Booze News: Distilled in Room 215

A blog about the Baltimore City Liquor Board

What happened at the Liquor Board on June 27, 2013

Written by Kristine Dunkerton

1:00 pm Docket:

Hearings began at 1:26 pm.  Chairman Fogleman announced that any approvals made are subject to the Liquor Board receiving various documents before the license is issued and all decisions are unanimous unless the Board says otherwise.

The hearings are summarized below in the order in which they appeared on the public docket (as opposed to the order in which they occurred).

__________

Establishment address: 510 E. Belvedere Avenue

Establishment Trade name: Mason and Diner [the application lists the trade name as “Mason Diner,” but the applicants corrected this during the hearing]

Hearing Time: 1:30 – 1:43

License type: B Beer, Wine & Liquor (Restaurant license, all alcohol may be sold from 6 am to 2 am)

Reason for hearing: Application for new license and request for outdoor seating [outdoor seating request was not listed on the public docket, but was addressed at the hearing]

Zoning (according to Baltimore CityView): B-2-2 (Community Business District)

Neighborhood (according to Baltimore CityView): Chinquapin Park

Area demographics (as of 2010, from Baltimore Neighborhood Indicators Alliance (BNIA)): 69% Black, 23% White; 4% Hispanic ethnicity; 29% households have children under age 18; median household income: $44,853; 6% households live below the poverty line

Name of associated corporate entity: Farmhouse Diner and Oyster Shed, LLC

Does the associated corporate entity exist and is it in good standing (according to the website of the Maryland State Department of Assessments and Taxation (SDAT))?  Yes, yes

Location of associated corporate entity’s principal office: Baltimore

Applicants’ criminal record:  None

Does the application contain 3 signatures from Baltimore City property owners who are registered to vote and who have known the applicant(s) for at least 2 years?  Yes, according to the applicant, after questioning by Chairman Fogleman, who said that the Liquor Board would verify the signatories’ information and let the applicant know if the application needs to be amended.

Attorney for licensee: Caroline Hecker and Stanley Fine, Rosenberg Martin Greenberg LLP

# of people there in support of license: 2

Attorney for community: N/A

# of protestants: 0

# of inspectors present: 1 (Inspector Fosler, who said that a notice was posted on the property on June 10)

Notes from hearing: The applicant will be the owner and general manager of the restaurant, which will serve locally sourced “classic American diner fare” and have a kids’ game room.  The bar manager was also at the hearing.  The applicant’s attorney presented the Board with an explanation of the restaurant concept, a conceptual menu, and a floor plan showing 88 seats plus bar seats and two long community tables outside.  The attorney for the applicant also said that the project will comply with the Belvedere Square Planned Unit Development, specifically Amendment 4.  The restaurant will operate from 4 pm to midnight Monday – Thursday, 4 pm to 1 am Saturday, and  4pm to [author could not hear] Sunday.  The applicant, who spent six years at Woodberry Kitchen, is investing approximately $880,000 in the project, which will create approximately 39 new jobs.  The applicant will not be seeking live entertainment.  Spike and Amy Gjerde of Woodberry Kitchen will be consulting on the project but do not have any financial interest in it.

The attorney for the applicant said that there is a need for this restaurant because it will be family-friendly and different from other restaurants in the area.  She presented a letter of support from the Belvedere Improvement Association and a petition with 54 signatures.

Chairman Fogleman and Commissioner Smith both asked if Farmhouse Diner and Oyseter Shed, LLC’s corporate documents were up to date, to which the applicant replied yes.

Result of hearing: New license and outdoor seating granted.

What the vote was: Unanimous

Portions of state law and/or Board Rules and Regulations Commissioners cited in decision: MD Code Article 2B § 10-202(a) (“Before approving an application and issuing a license, the board shall consider: 1) The public need and desire for the license; 2) The number and location of existing licensees and the potential effect on existing licensees of the license applied for; 3) The potential commonality or uniqueness of the services and products to be offered by the applicant’s business; 4) The impact on the general health, safety, and welfare of the community, including issues relating to crime, traffic conditions, parking, or convenience; and 5) Any other necessary factors as determined by the board.”)

Other reasons Commissioners gave for decision: The applicant is fit and proper to hold a liquor license and has experience at Woodberry Kitchen.  The menu, floor plan, photographs, Planned Unit Development, valuation, and community support exhibits and the lack of opposition also weighed in the Commissioners’ decision.

