What happened at the Liquor Board on January 29, 2015.

Gillis provided a capital investment breakdown of a projected $533,000 for the restaurant. Commissioner Moore asked what “F F & E” stood for in that breakdown. Gillis explained that it stood for furniture, fixtures and equipment. Mussel Bar and Grille purchased fixtures from the former operator in the space, Townhouse Kitchen, and will also be purchasing and installing new equipment as well. Moore replied that the list of projected expenditures is helpful, but the Board will need to see proof of actual expenditures before the license can be issued.

Commissioner Moore noted that the bar was closed on June 7, 2014, according to an inspector’s report, but Kodenski had submitted an application for a hardship extension on November 26, 2014, which the Board granted on January 8, 2015. The license, therefore, is still unexpired under Article 2B section 10-504(d).

Commissioner Jones asked whether the outdoor seating request had been approved by the BMZA. Ms. Hecker responded that it had been; in negotiations with the Canton Community Association, the restaurant had reduced its numbers of seats from two tables of four seats to two tables of two seats. The Canton Community Association originally did not want outdoor tables but agreed to this compromise.

Commissioner Moore pointed out that the Liquor Board’s application requires signatures from three people attesting to the applicant’s good character. The three signatures on this application were from Ms. Hecker and two fellow attorneys at her firm. Hecker responded that she has known her client for years. Moore agreed that the law had not been broken, but she wondered whether there could be anyone else who could attest to McCusker’s good character, other than her attorneys. Hecker responded that there were many people who could have signed, but she and her colleagues signed for simplicity and efficiency of getting the application filed.

Mr. Spivey then testified that he asked the cadet for ID; when Jones told Spivey he didn’t have ID, Spivey asked his birthday. When the cadet answered that his birthday was in 1991, Spivey asked if he knew his time of birth. The clerk said that the time of birth question was a trick question to see if he looked at his ID to answer it. Spivey apologized to the Board, and he said that he did hesitate to sell the cadet the alcohol.

Dr. Marvin Cheatham, president of the Matthew A Hensen Community Association testified that, normally, his group tries to have liquor establishments closed down, but this particular store reaches out to the community constantly. The community association knows the sincerity and cooperative nature of this establishment, and Cheatham asked for some leniency on behalf of the establishment.

Violation of Rule 4.20(b): Alterations – January 5, 2015 – At 2:35 PM Inspectors arrived at the establishment “Midtown Liquor Store” located at 17 W. Biddle Street in response to a citizen’s complaint regarding unabated housing code violations. The citizen’s complaint was based upon Department of Housing and Community Development (DHCD) Violation Notice 1172388A-1 and 940197A were issued to the property on November 21, 2014 and March 22, 2013. In total they listed approximately 10 violations of the housing code. Of the 10 items indicated in the violation: four (4) involved the installation of lights and frosted windows, and the changing of the color of the door of the establishment without prior approval from DHCD or CHAP. Such alternations must first be approved and permits issued by DHCD before installation.

Violation of Rule 4.18: Illegal Conduct – January 6, 2014 – At approximately 11:00 am Inspectors performed inspection of the establishment and found that the corporate entity that owned the business failed to have a registered trader’s license with the Comptroller of the State of Maryland. The inspector warned the operator of the violation and instructed him to obtain a current trader’s license by January 13, 2015. The inspector returned on January 13, 2015 and found that the business still lacked a valid trader’s license.

Violation of Rule 3.06: Sanitation and Safety – January 6, 2014 – At approximately 11:00 am Inspectors performed inspection of the establishment and found that the corporate entity that owned the business failed to have a registered trader’s license with the Comptroller of the State of Maryland. The inspector warned the operator of the violation and instructed him to obtain a current trader’s license by January 13, 2015. The inspector returned on January 13, 2015 and found that the business still lacked a valid trader’s license.

Liquor Board Inspector John Howard, who has worked for the agency for 10 years, testified that he wrote the report on the January 5, 2015 visit to the establishment. He saw missing bricks and broken floor tiles, and the licensee had an expired trader’s license. Inspector Mark Fosler corroborated the January 5 violations.

Inspector Norris Turnipseed, a Housing department code enforcement official, testified that he has been doing inspections to enforce building and fire codes for eight years. He also has a role with CHAP, the Commission for Historic and Architectural Preservation. Inspector Turnipseed testified that he had issued a violation notice about a side door of the building painted without CHAP approval, a broken window, and illegal signage. The notice was sent to the owner and posted on the property itself. Since that first violation was issued, there has been little or no abatement of the violations. The side windows are cracked and boarded up. There is illegal alcohol signage pressed up against the front window; alcohol signage, by law, must be at least 12 inches from the window of the building. There were exterior lights installed without CHAP approval. There is a hole in the side wall of the building, with wires running through it. There are bricks missing from the facade and there is peeling paint around the entrance.

