HARWICH — After a three-and-a-half hour hearing filled with legal wrangling and objections, selectmen Monday night granted Ember Pizza’s seasonal liquor license and a modified annual entertainment license.
The board was also scheduled on Monday to take action on the seasonal liquor and entertainment licenses for The Port Restaurant and Bar, as well as conduct a public hearing on alleged violations of the Commonwealth’s COVID-19 State of Emergency guidelines. Due to the length of the Ember Pizza hearing, however, the Port hearing was continued to Tuesday, May 4 at 5:30 p.m.
Selectmen voted Monday night to issue a written warning to Ember Pizza owners Justin Brackett and Jared Brackett for one violation of provisions of the COVID-19 State of Emergency guidelines.
Ember employee Paula Ribeiro said she was the employee standing at the bar and her duty was to greet people who were coming in for take-out orders and bring them their meals. Ribeiro said she placed to-go drinks, beers, in bags for off-premises consumption. “There were not people standing outside, congregating and drinking,” she said.
Selectman Michael MacAskill said he sympathizes with the business having to deal with the pandemic and said he was moved by Ribeiro’s testimony relative to the incident and was not willing to punish Ember with anything but a warning. MacAskill added he also was not willing to take away their liquor license.
The incident occurred on May 22, when police officer Neil Nolan observed numerous individuals congregating on the outdoor patio drinking from open containers at the establishment while there appeared to be a full-service bar in operation in violation of Gov. Charlie Baker’s orders prohibiting on-premises consumption of alcohol.
The Bracketts are owners of both Ember Pizza and The Port Restaurant and the selectmen’s inaction on the seasonal all-alcoholic beverage and entertainment licenses for both establishments have brought legal challenges.
Attorney Raymond Tomlinson, representing the Bracketts, and attorney John Davis, representing the town’s insurance company, appeared before Judge Denise Casper in federal court in Boston on Thursday. The Bracketts filed a civil suit against the town seeking a declaratory judgment that the town’s noise bylaw violates the owners' constitutional rights and further impacts other licenses issued by the town.
The judge took the emergency motion for a temporary order for preliminary and permanent injunctions under advisement. Additional legal briefs were requested by Judge Casper regarding the court’s jurisdiction to hear the lawsuit.
A second lawsuit was filed in Barnstable Superior Court by the Bracketts charging selectmen with deliberately delaying renewing the two establishments’ liquor and entertainment licenses. A hearing scheduled for Tuesday was postponed until May 5, the day after selectmen are scheduled to conduct the hearing on The Port Restaurant’s seasonal liquor and entertainment licenses.
The atmosphere in the Ember Pizza hearing on Monday was more like a court room than a typical selectmen’s public hearing, with town counsel Jeffrey Blake and attorney William Kelley, a former state Alcoholic Beverage Control Commission general counsel representing the Bracketts, going head to head on procedural issues.
A continued legal challenge during the hearing focused on the eight criteria related to noise, traffic, size, sort of operation and reputation of the applicant that selectmen can apply when issuing a liquor license. Kelley argued under state law the criteria can only be applied to requests for new licenses and not renewals of existing licenses.
As many as 97 people viewed the hearing remotely but only a few spoke in opposition, and the focus was mainly on the entertainment license. Pleasant Street resident Bob Cohn, a member of the ad hoc noise containment committee who said he was speaking not as a member of the committee, presented an informal noise survey which he said showed multiple noise violations he contended were emanating from Ember in 2019. The town noise bylaw sets a 150-foot maximum distance for sound to be audible.
Cohn's survey alleged that sound registered well beyond 350 feet and up to 1,200 feet from Ember. He said eight times music was recorded from 1,200 feet away, and referring to The Port Restaurant and Ember, Cohn said excessive noise could be heard on almost 40 nights last summer.
Towhee Lane resident Frances Rich said she lives outside Cohn’s circles and when she’s sat outside she could sing along with Ember’s music. Freeman Street resident Michael Heffernan said he could listen to Ember’s music every night.
Robert Nickerson said a lot of people did not want to speak at the hearing for fear of being harassed. He said the crowd noise is getting worse at Ember. He did not want to see the entertainment license issued without limitations.
Lucie Brackett expressed disappointment in the way the town has been treating the two restaurants. She said a lot of time, money and sacrifice has been put into into the town and the restaurants, and it was bothersome to see that hard work disrespected. She said there are many people who complement them for their efforts, but there are people who are “dragging our businesses through the mud and they should at least have the details correct.”
A couple of people said they sent emails to the selectmen in support of both The Port Restaurant and Ember Pizza praising the operations but said their comments, as Sea Street residents, were more focused on The Port Restaurant.
Jake Domos said he has worked for the Bracketts for a decade and while he used to be a bartender, this past year he has served as the COVID-19 police in the restaurants. He called assertions of the establishments not following protocols “so wrong.”
Selectman Ed McManus agreed there are noise issues, but he said “it doesn’t rise to the point of denial of the license.”
Board members agreed there should be modifications to Ember's entertainment license. They voted to allow outside entertainment from 6 to 10 p.m. weekdays and Sundays with acoustic music only, no amplification. Music is allowed inside from 10 a.m. to midnight on weekdays and Sundays.