. On Tuesday, October 11th, the Senate voted 25 to 13 to amend the pending casino bill. The amendment would essentially rid Massachusetts of the happy hour regulations for bars and restaurants, as well as casinos. The amendment must still be approved by the House and signed by the Governor into law.
The concept of the “free drink” is closely tied to casino gambling, presumably because it keeps gamblers motivated to continue gambling. Connecticut’s Foxwoods and Mohegan Sun casinos have long offered free drinks to its customers. It is thought that if Massachusetts’ casinos are to compete, free drinks are a necessity.
However, if casinos are exempted from the happy hour regulations, many bar and restaurant owners are worried that they will not be able to compete. Thus, the amendment to the casino bill would eliminate the regulations for bars and restaurants and create a level playing field.
It also remains to be seen whether Massachusetts casinos will allow smoking. Connecticut law currently allows gamblers to smoke and Connecticut casinos have set up gambling rooms where smoking is permitted. There is no smoking amendments currently in front of the Legislature.
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