Attorney Claims Alleged Alcohol Violation At The Port And Ember Are Unfounded

By: William F. Galvin

Topics: Business

Harwich town seal.

HARWICH — The attorney for The Port and Ember restaurants in Harwich Port has asked the town to preserve evidence and produce records relating to alleged violations of the state Alcoholic Beverage Control Commission’s advisory regarding the sale of beer and wine and on-premise consumption during the COVID-19 pandemic.

Attorney Raymond Tomlinson, representing the restaurants, said in his notice to the town that the alleged violations as detailed in a police report filed with selectmen are “unfounded.” Town officials continue to exhibit bias toward the two restaurants and preserving documents is “potentially relevant to a forthcoming lawsuit,” he wrote.

The police report filed by Deputy Police Chief Kevin Considine on May 28 was in response to a complaint on May 22 at The Port about guests allegedly standing around on the premises drinking. Similar violations were observed by an officer at Ember the same day. On May 24 another complaint about patrons at Ember allegedly drinking on the patio was confirmed by an officer, according to the report. Tomlinson said The Port and Ember are separate corporate entities and lumping together alleged violations “is entirely inappropriate.”

The ABCC advisory states in part, “That all on-premises consumption licensees remain prohibited from selling alcohol for on-premises consumption to the public until June 8 at the earliest, awaiting further notice from the Governor.”

Two weeks ago selectmen appointed Interim Town Administrator Joseph Powers to serve as hearing office for the alleged violations.

Tomlinson initially took issue with the police report, which cited a total of five violations from May 22 to May 24. Two of the incidents, including one of live music, were found not to be valid. Only two incident reports were filed with selectmen.

“Yet each alleged ‘violation,’ including unfounded ‘violations’ was reported to the board of selectmen for discipline without notice to The Port or Ember — after Health Director Meggan Eldredge on May 27, 2020 confirmed that no actual violation of the ABCC advisory occurred at The Port (as reported by Officer Neil Nolan for Incident 20-5518) and that Incident No. 20-5519 warranted only a ‘warning’ because the patron’s alleged on-premises consumption was contrary to Ember’s directive (that patrons not consume food or drink on the premises) and where Officer Nolan was aware that Ember’s skeletal staff did not witness the alleged violation,” Tomlinson claimed.

Nolan’s incident report relating to The Port read, “A male subject was drinking from a brown bottle that I observed to be a Budweiser beer.” He further reported seeing a number of Bud Light bottles. Tomlinson wrote that the health director confirmed, contrary to Nolan’s narratives, that neither The Port or Ember possess or sell Budweiser or other bottled beer.

“In truth, and consistent with the ABCC advisory, both The Port and Ember sell only canned beer and bottled wine. In fact, the beer distributor will testify that months ago, the distributor recovered all beer bottles from both establishments as beyond the applicable sell-by date,” Tomlinson wrote.

He added that he wanted to raise concerns with the board on June 1, the evening Powers was appointed as the hearing officer, but in the virtual public hearing he was repeatedly denied any ability to join or participate.

The pandemic has created difficult challenges for licensees, Tomlinson said. At a meeting two weeks ago between town officials and restaurant owners, in preparation for outdoor serving with the beginning of phase two for Reopening Massachusetts, there was confusion among those present. Tomlinson said that is why the health director is recommending an “educate and warn” approach to licensed establishments.

Police have responded to similar allegations of violations of the advisory for which Eldredge has fined at least one of the licensed establishments, yet none of these establishments have been referred to the selectmen to consider public discipline, Tomlinson said.

“The health department has not issued any fines to any food establishments in regard to non-compliance with the Governor’s orders surrounding the current state of emergency,” Eldredge said in an email. “Additionally, the health department does not issue fines for liquor license violations. I cannot comment on the letter sent from attorney Tomlinson at this time as it is an open legal matter.”

“Certainly, one takeaway is that Deputy Chief Considine and certain members of the board of selectmen, including Michael MacAskill, continue to exhibit bias toward The Port and Ember,” Tomlinson wrote, “and the push for discipline over these alleged ‘violations’ is a blatant attempt to advance a personal biased agenda (the ‘Claim) that ignores the health director’s determination that no violation occurred at The Port, and Ember’s violation’ merited only a warning.

“By abusing their color of authority, these individuals seek to improperly influence the public process by initiating and publicly shaming The Port and Ember, which will not be tolerated,” he wrote. Each of the companies is being forced to expend tremendous resources during already difficult times to investigate and respond to the alleged violations, he added. Over Memorial Day weekend, sales at The Port and Ember were down 98 percent over last year with total alcohol sales at Ember $130 on May 24, he said.

“This is hardly ‘business as usual.” Tomlinson stated.