Issues raised in the audit present in this case: N/A

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Establishment address: 550 Washington Boulevard

Establishment Trade name: Hampton Inn Downtown Baltimore

Hearing Time: 1:54 – 2:04 pm

License type: BHM Beer, Wine, & Liquor (license for a hotel with 100 or more rooms and at least $500,000 in capital investment, privilege granted from 6 am to 2 am)

Reason for hearing: Request for extension of license privileges into outdoor area within property line of hotel

Zoning (according to Baltimore CityView): B-4-1 (Central Business District)

Neighborhood (according to Baltimore CityView):  Downtown West

Area demographics (as of 2010, from Baltimore Neighborhood Indicators Alliance (BNIA)):  39% White, 37% Black, 16% Asian, 3% 2 or more races; 5% Hispanic ethnicity; 9% households have children under age 18; median household income: $38,146; 18% households live below the poverty line

Name of associated corporate entity: MCRB Camden Licensee, LLC

Does the associated corporate entity exist and is it in good standing (according to the website of the Maryland State Department of Assessments and Taxation (SDAT))?  Yes, yes

Location of associated corporate entity’s principal office:  Dover, DE

Attorney for licensee: [author did not catch her name]

# of people there in support of license: 2

Attorney for community: N/A

# of protestants: 0

# of inspectors present: 2

Notes from hearing:  This was an application for outdoor seating for the sports calendar season, starting with this season.  According to the applicants’ attorney, the extension is within the hotel’s property lines, so does not require permitting through Zoning.  The applicants presented an agreement with the Ridgely’s Delight Community Association, and Chairman Fogleman verified and clarified that the applicant who signed the agreement was voluntarily entering into license restrictions in the form of a Memorandum of Understanding (MOU).  The outdoor extension will apply only on days with sporting and holiday events and outdoor service will end by 8 pm.  The sidewalk will not be part of the expansion unless the hotel discusses it ahead of time with the community.  One of the inspectors asked how the applicants planned to separate the sidewalk from the alcohol service area and the applicants said that bike racks will surround the area, along the hotel property line.  The applicants will make a donation to the community association for trash clean-up.  The attorney for the applicants said that Tom Yeager of Downtown Partnership is not taking a position on the application.  The restaurant manager will manage this location as part of his restaurant group, which includes restaurants in Washington, DC.  Chairman Fogleman asked about steps the applicants has taken to ensure the operation goes smoothly.  The applicants said that they will hire off-duty police officers and take other measures to ensure that the neighborhood is not disturbed.  The manager has owned a restaurant with a large patio before, in Georgetown, Washington, DC.

Result of hearing: Outdoor extension of license granted.

What the vote was: Unanimous

Portions of state law and/or Board Rules and Regulations Commissioners cited in decision: Md Code Art. 2B § 10-202

Other reasons Commissioners gave for decision: MOU with community association

Issues raised in the audit present in this case: N/A

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Establishment address: 301 Light Street

Establishment Trade name: New York Deli

Hearing Time: 1:26 – 1:29

License type: BD7 Beer, Wine & Liquor (Tavern, alcohol may be sold for consumption on site or off premises, privilege granted from 6 am to 2 am)

Reason for hearing: Request for a hardship extension

Zoning (according to Baltimore CityView): B-5-1 (Central Commercial District)

Neighborhood (according to Baltimore CityView):  Inner Harbor  

Area demographics (as of 2010, from Baltimore Neighborhood Indicators Alliance (BNIA)): 80% White, 12% Black, 4% Asian.  3% Hispanic ethnicity.  11% households have children under age 18.  Median household income: $78,578.  12% households live below poverty line.

Name of associated corporate entity: Harbor Deli, Inc.

Does the associated corporate entity exist and is it in good standing (according to the website of the Maryland State Department of Assessments and Taxation (SDAT))?  The entity exists but is not in good standing.

Location of associated corporate entity’s principal office:  Baltimore

Applicants’ criminal record:  None

Attorney for licensee: Pete Prevas

# of people there in support of license: 1

Attorney for community: N/A

# of protestants: 0

# of inspectors present: 1 (Inspector Fosler – did not have any comments)

Notes from hearing:  This is an “additional hardship extension.”  The applicant said that a transfer application (from someone who hopes to buy the license) would be filed the day of the hearing or the next day.

Result of hearing: Order that a transfer application be filed by the Close of Business the following day, and a continuance of this order for 30 days.

