Booze News: Distilled in Room 215

A blog about the Baltimore City Liquor Board

What happened at the Liquor Board on April 24, 2014.

Written by Becky Witt

Commissioners Smith and Jones were present on April 24. The Chairman position on the Board formerly belonging to Stephan Fogleman, who is now a judge on the Orphans’ Court, has still not been filled.

1:00pm cases

Applicants Dhruba Raj Onta & Daoud Faddoul
Business Name BDU Nepal, LLC
Trading As Bristol Liquors
Address 507 S. Broadway
Type of License Class “BD7” Beer, Wine & Liquor License
Reason for hearing Reconsideration of the decision of March 20, 2014.
Hearing notes

Commissioner Smith began the hearing by informing all present that the Board would hear no new testimony in the case. Therefore, no one was sworn in to be witnesses.

Mr. Abraham Hurdle, from the offices of Mr. Melvin Kodenski, represented the licensees. Ms. Joanne Masopust, President of the Fells Point Community Organization (FPCO), served as the main community representative in the case (and was joined by the Fells Point Residents’ Association and Douglass Place).

Commissioner Smith announced that the Board has reviewed the community’s request for reconsideration and Mr. Hurdle’s objection to the request for reconsideration. The Board has considered all of the issues raised by both sides, and the Board does have some concerns. There is some truth in argument against the specific design and the present day pattern of operation of this tavern. The diagrams provided by the applicant of his proposed tavern do raise some concerns. She noted that it was the opinion of the community association that the applicant did not comply with Rule 5.03 of the Liquor Board’s Rules and Regulations, which “are specific with regard to a minimum standard.” Smith reiterated that there is “something about this case that bothers the Board,” specifically, the relationship and intent of licensees and their communication with community members. She ended by saying that the Board wants to know whether the applicant for the BD7 license would like to make any concessions in writing to the community that would act as restrictions on the license.

Mr. Hurdle pointed out that the Board had said that no new evidence could be presented at the hearing. However, he went on to say that the applicant had tried to negotiate with the community and that they had refused to negotiate or to meet.

In response, Ms. Masopust, who had not been sworn in as a witness, then testified (as she had at the first hearing) that her organization had taken a position to oppose new BD7s in the neighborhood, based on an oversaturation of liquor establishments in the neighborhood. She pointed out that Class BD7 license holders are allowed to be open for 32 more hours per week than Class A license holders. She noted that there are vulnerable people nearby and a “vagrant problem” on the Broadway corridor. The ban on new BD7s was a way of protecting vulnerable members of the community.

Commissioner Smith then clarified that the community sees no opportunity for any agreement or any restrictions placed on the business in exchange for supporting the transfer. Ms. Masopust (again, not under oath), testified that that was true, as far as FPCO was concerned.

Zoning B-2-2
Neighborhood Fells Point
Area demographics 70% White, 8% Black, 5% Asian; 15% Hispanic ethnicity; 11% households have children under age 18; median household income: $69,105; 11% households live below the poverty line
Does corp entity exist, in good standing? Yes; yes
Location of entity’s principal office 507 S. Broadway, Baltimore, MD
Attorney for licensee Mr. Abe Hurdle
# in support ~5
Attorney for community None
# of protestants ~5
# of inspectors 0
Result of hearing Board holding of March 20 stands; license transfer approved.
Vote tally Smith and Jones in favor.
Portions of state law cited in decision None
Other reasons given for decision Commissioner Smith stated that “the Board has not found where we erred and unfortunately this request for reconsideration is denied.”
Issues raised in audit present in this case or other issues observed

There were some unusual issues with this case.

First, the Board said that they would hear no new testimony in the case, so no one was sworn in to testify. However, Joanne Masopust did end up testifying, in response to questions from the Commissioners.

Second, the only questions that the Board had for both sides were about whether the community wants to enter into a Memorandum of Understanding (MOU) with the applicant for the BD7 license. However, these questions have nothing to do with whether the Board erred in the previous hearing, when it approved the transfer, which is what the reconsideration hearing is supposed to consider.

