HARWICH — The attorney for two Harwich Port restaurants sparred with town officials and state investigators over alleged violations of COVID-19 emergency regulations during liquor license hearings last week.
The hearings held by Interim Town Administrator Joseph Powers on alleged liquor license violations at Ember Pizza and The Port restaurants reached no conclusions after problems with remote participation caused the proceedings to be cut short.
Both restaurants were before Powers Aug. 12 for show cause hearings related to alleged liquor violations associated with a state Alcoholic Beverage Control Commission advisory put in place under Gov. Charlie Baker’s emergency declaration in response to the coronavirus pandemic. Both were charged by police in May with allowing consumption of alcohol on the premises when, at the time, liquor was only allowed to be sold for off-site consumption. By July the rules had changed, allowing alcohol consumption but only with food service. The ABCC alleged that The Port had served alcohol without food.
The police department reported complaints against both establishments on May 22 and May 24. But attorney Raymond Tomlinson, representing Justin and Jared Brackett, owners of the two restaurants, challenged the allegations and contended that the restaurants were being sent mixed messages.
Because of communications failure among the participants, Powers made the decision to continue the Ember Pizza hearing after two hours to a future date to be agreed upon by the parties involved. After a lot of back and forth between Powers and Tomlinson over the hearing process and equipment failure, Powers pulled the plug on The Port hearing two and a half hours into the session.
For the Ember Pizza hearing Wednesday morning, Powers and town counsel Gregg Corbo of KP Law were in the hearing room in town hall while members of the police department, Tomlinson and the owners of the restaurants were participating remotely through GoToMeeting.
Patrol supervisor Neil Nolan testified that he responded to a COVID-19 violation complaint around 7 p.m. on May 22 and observed from his vehicle two individuals standing around the outside fire pit at Ember, each drinking a canned beverage. When Nolan approached the manager he was told the individuals were drinking Bud Light Seltzer. The manager said the restaurant was not selling that brand, only sealed containers to go, Nolan said.
Tomlinson said the restaurant did not have Bud Light Seltzer at that time, indicating the alcohol being consumed could have been purchased elsewhere and brought to the restaurant. Nolan also stated in his report that the bar was stocked and a staff member was serving drinks. The officer said there were eight to 12 people on the patio at the time.
Powers wanted to hear from the manager, but he was not part of the remote contingent. Powers said he was “hoping to hear from all the relevant people today.” Tomlinson took exception, stating that there was no request by the town for anyone from Ember to be present.
“The manager speaks to the police, he’s part of the public record, he should be here,” Powers responded.
“There was no request for the manager to be here, it’s inappropriate to blame my client,” Tomlinson responded. An effort to reach manager Sean McMahon by phone was unsuccessful.
Corbo asked if the people on the patio were wearing masks. Tomlinson took exception to that, stating there were no issues raised in the police report about wearing masks.
“This is about violations of the Governor’s order with respect to this premises and it’s my position it’s not limited to just the service of alcohol,” said Corbo. “It’s any violation of the COVID-19 order.”
Problems with the online audio were raised and Powers said he did not want faulty audio to be used as part of the proceedings. Corbo agreed and the decision was made to continue the hearing to a date to be worked out among the parties. Nolan did not finish his testimony nor was a second complaint of patrons drinking on the patio on May 24 heard.
The Port show cause hearing that afternoon immediately got bogged down in the listing of exhibits to be included and referenced during the discussion. The alleged liquor violations at The Port occurred on May 22 and May 24, and Tomlinson objected to the inclusion of several exhibits that were approved by the commonwealth and post-dated for the time of the alleged violations. The documents were non-binding and could not be used in any of the findings Tomlinson. Powers noted the attorney’s objection.
Corbo responded that the exhibits relate to the state Alcoholic Beverage Control Commission’s report of the violations resulting from investigations the agency made on July 16 and 17 at The Port. Tomlinson raised notification issues about the ABCC investigation report, referring to a letter from the town received by owner Justin Brackett on July 29 that was not approved by the selectmen until Aug. 3. Tomlinson also said the ABCC report was received just minutes before the hearing started.
Tomlinson questioned whether town counsel was representing both the town and the ABCC in the hearing. ABCC attorney Kyle Gill, participating remotely, said the ABCC was not prosecuting this case, pointing out state law forbids both the selectmen and the ABCC from taking actions on a violation.
ABCC investigator Jamie Binienda was sworn in to testify about violations he and two additional investigators observed on July 16 and July 17 visits to The Port. Binienda said he received a call from Police Chief David Guillemette on July 14 about liquor violations his department has been receiving about Harwich Port establishments.
“We visited every liquor establishment in Harwich Port both evenings, undercover and overtly,” Binienda said.
He detailed several issues described in the report, including people drinking alcohol and not consuming food. The investigators were told the kitchen closed at 10 p.m., and when they returned at 11 p.m., they observed people sitting and standing around consuming what appeared to be alcoholic beverages. When the food issue was raised, the manager said slices of pizza were offered to the guests. It was pointed out that the pizza was delivered from Ember.
“You can’t have people there just consuming alcohol,” Binienda said. “The food is supposed to be made on site.”
He said on July 17, 25 individuals were observed walking throughout the restaurant without face masks, and at one point there were two tables with gatherings of greater than six people. Staff took no corrective action, he said.
“Were you targeting any one establishment in particular?” Corbo asked.
“We do not target establishments. We’re there because of an uptick in calls,” responded Binienda.
Tomlinson questioned why the investigators only visited Harwich Port. Binienda said earlier in the evening they had been to both Brax and The Lanyard as well as the other establishment in Harwich Port. Tomlinson asked if the chief mentioned any establishments by name; Binienda said he did not.
The Port’s attorney said the health department has told the restaurants it is permissible to drink alcohol as long as food is available to order, but Binienda said it is mandatory to provide dining services. Tomlinson responded there is “no expressed prohibition.”
Gill objected to the line of questioning, saying it was getting into interpretation of the law. Powers concurred, saying Tomlinson's line of questioning had gone astray and requesting that he address the facts of the report.
Tomlinson said he was not able to hear Powers. Powers suggested the attorney review the tape later. Tomlinson objected to that recommendation, and said he could hear everyone else except Powers. Powers said he and town counsel were using the same equipment. Powers and Tomlinson traded accusations on whose equipment was responsible for the audio problem.
Powers then made the determination to postpone the hearing to a future date agreed to by the parties. Powers thanked Binienda for his professionalism and told him he would not have to be present for the future session. Tomlinson objected to the dismissal of the ABCC investigator before the full conclusion of the hearing.