The licensee testified that he has been the licensee at the store for over fifteen years. The illegal signs have been there the entire time, and he did not know they were breaking the law. Mr. Turnipseed said that the licensee had been notified that the signage was improper.

Turnipseed emphasized that none of the violations have been abated at all. Work has been started on the door paint and fixing the bricks, but it looks like the licensee had tried to fix the missing bricks with cement. He also did not get permission from CHAP to repaint the door.

Mr. Akras asked the Board to drop the fourth charge against the licensee but to keep the first three.

Commissioner Moore said that there were a lot of violations, which all pertain to the building itself, only part of which is used as a liquor store. She asked Mr. Turnipseed and Mr. Akras which violations the licensee should be held accountable for. Akras and Turnipseed clarified that the licensee was only being charged with the violations that apply to the part of the building where his business is located, on the first floor. Turnipseed said that the licensee and the building owner had been passing the blame back and forth between them.

Licensee Alexander Wolde testified that the property has been owned by different owners in the twelve years he has had the business there. Wolde told the Commissioners, “when there’s a problem with the property, we’re not responsible.” Wolde has been trying to buy the property for eight months, but it was in foreclosure, so it has been tied up with legal issues.

Looking at the exhibits presented, Chairman Ward said that the pictures show that the bar is a mess and is not up to the standards of a historic district. Moore agreed and said that, in his twelve years as a licensee, he should have figured out what the community expects.

A neighbor testified that he has been one of the people complaining about this bar. He said that the establishment’s poor condition made it difficult for him when he was trying to sell his home. Mr. Steven Johnson, chair of the Liquor Committee of the Mount Vernon Belvedere Association, testified also that the place was not in compliance with the law.

Jones added that he also thought the $1,000 fine is a bit light.

Mr. Smith had made two preliminary motions to the Board. The first, which had already been dismissed, was an FMLA (Family and Medical Leave Act) claim. Smith told the Commissioners that his client had originally hired a different attorney to represent him who was eight months pregnant; she was having a health problem which required her to go to the hospital, and she could not represent Mr. An. The commissioners did not think that the FMLA applied to this situation.

Mr. Smith then made a second request, that the hearing be postponed until the Liquor Board could provide a certified Korean-to-English interpreter, because Mr. An does not speak English. Chairman Ward said that it would be Mr. An’s responsibility to find and bring with him an interpreter, if he needs one. Ward said that it is the licensee’s responsibility to understand and comply with the laws. If An doesn’t come prepared to the next scheduled hearing, he will be in violation of his privilege to do business, and the Board will take his license away. Mr. Smith then asked that Ward recuse himself from the future case.

There were several representatives of the organization KAGRO present; when the Chairman asked if anyone in the room spoke English and Korean, at least one person raised his hand. When Mr. Akras called the person forward to translate, he refused.

Moore pointed out that Mr. An had appeared in August 2014, and someone from the audience had provided informal translation for him. Moore said that the Board has done this several times and have had no problems. She asked whether the other licensee, Patrick Min, who was not present, speaks English, and Mr. Smith did not know. Moore also pointed out that, in court, a request for a translator must be filed ten days before a hearing.

The hearing was rescheduled for the following Thursday at 1:00pm.

Violation of Rule 4.16: Narcotic Drugs– January 12, 2015 – At approximately 5:00 pm, Chief Inspector Shelton Jones responded to the establishment due to several complaints of loitering and drug dealing inside and outside of the bar. Upon arrival Jones observed numerous individuals loitering outside of the bar. Once inside Jones observed individuals loitering and drinking alcoholic beverages within the package goods area of the establishment. While there Jones observed an individual enter the package goods area of the establishment , extract a bag of what Jones believed to be contained with controlled dangerous substances, and then begin announce that he was selling. Jones observed numerous transactions and furthermore observed that the owner/licensee was standing at the front of the counter while the transactions – which were approximately two feet away from the owner – were ongoing. The owner/licensee did nothing. At this point, Jones announced his presence and cleared the area of the activity.

Violation of Rule 3.12: Public Welfare– January 12, 2015 – At approximately 5:00 pm, Chief Inspector Shelton Jones responded to the establishment due to several complaints of loitering and drug dealing inside and outside of the bar. Upon arrival Jones observed numerous individuals loitering outside of the bar. Once inside Jones observed individuals loitering and drinking alcoholic beverages within the package goods area of the establishment. While there Jones observed an individual enter the package goods area of the establishment , extract a bag of what Jones believed to be contained with controlled dangerous substances, and then begin announce that he was selling. Jones observed numerous transactions and furthermore observed that the owner/licensee was standing at the front of the counter while the transactions – which were approximately two feet away from the owner – were ongoing. The owner/licensee did nothing. At this point, Jones announced his presence and cleared the area of the activity.