[Ms. Masopust explained again, as she had in the previous hearing, that the neighborhood groups had decided to oppose all new BD7 licenses within their boundaries because they have an oversaturation of liquor establishments. (The Board is required to consider, under Article 2B section 10-202(a), “(1) The public need and desire for the license; (2) the number and location of existing licenses… (3) the potential commonality or uniqueness of the services and products to be offered … [and] (4) the impact on the general health, safety, and welfare of the community, including issues relating to crime, traffic conditions, parking, or convenience.” The community members had presented evidence on all of these factors at the previous hearing and had opposed the license transfer altogether. This strategy had been successful in the opposition to Ellington’s at 805 S. Broadway, on October 3, 2013, but it was unsuccessful in the Bristol Liquors transfer hearing.]

Applicants Germania Benalcazar, Kevin Perry & Cecilia Benalcazar
Business Name Iberico, LLC
Trading As Liv2Eat
Address 1444 Light Street
Type of License Class “D” Beer, Wine & Liquor License
Reason for hearing Request to add outdoor table service
Hearing notes

The docket for this hearing was inaccurate in two ways: (1) the license at this address is a beer and wine license only, not a beer wine and liquor license. (2) The licensees have applied to add outdoor table service and live entertainment, not just outdoor tables.

Licensee Germania Benalcazar was present at the hearing, unrepresented. She testified that she had permission from the other two licensees (her husband and her mother) to represent all of their interests at the hearing.

Liquor Board Inspector Joann Martin testified that the Board did post public notice for the ten required days for both live entertainment and outdoor table service.

The licensee submitted a letter of support from the South Baltimore Neighborhood Association, dated April 9, 2014, signed by the President of the association. The letter was attached to a Memorandum of Understanding containing some license restrictions that the community association had negotiated with the licensee. The licensee has agreed to limit the late evening outdoor seating hours and to restrict live entertainment to certain quieter types, such as acoustic music. The licensee explained to the Board that the business has found it necessary to have outdoor seating and live entertainment to help bring in some additional revenue, since they are not allowed to serve liquor.

Zoning B-2-3
Neighborhood South Baltimore
Area demographics 90% White, 3% Black, 3% Asian; 3% Hispanic ethnicity; 15% households have children under age 18; median household income: $73,342; 8% households live below the poverty line.
Does corp entity exist, in good standing? Yes; no.
Location of entity’s principal office 1444 Light Street, Baltimore, MD
Attorney for licensee None
# in support 1
Attorney for community None
# of protestants 0
# of inspectors 1 – Joann Martin
Result of hearing Approved.
Vote tally Smith and Jones in favor.
Portions of state law cited in decision None
Other reasons given for decision None
Issues raised in audit present in this case or other issues observed None
Licensee Elizer Neger
Business Name 4919 Belair, Inc.
Trading As Good Fellas Lounge
Address 4919 Belair Road
Type of License Class “B” Beer, Wine & Liquor License
Reason for hearing Protest of Renewal under Article 2B § 10-301(a) by ten or more residents, commercial tenants who are not holders or applicants for any license issued under Article 2B, or real estate owners in the immediate vicinity of the licensed premises.
Hearing notes

Mr. Kodenski, for his client, submitted a motion to dismiss the protest of renewal of the license. Kodenski called Mr. Peter Prevas as an “expert witness.” Mr. Prevas established his expertise in the matter by testifying that he has been a member of the bar since December 1985 and has represented many licensees before the BLLC. He has represented licensees at protests of renewal of licenses since the late 1990s. Mr. Prevas has reviewed the petition as well as the applicable provisions of state law, and he informed the Board that it was his opinion that the community petition was not legally sufficient. The statute in question says that the protest of renewal must be signed by “not less than ten residents, commercial tenants who are not holders of or applicants for any license issued under this article, or real estate owners in the immediate vicinity in which the licensed place of business is located.” (Maryland Code Art. 2B section 10-301(a)(1)(iv)) Mr. Prevas gave his opinion that “immediate vicinity” in the context of this provision should be interpreted in light of a completely different section of Article 2B which requires signatories to be from properties within 200 feet of the establishment (referring to Article 2B section 10-202(e), known as the 51% rule, described below in the “other issues observed” section). Mr. Prevas also noted that he had done a Google search of the addresses, which had shown that several of the addresses were more than 200 feet from the establishment; since there were only ten signatories on the petition, and a few were allegedly defective, according to Mr. Prevas, the petition is invalid. He added that the petition is not dated and that the petition does not refer to any conduct of the licensee.

