State Investigators Allege Safety Standard Violations At The Port

By: William F. Galvin

Harwich news.

HARWICH — A report by state Alcoholic Beverage Control Commission investigators alleges the Port Restaurant and Bar violated several safety standards under the emergency order the commonwealth has in place to combat the COVID-19 pandemic.

This is the second alleged violation of emergency regulations by The Port. Attorney Raymond Tomlinson said the restaurant is being targeted.

“There is plainly a push in the town to target The Port and by association Ember Pizza,” Tomlinson said. Both restaurants are owned by the Brackett family.

The report has been submitted to ABCC Chief Investigator Frederick Mahoney, and the board of selectmen on Monday night designated Interim Town Administrator Joseph Powers as the board’s representative for a hearing on the alleged violations.

Judd Brackett, an owner of the restaurant, disputes the report. He said there are inaccuracies and incorrect statements contained in the document, and he questioned investigators' familiarity with regulations; he said the report alleges safety standards in phase two of the commonwealth’s re-opening plan, but the investigation was conducted in mid-July when phase three of the plan had been implemented.

Brackett said the restaurant has not received official notice of the report, which he said appears to be an internal document between two ABCC investigators. He said it is unclear if the report is a formal violation letter, since it is not addressed to anyone in the town of Harwich.

He said his sense is The Port is being picked on; . The three ABCC investigators spent between four and five hours over two nights in the restaurant and made no other establishment visits while in town, he said.

Tomlinson said there appears to be a rush to judgment on a successful operation that has publicly challenge what appear to be “biased and selective enforcement of unsubstantiated violations in an already difficult time, and it’s contrary to the statement by the board of selectmen to support local businesses.”

According to the report, ABCC investigators Nicole Smith, Jamie Binienda and Christopher Temple arrived at the restaurant on Thursday, July 16 at about 9 p.m. to investigate a complaint. They inquired as to how late the restaurant would be serving food and were told the kitchen closed at 10 p.m. They returned at approximately 11 p.m. and allegedly observed individuals seated or standing at two outdoor bar locations and an outdoor area with Adirondack chairs. The individuals were consuming what appeared to be alcoholic beverages, but the investigators did not observe any indication of food service, according to the report, an apparent violation of the emergency safety standards.

Binienda informed the manager the restaurant should be complying with phase two safety standards and following distancing requirements. The manager informed the investigators the restaurant offers slices of pizza to guests that remain when the kitchen closes. Binienda responded that safety standards require restaurants to serve alcoholic beverages only to customers that order food for seated dining. The manager indicated he would make changes to ensure compliance, according to the report.

Brackett said The Port serves dinner until 10 p.m. and kitchen staff continue to serve an abbreviated menu, including a dessert menu and oysters and shrimp, throughout the night. In presentations by Health Department Director Meggan Eldredge, Brackett said restaurant owners were told they have to provide food service, but the regulations do not require people to purchase food.

Brackett said he sent a letter to Eldredge on Tuesday addressing the report and detailing a number of inaccuracies in it.

The following evening Smith and Binienda returned around 9 p.m. and observed at least 25 individuals walking throughout the premises without facial coverings, according to the report. They did not observe any Port staff taking corrective action.

They also observed several people without facial covering playing a ring and hook game. The report alleges that is a violation of the standards because areas not used for food and beverage service are to be closed. They also observed two tables with seven customers where standards limit tables of that size to six.

That's inaccurate, said Brackett. “We were able to document based on accepted reservations and the number of guests entered when a check is started that no parties exceeded six on July 17 at any time,” he said.

The investigators observed at least six tables in the outdoor area where individuals were consuming what appeared to be alcoholic beverages without ordering or consuming food. At about 10:30 p.m. a vehicle delivered several boxes of pizza to the premises. The manager told the investigator the pizza came from Ember Pizza. Brackett said that was correct.

“At approximately 11:30 p.m. Binienda advised the manager of our observation. He responded that he has been trying to remind customers to wear a mask and then stated ‘People get drunk and stupid, well, not over-served, but drunk and stupid and forget’,” according to the report.

“Smith pointed out to the manager several customers were walking around without facial coverings; to which he responded, ‘if I wasn’t talking to you, I would be telling them to wear their masks.’ Smith also pointed out a table of six individuals where at least four other individuals without facial covering stopped to engage in conversation and the waitress did not take any corrective action,” the report reads.

“There is not a mention of a single staff member not wearing a mask,” Brackett said. “We’re doing our part.”

The Port has had one employee infected with the virus, causing the restaurant to close for a 24-hour period in July to do extensive cleaning and disinfecting before reopening.

Powers reminded selectmen Monday night The Port has a prior alleged violation of the ABCC COVID-19 regulations dating back to May 22 when people were observed drinking beer on at the restaurant while the sale of beer and wine for consumption on premises was prohibited. Powers said he would combine the two incidents in one hearing.

Tomlinson has called the May 22 incident “unfounded.


Two Harwich Port Restaurants Get Entertainment Suspensions

HARWICH – More than a year after noise violation complaints were filed about the Ember Pizza and Perks restaurants, selectmen Monday upheld Interim Town Administrator Joseph Powers' decision to suspend both establishments' entertainment licenses.

Ember will have its entertainment license revoked for a week, while Perks will have a one-day suspension.

On Monday night Powers issued his findings from hearings in the two cases. The first hearing was held Feb. 27 on alleged violations of the entertainment license at Ember, located on the corner of Route 28 and Bank Street, and the second on June 30 on an alleged violation at Perks in the center of Harwich Port.

The Ember complaints involve live music being plainly audible beyond 150 feet on July 28, July 31 and Oct. 5, 2019. In his finding, Powers said there were seven offenses at Ember in 2019, including an initial written warning.

Powers recommended selectmen impose a seven-day suspension of all entertainment at Ember, both indoors and outdoors, on successive days. At the request for leniency at the hearing from Ember’s former attorney, Matthew Kelley, Powers said the seven-day suspension period can be chosen by the licensee but must be served before Sept. 14, 2020.

Powers reported receiving an email from Ember's new attorney, Raymond Tomlinson, just before the start of Monday’s meeting, challenging the lack of procedure and due process. Given the timing of the arrival of the email, and the inability for selectmen to review it, the decision was made not to read it into the record.

Perks received a warning of music plainly audible beyond 150 feet on July 4, 2019 and a citation was issued for violation of its entertainment license on Sept. 1. Perks received a one-day suspension of the entertainment license in 2017 and five violations were reported there between 2016 and 2018.

Powers recommended selectmen issue a one-day suspension of all entertainment, both indoors and outdoors, at Perks on a day of the licensee’s choosing to be served prior to Sept. 14.

Selectmen affirmed Powers' findings.