What the vote was: Unanimous

Portions of state law and/or Board Rules and Regulations Commissioners cited in decision: N/A

Other reasons Commissioners gave for decision: the pending transfer

Issues raised in the audit present in this case:

Corporate Standing: Audit Finding 3 states that “BLLC lacked documentation that certain State law and BLLC licensing requirements were met.”  Specifically, 9 of 30 “judgmentally selected” licenses lacked the required documentation indicating that the licensed business was in good standing with the State Department of Assessments and Taxation (i.e. that the business has filed all required documents and is not delinquent with any State agency).  The audit recommends that “staff verif[y] that applicants are in good standing with SDAT and include relevant documentation in the licensee files.”  Harbor Deli, Inc. is not in good standing with SDAT.

Expired license: Audit finding 19 states that “[s]tate law requires that, 180 days after a licensed establishment has closed or has ceased active alcoholic beverage operations, the alcoholic beverage license shall expire except under defined circumstances….Licensees may also submit a written request for a hardship extension within the 180-day period.  The law further states that its intent is that the total time for which a license may be deemed unexpired is 180 days, or 360 days if an undue hardship extension has been granted.”  The Audit also recommended “that the Board discontinue granting additional hardship extensions beyond that permitted by law.”  The Executive Secretary’s response to this Recommendation was that the Board would “continue to rely upon balanced judgment, case law [none cited] and appellate review, until instructed to do otherwise by an appropriate legal authority.”  In response, the Auditor cited the clear language of Md Code Article 2B § 10-504(d), stating that all licenses expire by operation of law after 360 days from the date of closure, and advised that should the Liquor Board wish “to continue its current practices, it should obtain formal independent legal advice to support its practices.”  The applicant’s attorney indicated that this was an “additional” hardship extension request.

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Establishment address: 1238-42 Light Street

Establishment Trade name: Old Federal Hill Liquors

Hearing Time: 1:44 – 1:50 pm

License type: A Beer, Wine & Liquor (Package goods store, all alcohol may be sold for consumption off-premises from 6 am to midnight, no Sunday sales)

Reason for hearing: Request for a hardship extension

Zoning (according to Baltimore CityView): B-2-3 (Community Business District)

Neighborhood (according to Baltimore CityView): Federal Hill  

Area demographics (as of 2010, from Baltimore Neighborhood Indicators Alliance (BNIA)): 80% White, 12% Black, 4% Asian; 3% Hispanic ethnicity; 11% households have children under age 18; median household income: $78,578; 12% households live below the poverty line

Name of associated corporate entity: Elizabeth M, Inc.

Does the associated corporate entity exist and is it in good standing (according to the website of the Maryland State Department of Assessments and Taxation (SDAT))?  Yes, yes

Location of associated corporate entity’s principal office:  Baltimore, MD

Applicants’ criminal record:  None

Attorney for licensee: [author did not catch her name]

# of people there in support of license: 2

Attorney for community: N/A

# of protestants:  N/A

# of inspectors present:  1

Notes from hearing:  This was a hearing on a first request for a hardship extension, following a request letter written on June 6.  The applicants requested that their license be extended even though the establishment is not open because they have had complications with construction.  They want to re-open but the City processing is slow and they need at least 2-3 more months.  According to the applicants, the construction has been approved by all departments except for the Fire Department and one other.  These last two inspections should happen soon.  Commissioner Smith asked when the last day of operation was.  The applicant said that he is currently operating at his old location and is attempting to move to 1230-32 Light Street, to a new building.  Commissioner Smith asked the applicants to ensure that “capacity” was provided on their application.  [The author is unclear as to whether this was a hardship extension due to an establishment closure or due to a license transfer that is taking a long time.] 

Result of hearing: Hardship extension granted.

What the vote was:  Unanimous

Portions of state law and/or Board Rules and Regulations Commissioners cited in decision: Md Code Art. 2B § 10-504(d) (180 days after the holder of any license issued under the provisions of this article has closed the business or ceased alcoholic beverages business operations of the business for which the license is held, the license shall expire unless: (i) An application for approval of a transfer to another location or an application for assignment to another person pursuant to § 10-503(d) of this subtitle has been approved or is then pending;….(iii) A written request for a hardship extension, as provided in this subsection, is filed within the 180-day period.)

Other reasons Commissioners gave for decision: N/A

Issues raised in the audit present in this case: N/A

__________

Establishment address: 291 South Pulaski Street

Establishment Trade name: None (license is under the name of a “secured creditor”)

Hearing Time: 1:51 – 1:53

License type: BD7 Beer, Wine & Liquor (Tavern, alcohol may be sold for consumption on site or off premises, privilege granted from 6 am to 2 am)

Reason for hearing: Request for hardship extension

Zoning (according to Baltimore CityView): R-8 (General Residence District)

Neighborhood (according to Baltimore CityView):  Carrollton Ridge  

Area demographics (as of 2010, from Baltimore Neighborhood Indicators Alliance (BNIA)):  83% Black, 13% White; 31% households have children under age 18; median household income: $19,183; 38% households live below the poverty line

Name of associated corporate entity: 532 N. Montford, Inc.