Commissioner Jones asked whether Mr. Kodenski and Mr. Prevas had taken their Google measurements in a straight line, because from the exhibits presented, the measurements look like driving directions, not “as the crow flies.”

Mr. Silbiger, attorney for the community, argued that the 200 foot rule referred to a very different kind of proceeding. He pointed out that the identical petitioners had all protested the previous year for the same case, and the Board had allowed the protest to go forward. He mentioned a Maryland state case that examined the idea of “vicinity” solely in terms of the voting precinct.

Mr. Kodenski argued that voting districts only come into play under Article 2B section 10-403, when the Board must schedule a public hearing when ten people in the same precinct as the bar make a complaint. He noted that the 10-403 provision had recently been used in the Voltage and Mustang Inn hearings (though the Voltage community hearing was never scheduled by the Board). He told the Board, “you can’t mix apples and oranges,” referring to using a different section of the code as a guide (though he himself had just used a different section of the code to come up with the 200 foot rule).

Zoning B-3-1
Neighborhood Frankford
Area demographics 15% White, 79% Black, 2% Asian; 2% Hispanic ethnicity; 35% households have children under age 18; 15% households below poverty line; median household income: $39,144.11
Does corp entity exist, in good standing? Yes; yes
Location of entity’s principal office 4919 Belair Rd, Baltimore, MD
Attorney for licensee Mr. Melvin Kodenski
# in support ~5
Attorney for community Mr. Clifford Silbiger
# of protestants ~8
# of inspectors 0
Result of hearing Petition dismissed.
Vote tally Smith and Jones in favor.
Portions of state law cited in decision None
Other reasons given for decision

Commissioner Smith said that the Board doesn’t agree with Mr. Kodenski that the community must allege specific bad acts (including dates and times) in their petition. However, the community must be prepared with those specifics at the hearing itself.

Commissioners Smith and Jones did agree that 2B section 10-301(a) requires the Board to make sure that the petitioners are in the immediate vicinity of the establishment. While the law does not give a definition of the immediate vicinity (i.e., 200 feet), there are three protestants that the Board considered to be too far away to count as being in the “immediate vicinity,” who were 500 feet and 1,000 feet away.

The Board then went off the record, but Mr. Silberger asked another question. He said that the licensee is violating the law that requires him to produce daily receipts that show that 51+% of his income is coming from the sale of food. Since the licensee has not done so, said Mr. Silbiger, he is violating the law. Commissioner Smith told Mr. Silbiger that he may address that issue with Mr. Douglas Paige, Acting Executive Secretary of the Liquor Board.

Issues raised in audit present in this case or other issues observed

The Board has never before used the 200-foot rule for protests of renewal; in this hearing and the one that followed it, 771 Washington Boulevard, below, the Board announced a brand-new, quite stringent standard for renewal protests. The 200-foot rule which they borrowed from Article 2B section 10-202(e) is stringent because it is pulled from an entirely different procedural tool. Under section 10-202(e), if more than 50 percent of the owners and tenants of real property within a 200-foot radius show up to a hearing to protest a new license, the Board must deny the transfer. The 200 foot rule is demanding because the tool is removing regulatory authority from the Board and placing it in the hands of community members. In contrast, for protests of renewal, all of the regulatory authority remains in the Board’s hands. The petition serves merely as a trigger that requires the Board to hold a public hearing; logically, it would make sense that the bar would be lower. A more analogous section of Article 2B would be section 10-403, which states that the Board must hold a public hearing if ten people in the same voting precinct as the bar who own property and are registered to vote at that address sign a petition asking for a hearing. This is the provision that forced a hearing on the activity at Mustang Inn on March 13.