Violation of Rule 4.19: Storage– January 14, 2015 – At approximately 11:45 am, Inspector Karanikolis responded to the establishment to follow-up on prior safety and sanitation violations concerning the bathroom facilities. While there, Inspector Karanikolis observed numerous boxes of stock (containing alcoholic beverages for sale) on the floor area behind the counter for sale of the packaged goods area. Inspector Karanikolis informed the licensee/owner that he could not have stock stored in this manner, as it had to be on a pallet or elevated from the floor.

Violation of Rule 3.06: Sanitation and Safety – January 14, 2015 – At approximately 11:45 am, Inspector Karanikolis responded to the establishment to follow-up on prior safety and sanitation violations concerning the bathroom facilities. While there, Inspector Karanikolis observed numerous boxes of stock (containing alcoholic beverages for sale) on the floor area behind the counter for sale of the packaged goods area. Inspector Karanikolis informed the licensee/owner that he could not have stock stored in this manner, as it presented a safety and sanitation infraction

Liquor Board Chief Inspector Shelton Jones testified that he served for twenty-two years in the Baltimore City Police Department in various units, including homicide, vice, and narcotics. Mr. Akras asked the Board to qualify Mr. Jones as an expert witness; Fogleman objected, because Jones has not had articles published in relevant periodicals and he does not take continuing education courses. Fogleman argued that Mr. Jones is an eyewitness to the incident but is not an expert. Chairman Ward told Fogleman that Jones easily qualifies as an expert witness in drug identification.

Jones testified about the incident in question, on January 12, 2015. In response to community complaints, Jones entered the store in plainclothes and waited for a few minutes. Some of the patrons were drinking alcoholic beverages sold as package goods out of paper bags. A man with dreadlocks entered the bar, and a Caucasian man followed directly behind him. The man with dreadlocks pulled a bag out of his pants with a white hard rock-like substance in a clear plastic bag, and “he then [advertised] what he [had].” Akras asked Jones how many times, in his experience, he has seen drugs packaged in this way; Jones replied, “hundreds of times.” The man selling drugs told the person who came in behind him to “watch the door.” Jones looked at the man and told him that he shouldn’t be doing what he is doing and that Jones could have him arrested. Then everyone cleared out of the bar. The owner of the bar was in the doorway, going back and forth behind the counter, watching the whole situation occur. Jones said that the owner couldn’t even really see what was happening in the store from behind the glass and the counter, because there was so much merchandise pinned up. Jones said that he couldn’t really see what was going on and wasn’t paying attention. According to Jones, the owner just let people do whatever they wanted to do, because he was protected behind the glass and didn’t have to come out.

Mr. Fogleman pointed out that that the BD-7 license means that the establishment is a tavern and people are allowed to drink in a tavern. Jones clarified that the people drinking out of the cans and bottles in plastic bags were walking in and out of the premises, out onto the street, where open containers of alcohol are illegal.

Fogleman, on cross-examination, asked Jones where the complaint from this bar originated. Akras objected, on the grounds of relevance, and Ward sustained the objection. Fogleman asked Jones why he didn’t call the police, and Jones said that the man had already left. Fogleman asked how many man-hours had been spent investigating this bar since Jones has been Chief Inspector. Akras objected again, on the same grounds of relevance, and his objection was sustained. Fogleman argued to the Board that his questions were relevant, because the Baltimore Sun recently published an article in which the agency admitted to never having inspected the Horseshoe Casino. The former Chairman asked why there was such an incredible amount of resources being devoted to small bars like his client’s; he told the commissioners that the “new” Board has only been in session for seven months and his client had been before the Board twice. Ward replied that the agency had begun a new anonymous complaint system, and people had been submitting complaints through that system, which the inspectors had followed up on. Ward concluded by saying, “so, Mr. Fogleman, if you have any complaints about bars, we’d be happy to hear from you” and we “promise we won’t tell.”

Fogleman asked Jones, “you used to write more complete and thorough reports when you used to come before this Board?” Akras’s objection was sustained. Fogleman then objected to Jones’ conclusions in the report that “the licensee has lost control of the business.” Jones replied that, from his position as Chief Inspector, this bar has been a consistent problem. Neighbors have been complaining, and he has gone to a community meeting to address that bar. Jones was unsure how many 311 complaints had come in about the bar. Fogleman asked whether it was just one complaint; Jones did not know. Fogleman asked whether it was true that there are other bars that have 311 complaints about them almost every day. The question was dismissed as irrelevant.