Does the associated corporate entity exist and is it in good standing (according to the website of the Maryland State Department of Assessments and Taxation (SDAT))?  Yes, yes

Location of associated corporate entity’s principal office:  Baltimore

Does at least one of the applicants reside in Baltimore City (and has resided in Baltimore for at least 2 years)?  Yes

Attorney for licensee: Shawn Harby

# of people there in support of license: 0

Attorney for community: N/A

# of protestants: 0

# of inspectors present: 2 (no comments)

Notes from hearing:  An attorney who represents both the licensee and a secured creditor (Norino Properties, LLC, who, according to the attorney, has a $49,000 interest in the license) appeared and said that the secured creditor is trying to sell the license but can’t find a buyer.  He hopes that the secured creditor will find a buyer in 180 days.  Commissioner Smith asked if the corporate entity is in good standing.

Background: In December 2012, the Liquor Board unanimously revoked this license, following a shooting at the establishment and a Liquor Board finding that the licensee was guilty of violating 2 provisions of state law and 6 Liquor Board rules.  After a letter six days later from the licensee’s attorney (the same attorney who appeared at this hearing) asking that the Board “reconsider” its decision because his clients would “suffer irreparable financial harm and injury through the loss in value of the license,” it appears that the Board un-revoked the license.  This author did not see any documentation of the Board’s decision on the reconsideration in the license file, but assumes that the Board reversed its decision, based on the fact that the license is still in existence.

Result of hearing: Hardship extension granted.

What the vote was: Unanimous

Portions of state law and/or Board Rules and Regulations Commissioners cited in decision: Md Code Art. 2B § 10-504

Other reasons Commissioners gave for decision: The applicant is attempting to find a responsible owner to whom he can sell the license.

Issues raised in the audit present in this case:

Reconsideration: In Audit Finding 18, the auditors state that “BLLC lacked written policies and procedures for the disciplinary process.”  Specifically, the auditors found that the Board did not have any formal process for decision modifications or appeals after public hearings, and “[d]ue to a lack of documentation, [they] could not readily determine the number of post-hearing modifications made by the Board…however, [their] review of case files found evidence that this does occur.”  State law provides that the proper forum for appealing a Liquor Board decision following a public hearing is in Baltimore City Circuit Court.  State law does not make any mention of “reconsiderations,” in which the Board reverses a decision it announced at a public hearing.  In this case, the licensee was only able to request and receive a hardship extension because the Liquor Board reversed its public decision to revoke the license after the public hearing occurred.

2:00 pm Docket:

Before the only case on the 2:00 pm docket, Chairman Fogleman announced that any approvals made are subject to the Liquor Board receiving various documents before the license is issued and all decisions are unanimous unless the Board says otherwise.

Establishment address: 12-18 E. Cross Street

Establishment Trade name: Crossbar

Hearing Time: 2:17 – 6:00 pm  [The hearing date was originally set for July 18, 2013, but was inexplicably moved forward, despite opposition from the protestants.  After the hearing date was changed, the protestants requested a postponement, but it was denied.]

License type: BD7 Beer, Wine & Liquor (Tavern, alcohol may be sold for consumption on site or off premises, privilege granted from 6 am to 2 am)

Reason for hearing: Application for transfer of license [a 51% protest was listed on the public docket, but this specific protest did not occur]

Zoning (according to Baltimore CityView): B-2-3 (Community Business District)

Neighborhood (according to Baltimore CityView):  Federal Hill

Area demographics (as of 2010, from Baltimore Neighborhood Indicators Alliance (BNIA)):  80% White, 12% Black, 4% Asian; 3% Hispanic ethnicity; 11% households have children under age 18; median household income: $78,578; 12% households live below the poverty line

Name of associated corporate entity: 18 Cross, LLC

Does the associated corporate entity exist and is it in good standing (according to the website of the Maryland State Department of Assessments and Taxation (SDAT))?  Yes, yes

Location of associated corporate entity’s principal office:  Baltimore

Does at least one of the applicants reside in Baltimore City (and has resided in Baltimore for at least 2 years)?  Yes

Pecuniary interest of Baltimore City resident in establishment: 1%

Applicants’ criminal record:  None

Does the application contain 3 signatures from Baltimore City property owners who are registered to vote and who have known the applicant(s) for at least 2 years?  Unclear.  The applicant testified that he knew all 3 of the signatories and that they lived in the properties they listed, but a protestant testified that one of the signatories has not lived in the property listed for years.