Licensees Brett Austin & Joshua Foti-Contract Purchasers
Business Name N/A
Trading As N/A
Address 12-14 E. Cross Street
Type of License Class “BD7” Beer, Wine & Liquor License
Reason for hearing Protest of Renewal under Article 2B § 10-301(a) by ten or more residents, commercial tenants who are not holders or applicants for any license issued under Article 2B, or real estate owners in the immediate vicinity of the licensed premises.
Hearing notes

Mr. Joseph Woolman, attorney for the licensees, moved to dismiss the petition. He pointed out that the statute requires the petitioners to submit specific complaints as to the operation of the licensed business. However, Mr. Woolman stated, “there is no operation at this establishment, [because] as the Board is well aware,” CrossBar hasn’t opened yet.

He pointed out that these same protestants have filed an appeal on the February 20 Board ruling to the Circuit Court for Baltimore City. He argued that a protest of renewal is not the proper procedure, forum, or petition to file. This is a waste of everybody’s time.

Mr. J. Patrick Mcnichol of Ober Kaler, for the petitioners, submitted a motion to stay (postpone) the protest of renewal proceedings until the Circuit Court has made its decision in the appeal of the February 20 decision.

Mr. Woolman objected move to stay, arguing that there is no provision in Article 2B for such a motion.

Zoning B-2-3
Neighborhood Federal Hill
Area demographics 80% White, 12% Black, 4% Asian; 3% Hispanic ethnicity; 11% households have children under age 18; median household income: $78,578.
Does corp entity exist, in good standing? No corporate entity provided in docket.
Location of entity’s principal office No corporate entity provided in docket.
Attorney for licensee Mr. Joseph Woolman
# in support 0
Attorney for community Mr. J. Patrick Mcnichol
# of protestants ~10
# of inspectors 0
Result of hearing Case dismissed
Vote tally Smith and Jones in favor
Portions of state law cited in decision Article 2B section 10-301(a).
Other reasons given for decision The Board agreed that the section of the code requires that the protestants provide the board with complaints about the operations of the establishment; since the bar has been closed, the petitioners can have no complaints about its operations.
Issues raised in audit present in this case or other issues observed Though it was not mentioned specifically in the summary found in the Booze News post on the February 20 hearing, Mr. Woolman, at that February hearing, pointed out more than once that the community had never protested the renewal of CrossBar’s license. He used these renewals as evidence that the client reasonably relied on the Board’s annual renewal of the license and that the license, therefore, was not dead under Article 2B section 10-504(d). However, when the community did attempt to protest the renewal of the license in this case, the Board threw out the protest as improper.
Licensee Richard Davis
Business Name Steel Drum Café, LLC
Trading As Tilted Pig
Address 771 Washington Boulevard
Type of License Class “B” Beer, Wine & Liquor License
Reason for hearing Protest of Renewal under Article 2B § 10-301(a) by ten or more residents, commercial tenants who are not holders or applicants for any license issuedunder Article 2B, or real estate owners in the immediate vicinity of the licensed premises)
Hearing notes

Attorney Abraham Hurdle represented the licensee and moved to dismiss the petition in protest of the renewal of the license. Mr. Hurdle pointed out that there were 48 signatures on the petition; like Mr. Prevas before him, he looked up the addresses on Google Maps. Using the same new 200 foot rule that the Board had applied in the Belair Road case, he argued that the petition should be thrown out, because only eight of the signatories’ addresses are within 200 feet. He also pointed out that the protestants did not submit information on whether the people who signed the petition are license holders. Mr. Hurdle provided some supporting evidence for his argument, using the definition of the word “vicinity” from the dictionary and also used a criminal case, Boyer v. State, about the definition of “immediate vicinity” in the context of the firing of a gun. Mr. Hurdle argued also that the petitions include “materially misleading information,” indicating narcotics use related to the premises, which he said has never been found, public urination, which he claimed has never been cited, and other problems that can’t be linked directly to the bar. Commissioner Smith immediately objected to the last argument, stating that the Board would make the determination whether these allegations were true or false. Mr. Hurdle asked, then what is to stop the petitioners from making libellous claims? Hurdle added that the Board might be exposing community groups to libel or slander lawsuits from licensees; Commissioner Smith replied, “the Board has no control over that, as you know.”

