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

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.

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.]

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.

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).

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.

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.

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.