Liquor Board Inspector Tom Karanikolis was called to testify about the fourth and fifth charges, but the charges had the wrong date on them and were therefore dismissed.

Mr. Fogleman then moved to dismiss the remaining charges, relating to the drug transaction. He brought up previous cases in which the Board dismissed charges of violations of Rule 4.16, because the police officers did not bring lab results from the testing of the substance that the individual was selling. Fogleman provided transcripts of the previous decisions that he was citing. Ward granted Fogleman’s motion to dismiss as to the Rule 4.16 charge.

Fogleman then called Mr. Gary Moore Jr., a patron of the bar who was there during Jones’ visit. Moore said that he often goes to the bar to drink coffee and watch the news. Moore did not see any drug transaction: not the man with dreadlocks, or the white male, or the woman with the open container that Mr. Jones described. All Moore remembered was seeing Mr. Jones.

Mr. Kim, one of the two licensees, then testified that he has, since the previous violation, installed a video camera system worth over $8,000. He can now tell loiterers to move along through a speaker system. There are signs up in and around his property which say that drug dealing and loitering will not be tolerated. Mr. Kim provided a video of four other video screens showing different angles of the incident in question. The original footage is gone. Jones said that Mr. Kim is only showing the angles that he wants the Board to see, because they are the angles that only show Jones and don’t show the corner where the man was selling drugs. Mr. Kim had many cameras shooting many angles, and he only chose four of those to show to the Board. Kim told the Board that he did not leave out any video showing a drug deal, but when he pointed to the man with the dreadlocks in the video, Kim referred to that man as “the drug dealer.” Kim said that there is nothing more he can do to comply with the laws and that he will continue to be diligent to fight crime. Fogleman submitted a photograph of many loiterers outside the bar across the street during the time that the Chief Inspector was inside B & O.

In the penalty phase of the hearing, three community members and one police officer testified that there is a serious crime and drug problem at this corner, between the two bars that are across the street from each other. There is a nearby methadone clinic that attracts drug users and sellers to the area. The first neighbor was particularly horrified that Mr. Fogleman had publicly stated her name and the block where she lives earlier in the hearing, because she was afraid to testify at all due to potential threats to her safety. The neighbor said that it is a free for all at this corner. There aren’t 311 calls because the neighbors call 911 directly. She said that she was not attacking the owners of the bar directly, but the corner she walks by every day is just not safe. Trying to get the area cleaned up, according to this neighbor, is a full time job and “enough is enough.” Two other neighbors echoed her concerns, including a representative from Hollins Roundhouse community association. They said that the bar is a disgrace and should have been shut down a long time ago. The community relations police officer from the Southern District provided a list of 89 911 calls between January 2, 2014 and the present, listing the specific address of the bar. Ward looked at the calls and said to Fogleman, that these calls started when he was the chairman of the Board; Ward asked, “why didn’t you do anything about it?”

Fogleman reminded the Chairman that he left the Board in April 2014, so there was only an overlap of a few months. He also told the Commissioners that the Board already imposed a penalty on this licensee in October 2014. He said that his clients have done everything they possibly can to improve the situation. He submitted a letter from KAGRO, the Korean-American Grocers and Licensed Beverage Association of Maryland, Inc., in support of the licensee. He suggested that Mr. Kim give his phone number to any community member who wants it, because “communication is everything.”

Commissioner Moore reminded the licensee that, at his last violation hearing, he had almost cried and had begged the commissioners to be lenient. Moore told Kim that it is not fair for these community members to have to live the way the witnesses describe. Moore was offended that the video of the four video screens was extremely selective, since Kim installed thirteen cameras. Moore said that there was great manipulation in what was presented. She said that even though the Chairman had dismissed the Rule 4.16 drug violation, that violation is not dismissed in the lives of the people who have to walk those streets. She also noticed that the man who had refused to help in translating in the prior case had laughed and left the building when the drug charge was dismissed. Moore noted that Fogleman knows that being a Liquor Board commissioner is a difficult, sad job. Moore ended by saying that she will be sending out inspectors again to make more reports. Jones agreed with Commissioner Moore.

There is no legal requirement that the police have seized and tested drugs in order for the Liquor Board to hold a licensee responsible for a violation of Rule 4.16. If the Board had enough evidence to find the licensee responsible for a Rule 4.18 charge (illegal activity, which in this case was illegal drug transactions), the Commissioners had enough evidence to find him responsible for a violation of Rule 4.16, under a “preponderance of the evidence” standard.