Attorney for licensee: D. Dusky Holman, Smith, Gildea & Schmidt

# of people there in support of license: 2

Attorney for community: Brooke Lierman, Brown, Goldstein & Levy

# of protestants:  About 71

# of inspectors present: 1

Notes from hearing:

Motion to Dismiss: The attorney for the Federal Hill Neighborhood Association (FHNA) and the community asked the Board to dismiss the application because the license had expired pursuant to state law (Art. 2B § 10-504(d)), as, according to the attorney, the applicant had not met any of the exceptions that would allow the license to remain valid beyond the permissible 180 days of inactivity (or 360 days with a hardship extension).  She presented a report from the Fire Marshall stating that the business at which the license was located had ceased operation in July 2009.  The attorney cited the legislative history of this provision of the law, whose purpose, according to Senator Della, was to “combat the practice” of license transfers being approved and then not happening.  She also cited a recent Court of Special Appeals case, YIM v. Tuzeer, that confirmed that state law is clear on the fact that licenses expire after 180 days of inactivity.  The attorney also asked the Board to reconsider its April 2011 decision granting the transfer of what she said was already a dead license.  The attorney argued that even if the license had been valid in April 2011, it had expired by the time of the present hearing, as 683 days in which the license was inoperative had passed.  The attorney for the applicant argued that since the license had been renewed by Liquor Board staff in April 2013, it should be deemed unexpired, because “there must be certainty for licensees.”  He said the Board has discretion to extend the time frame of a license, and the applicant has been up against real estate issues – “look at the market” – but he “paid a lot of money for this license.”  The attorney for FHNA then cited the recent legislative audit, AG opinions, and YIM v. Tuzeer to say that the Board does not have discretion in this matter.  The Board denied the Motion to Dismiss, saying that the burden was on the attorney for FHNA to provide evidence that the license was dead, and she had not sufficiently done so, though she could do so through testimony in the hearing.

Applicant’s Argument:  The applicant said he has spent $100,000 on zoning approvals, etc. on this restaurant project and has tried to come to an agreement with the South Baltimore Neighborhood Association (SBNA).  He had difficulty because his landlord raised the price on his old location and he did not have any place to move.  Over the last eight months, he has been doing research on a “new concept” and has decided on a model based on Frankford Hall, a Stephen Starr restaurant in Philadelphia.  He proposed having an indoor/outdoor restaurant/bar and German beers and said “We want the families.”  The applicant presented a floor plan in which four vacant buildings where currently “the wrong kind of people gather at the wrong times” (“an area that promotes vagrancy,” according to the applicant’s attorney) would be rehabbed.  (At this, a member of the audience laughed loudly and was removed from the hearing room.)  The floor plan showed stationary picnic tables and no dance floor.  The applicant also presented a menu, and expounded on an open-air concept that would not be open to Cross Street, but would be protected by a brick block façade.  When the Commissioners asked if there was any possible way for noise to disrupt residents, the applicant said, “I don’t think so” (when further questioned, he said this was based on his experience – he had another outdoor space at Hard Yacht Café in Dundalk, but doesn’t remember the license type).  He also said that he does not “foresee crime being an issue,” as the activity would deter crime.  He said he has the support of other licensees in the area, who all seem happy with his proposal.  The applicant presented 21 letters of support (to which FHNA objected due to illegible signatures) and a letter from the couple that lives closest to the property.  No one canvassed the neighborhood seeking support; social media advertised the project and people came and signed the petition at Ryleigh’s Oysters (owned by Brian McComas, a partner in the project), which had over 700 signatures.  The attorney for the applicant presented the applicant as fit to own a license, as he has been approved as a Baltimore City license holder in the past, has been involved with 15 restaurants/establishments in Maryland and in Pennsylvania, and has invested over $150,000 in a kitchen for the restaurant.  Chairman Fogleman asked the applicant to testify as to whether he knows the three citizens who signed his application, and he said he did.  Chairman Fogleman said the citizen information would be verified by the Board of Estimates.  When Commissioner Smith asked about the presence of a security plan, the applicant said that he would use the same security system that is in place at Ryleigh’s: an ID check, 3-4 guys on the premises watching everyone, and a valet service.  Commissioner Smith also noted that the applicant was using the words “restaurant” and “bar” interchangeably, and wondered why an open area would be beneficial to a non-bar restaurant – she asked if there would be a dance floor and the applicant said no.  Commissioner Jones commented that Cross Street is a very small street, and asked how the applicant would ensure that valet parking would not block the street.  He also noted his concern about illegal valet parking.  The applicant said that he was going to hire a third party valet service.