Mr. Robert Dickerson was the main community representative at the hearing and was given time to look over the motion to dismiss submitted by Mr. Hurdle. He responded that, with respect to the specificity and misrepresentation arguments, the community members present at the hearing will provide specific information about all allegations. With respect to the issues with measurement, he pointed out that the Board had a longstanding tradition of interpreting the words “immediate vicinity” more broadly, including roughly a distance of two blocks from the establishment. He also pointed out that loud noises and disturbances travel further than bullet casings and that the method Mr. Hurdle used to measure the distances was not linear; he used the walking route, whereas he should have measured as the crow flies. He pointed out that there was no scale on the Google Map printouts, so it is difficult to measure distance in terms of feet.

Zoning B-2-3
Neighborhood Washington Village/Pigtown
Area demographics The Baltimore Neighborhood Indicators Alliance (BNIA) did not have demographics available for Washington Village/Pigtown.
Does corp entity exist, in good standing? Yes; yes.
Location of entity’s principal office 771 Washington Blvd, Baltimore, MD
Attorney for licensee Mr. Abraham Hurdle
# in support 0
Attorney for community None
# of protestants ~10
# of inspectors 0
Result of hearing Petition dismissed.
Vote tally Smith and Jones in favor.
Portions of state law cited in decision Article 2B section 10-202(e), the 51% rule.
Other reasons given for decision Commissioner Smith said that the law does not require specificity or truthful allegations in the petition. She quoted from the Liquor Board’s Rules and Regulations regarding the 200 foot rule within the 51% protest, described below and in the notes for the Belair Road case above. She stated, “according to our rules, the immediate vicinity shall be within 200 feet.” (The Rules and Regulations do not state this.) Out of 48 protestors, the addresses of only eight fall within 200 feet of the licensed establishment.
Issues raised in audit present in this case or other issues observed

The Board has never before used the 200-foot rule for protests of renewal; in this hearing, the Board announced a brand-new, quite stringent standard for renewal protests. The 200-foot rule which they borrowed from Article 2B section 10-202(e) is stringent because it is pulled from an entirely different procedural tool. Under section 10-202(e), if more than 50 percent of the owners and tenants of real property within a 200-foot radius show up to a hearing to protest a new license, the Board must deny the transfer. The 200 foot rule is demanding because the tool is removing regulatory authority from the Board and placing it in the hands of community members. In contrast, for protests of renewal, all of the regulatory authority remains in the Board’s hands. The petition serves merely as a trigger that requires the Board to hold a public hearing; logically, it would make sense that the bar would be lower. A more analogous section of Article 2B would be section 10-403, which states that the Board must hold a public hearing if ten people in the same voting precinct as the bar who own property and are registered to vote at that address sign a petition asking for a hearing. This is the provision that forced a hearing on the activity at Mustang Inn on March 13.

Comments are closed.

Disclaimer: While the author makes every effort to provide the most accurate and up-to-date information on this blog, the accuracy of some information is subject to change and cannot be guaranteed. Neither the author nor the publisher is responsible for any errors or omissions. All information in this blog is provided “as-is,” with no guarantee of completeness, accuracy, timeliness, or of the results obtained from the use of this information, and without warranty of any kind, express or implied. This blog is not intended to do harm to, defame, libel, or malign any religious or ethnic group, club, organization, company, individual, or government entity. In no event will the author, her employer, or the publisher be liable to you or anyone else for any action taken in reliance on the information in this blog or for any consequential, special or similar damages incurred, even if advised of the possibility of such damages.

The materials contained on this website have been prepared by Community Law Center, Inc. for informational purposes only and are not intended to be legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Copyright: Text, photos and other materials found on this website are the property of CLC, except where otherwise noted. Such materials may not be reproduced without CLC’s written prior consent.