Protestants’ Case:  The protestants submitted about 60 exhibits, including a petition and letters from Senator Ferguson, all three State Delegates for the area, City Councilman Bill Cole, the Downtown Baltimore Family Alliance, and nearby property owners.  The attorney for the protestants was not permitted an opening statement, so testimony began immediately with the protestants’ first witness, who testified that one of the citizen signatories of the applicants’ application has not lived in the property he lists as his residence for years – he now lives in the county.

            Expert testimony:  Keenan Dworak-Fisher, Chair of FHNA’s Liquor and Live Entertainment Committee, was qualified as an expert witness in urban economics.  He presented his research and data on liquor licenses in Federal Hill (he started researching all licenses in the 21230 zip code in 2007).  He showed the Commissioners a chart in which he tracked the capacity of licensed establishments within 4 blocks of Cross Street Market in 2003, 2007, and 2013, and found a 33% increase in capacity.  As a resident of Federal Hill since 2002, Dr. Dworak-Fisher also testified about the negative impact the bar saturation has on his quality of life, specifically urine, vandalism, and noise that necessitates his daughter sleeping with loud music on.

            FHNA president:  Eric Costello, the president of FHNA, testified that the neighborhood is already at a breaking point in terms of licensed establishments.  He said that the South Baltimore Neighborhood Alliance (SBNA), Sharp-Leadenhall, Federal Hill, and Otterbein community associations are all opposed to this project.  People are leaving the neighborhood and people are not moving into the neighborhood because of all of the bars and problems with parking and noise.  Mr. Costello said that he had hoped to negotiate an MOU with Brian McComas, a partner in the project, but was told from the beginning that the applicants would not sign an MOU and would not negotiate because their project was a “done deal” and they weren’t asking for community support.  The FHNA and the applicant met as recently as the day before the hearing, but were nowhere close to having an agreement.  The negotiations consisted of Crossbar saying it would not participate in Federal Hill Pub Crawls, but not giving on plans to have a capacity of 293 within 12 months (FHNA wanted a maximum of 150).  Mr. Costello said that he is worried about the kitchen closing at 11 pm but the establishment staying open until 2 am, and not having any restrictions on food sales [due to the type of license, a BD7 tavern license].

            Downtown Baltimore Family Alliance (DBFA):  Judy O’Brien of the Downtown Baltimore Family Alliance, which has a membership of 3,000 families, testified that DBFA voted unanimously to oppose the transfer and expansion – the first license opposition ever for the Alliance.  Mrs. O’Brien said that families complain about vandalism, urination, and trash and are moving out of the area.  DBFA wants to keep families in the city – they are good for growth (and the mayor’s 10,000 new families plan), schools, crime, etc.  She said families expect a certain amount of crime, grime, and noise in the city – they like restaurants and bars – but are opposed to this one.  She lives on Montgomery Street in Otterbein and has been woken up at 2 am by bar-goers, and 300 more people in this location is too many.  The attorney for the applicants asked Mrs. O’Brien, “Don’t families need a place to go?” and she said, “We have plenty of places to go.”

            Residents:  Sally Dworak-Fisher, a resident of Federal Hill for 11.5 years, testified that she and her family get woken up at 2 am by traffic and mayhem around Cross Street.  She recounted an incident in which she opened the window to ask someone urinating on her doorstep to stop because people lived there, and the person said, “I don’t give a shit – I live in Harford County.”  Alluding to comments from people saying that residents of Federal Hill chose to live amidst lots of bar activity, Mrs. Dworak-Fisher said, “We didn’t move to a nuisance – we moved to a neighborhood.”  She reiterated her concern about people drinking beer at 2 am and suggested that the applicants get a restaurant license if they want a restaurant.  Bill Romani, who lives a block and a half from the intersection where the property is located and used to be Vice President of Federal Hill Main Street, spoke to the Commissioners about a delicate balance in urban areas between the neighborhood, bars/restaurants, and retail.  He said Federal Hill’s population increased by 1700 between 2000 and 2010, and there are now more residents between 20 and 29 years old.  In 2000, Federal Hill had 50 businesses and was a top shopping district in the region (voted one of the 5 Great Main Streets in America, 2008-2009), but now it is “out of balance.”  Mr. Romani testified that there is an $18.5 million gap between the economic need of residents and what is actually there, meaning that people have to go outside of the neighborhood to shop.  There is a $69 million surplus in the services offered by restaurants and bars.  Mr. Romani said that bringing people into the neighborhood is not necessarily a bad thing, but they don’t have the proper infrastructure.  He said that the proper balance is not “an idealized concept from Bing Crosby in the 1950s” – it existed just a couple years ago, but the increasing capacity is throwing the balance off, and this project would take up storefronts that could be used for something else.  Ginny Gerhart, a 25-year resident of Federal Hill and Co-Chair of the FHNA Parking Committee, testified about parking in the neighborhood.  She said that Federal Hill has 1700 on-street parking spaces, and on a normal day there are parking problems; she and her husband sometimes have to park illegally, and she has heard a number of stories from residents about parking, including people having to pay to park in garages or parking illegally and paying fines.  She said that the neighborhood changed 6-7 years ago – now bar patrons are people who want to get over-intoxicated.  In Mrs. Gerhart’s opinion, what the neighborhood needs is more restaurants that can serve liquor but are major restaurants, and the last thing it needs is a 4-building bar.  When the applicant’s attorney asked if Mrs. Gerhart would feel better if the applicant were committed to food sales, she said yes.  The last resident testimony was from Edward Kelly, who has lived in the neighborhood since 1974, in a house that his great-grandfather built in 1881.  His backyard backs up to the property in question.  He wondered where the valet service was going to put the cars, and said he was disheartened by Brian McComas’ comment that “like everyone else in the neighborhood, everyone will have to look for a parking spot.”  Mr. Kelly also testified that he was concerned about noise (he’s the closest neighbor and a brick wall has not been successful in blocking noise in other places), deliveries (he said delivery trucks will have to park in the street), trash (the trash truck will have to pull into the center of Patapsco), and rats (he can no longer use his backyard because of the rats he sees daily – he doesn’t go out there except to put out poison).  Though Mr. Kelly said he thinks Federal Hill has probably improved over the decades, he also described the old days in the neighborhood, with people sitting on their stoops, sharing recipes, talking about who’s doing what to whom, how the kids are, etc.          

            Police:  Officer Runk of Southern District Operations and Neighborhood Services testified about a report he generated of calls for service for post 942 around Cross Street Market from April 1, 2012 through May 28, 2013.  The Officer described the Cross Street Market area as “mass chaos” and said officers try to keep the peace in front of bars by pushing people out into the neighborhood.  After the attorney for the protestants showed a video of bars letting out on Cross Street and being asked if the scene was a typical one, he said, “That’s actually a slow night.”  He said that the police often have to stop traffic in the middle of the street.  Commissioner Smith asked the Officer if behavior like this is typical at Powerplant Live and in Canton, and the Officer said that it is amplified in Federal Hill because there’s no room to move around there.  Officer Runk also testified that 4 off-duty police officers work overtime from 11 pm – 3 am on weekends, and he thinks they are reimbursed by the Federal Hill Hospitality Association.

            Councilman Cole:  Bill Cole testified against the application, saying that if the applicant really planned on opening a restaurant, he would not have any problem agreeing to restrictions.  He talked about “balance” in the neighborhood and said that the hours between 10 pm and 2 am have become “simply intolerable” in the area.

Applicants’ Closing Argument:  The attorney for the applicants said that his clients were put in a difficult situation, because the community protestants said they were going to put on a 51% protest [where 51% of residents/businesses in the area protest the application, and if successful, the license cannot be legally granted] but also said they wanted to negotiate.  He said negotiations broke down when Brian McComas was asked to stop doing Pub Crawls, so “we had to go through this hearing.”  The attorney offered concessions during his closing argument, including a 25% food requirement, a $500/weekend valet contract, no application for live entertainment for a year (though the applicants would apply for special event permits and let FHNA know in advance), a 11 pm weekday and midnight weekend patio closing time for at least a year, and limited capacity (210) for a year.  To explain why the application was for a tavern license, he said, “There’s a bar component because we all need to make money as well.”  He also said that if the mayor is going to bring 10,000 new families into the city, there will not be enough bar/restaurant capacity, and crime will start when places get too packed.  In terms of noise, he said, “If we are too loud, we get policed on that.”

Protestants’ Closing Argument:  The attorney for the protestants said that offering negotiations during the closing argument was too late, and she read tweets by project proponents mocking the neighborhood association to show that the applicants had not been interested in negotiating before.  She said despite the FHNA trying to negotiate repeatedly with the applicants and having long conversations about neighborhood concerns, the two parties were still very far apart on many issues.  In terms of the negotiations offered during the hearing, she said that 6- month and 12-month concessions don’t mean anything to the neighbors, because they will still be there at month 7 and month 13.  The attorney said that this case was an appeal by over 450 Baltimore residents, and thousands more through FHNA, to this Board and this City to come forward and say that we have enough bar stools.  In addressing the applicants’ argument, she said that they did not present one single witness in support of the required public need and desire component of state law, though the protestants’ had 5 neighborhood associations, 450 people, 6+ business owners, Senator Ferguson, Delegate Clippinger, Delegate Hammen, Delegate McHale, and Councilman Cole asking for a denial of the application.  She said that Federal Hill is so far past the tipping point that it can’t possibly handle a bar of this size, and the people who patronize the establishments come from all over the city – many are college students and don’t live in Federal Hill.  Ten years ago, the neighborhood had 3,600 bar patrons and now it has 5,000.  She argued that nothing in the proposal was unique [another issue that state law requires the Liquor Board to consider], as there is a beer garden in Powerplant Live and one being built at McHenry Row.  She read from letters of protest about health, safety, and welfare concerns [another component of state law] and said that the protestants have invested in their neighborhood and in Baltimore, and are just asking for the status quo, which is full of problems, and the Liquor Board had the opportunity to say “no more bar stools.”

Result of hearing: Application denied.

What the vote was: Unanimous

Portions of state law and/or Board Rules and Regulations Commissioners cited in decision: Md Code Art. 2B § 10-202(a)(2)

The Board said it was focusing on “public need and desire” (§ 10-202(a)(2)(i)(1)), and cited the following as factors in its decision that there is no public need and desire for the project at this time: Unclear security plan; Applicant has not reached out to the community; Opposition by other neighborhood associations besides FHNA; Capacity (this would be the largest licensed establishment in the area); Eric Costello’s testimony about the investor saying the project was a done deal; 311 calls for service; Downtown Baltimore Family Alliance’s opposition (and its 1200 membership families in South Baltimore); Mrs. Dworak-Fisher’s testimony that her daughter can’t sleep with the window open; Concept of neighborhood balance and Councilman Cole’s testimony; Police description of “mass chaos” and dispersing people into the neighborhood so that it’s safe in front of the bars.

The Board said it did see a potential uniqueness of services (§ 10-202(a)(2)(i)(3)), and thought the establishment could be a successful part of the community, but “not there and not now.”  As for safety, health, and welfare concerns (§ 10-202(a)(2)(i)(4)), the Board cited parking issues and unprecedented community opposition.

Other reasons Commissioners gave for decision: Chairman Fogleman said he had “very mixed feelings personally about this case,” and that the proposal looked like a good plan to the Commissioners, but their responsibility is not to decide if they would like to patronize an establishment, and there was unprecedented cohesion and support among community associations in opposing this project.  The Chairman said “It’s apparent that something went wrong here.  There’s some disconnect.”  Due diligence was not done and community communication did not happen.  This is a big project and there needs to be more give and take between residents and owners. 

Issues raised in the audit present in this case:

Expired license: Audit finding 19 states that “[s]tate law requires that, 180 days after a licensed establishment has closed or has ceased active alcoholic beverage operations, the alcoholic beverage license shall expire except under defined circumstances….Licensees may also submit a written request for a hardship extension within the 180-day period.  The law further states that its intent is that the total time for which a license may be deemed unexpired is 180 days, or 360 days if an undue hardship extension has been granted.”  In his response to audit recommendations the Executive Secretary said that the Board would “continue to rely upon balanced judgment, case law [none cited] and appellate review, until instructed to do otherwise by an appropriate legal authority.”  In response, the Auditor cited the clear language of Md Code Article 2B § 10-504(d), stating that all licenses expire by operation of law after 360 days from the date of closure, and advised that should the Liquor Board wish “to continue its current practices, it should obtain formal independent legal advice to support its practices.”  In this case, the last time the license was in operation was in the summer of 2009.  The Liquor Board granted a transfer of the license in April 2011.  Even if the license had been unexpired in April 2011, by 2013 it is expired pursuant to state law.

Completed Transfer:  Audit finding 6 is that “BLLC did not always ensure that license transfers were completed within 180 days of receiving Board approval” and reports that of 10 licenses tested, 4 transfers did not occur within the 180-day period required by state law.  Independent counsel advised the Liquor Board “that this law was directory and not mandatory,” but the auditors recommended that the Liquor Board obtain an Attorney General Opinion on this matter, which the Liquor Board committed to doing.  If the timeline presented by the attorney for FHNA is correct, then the license in this case was not transferred within 180 days (or within 360 days, as permitted if a hardship extension is granted).

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