Board of Selectmen
Minutes
December 9, 2008
Timothy A. Clark Peter E. Warren
Lucy B. Wallace Leo F. Blair Ronald V. Ricci
FRUITLANDS LIQUOR/ENTERTAINMENT LICENSE PUBLIC HEARING
The meeting was called to order at 7:00pm by Chair, Leo Blair, in the Town Hall Meeting Room.
The Board of Selectmen, Peter E. Warren, Timothy A. Clark, Leo F. Blair, Ronald V. Ricci and Lucy B. Wallace, the Town Administrator, Timothy P. Bragan, as well as the Executive Assistant, Ashley J. Butler, were all in attendance for the Fruitlands Liquor and Entertainment License Public Hearing. Please find the attached attendance list as Appendix A.*
Chairman, Leo Blair, opened the hearing by reading aloud the advertisement published in the Harvard Press as well as explaining to the public that all abutters had been notified and the receipts of the certified mailings were received. To view Fruitlands Museum’s abutters list and notification letter, please find the attached Appendix B.*
FRUITLANDS LIQUOR REPORT
Tim Firment, CFO of Fruitlands Museum and resident of 77 West Bare Hill Road, began his presentation by introducing the Fruitlands members to the Board. Firment’s opening argument explained that Clara Endicott Sears founded the museum with her own money and built the Tea Room (Fruitlands’ restaurant) in 1935 intended as a community gathering place for townsfolk, he explained that the museum today wishes to carry on that tradition.
Firment then presented the Board with a site map of the museum’s grounds, outlining the area where alcohol would be served and the permitted area in which the beverages may be consumed. He explained that the facility hosts between 60-65 events per year with an average of 140 people at each in the season of April though October. Firment did elucidate, however, that although their main season is about five months, Fruitlands is applying for an annual license since they are expecting off-season events.
Firment went on to explain that he met with Police Chief Ed Denmark who made several requests; the first that a police detail be present at every event with over 100 guests and second, notification of events so police may patrol the parking lot and surrounding area, both of which are now routine practice. Firment expounded that Fruitlands has been compliant with the Chief’s requests. He told the Board that all employees serving alcohol at Fruitlands must now become TIPS (Training for Intervention Procedures) certified. The program is a skills-based training program that is designed to prevent intoxication, underage drinking and drunk driving. Firment explained
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that he and the restaurant manager are TIPS trained. For more information on the TIPS program, visit: http://www.gettips.com.
Next, Firment explained to the Board that he has sat down with Fire Chief Bob Mignard to discuss his concerns. Fruitlands wanted to know the Chief’s opinion on the exits and the seating capacity in the facility. Mignard explained in a letter to Fruitlands what, exactly they need to complete in order to meet his standard.
Fruitlands has also met with Building and Zoning Enforcement Officer, Gabriel Vellante, who explained the code the buildings need to meet. Firment presented the Board with a seating chart outlining the set up in the Tea Room, he explained that the Tea Room may hold up to 100 guests and the tent has 180 seats. The only modification they are making for Vellante’s request is to connect the Tea Room to the store.
Firment then gave details about his resume, explaining that he has been in the restaurant business for about 30 years and although he does not have experience with alcohol, he considers himself astute and will commit himself to learn the business. Firment added that Fruitlands has liquor liability insurance in place.
Firment explained that Fruitlands’ number one consideration is the neighbors, especially in regards to traffic, hours of operation and noise level. He presented the Board with the prospective hours of operation* which are as follows:
LIQUOR LICENSE
Monday – Saturday 11am – 10pm
Sunday 1pm – 10pm
New Years Eve 11am – 12pm
New Years Day 12pm – 1am
11am – 10pm
*Please find the attached Appendix C
Maud Ayson, Executive Director, presented the Board with a letter of commitment to noise control explaining that noise will never exceed 85 decibels at the source. All musicians/music will be monitored at least a half hour before the event to ensure sound levels. Please find the commitment letter as Appendix D. Firment ended his report by ensuring the Board that Fruitlands strives to be compliant with rules and regulations. He explained that his hope is that Fruitlands can become the community gathering place Clara Endicott Sears set it out to be in 1935.
Leo Blair, Chair, asked Firment to take the Board through the liquor license application as well as Form 43. Fruitlands legal counsel, Donna Truex, of Bowditch and Dewey, LLC, presented the application. She first explained that Form 43 is the approval application that is returned to the state once the Board votes in favor of the license. She explained that Fruitlands is requesting a liquor license for alcohol to be served in the Tea Room and the tent and consumed on said grounds, with Firment as the museum manager. Truex said that Form A is for a new liquor license and provides Firment’s background, a
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criminal background check, contact information, a confirmation of his Harvard residency, a copy of his passport and his resume. She explains that the five-page application provides a general overview of Fruitlands, its museum, its non-profit status and information, and the newly proposed construction. It also delves into the detail of the license, explaining that it is an annual license and that the licensed areas (Tea Room and tent) seat 100 and 180 people respectively. The application also tells that there is no financing necessary. Finally, the application provides a list of all Fruitlands employee contact numbers, the outcome of the vote appointing Tim Firment to obtain the liquor license, the abutters list, bylaws and the seating plan.
BOARD OF SELECTMEN QUESTIONS
Both Lucy Wallace and Ron Ricci declined to ask questions to Fruitlands. However, Tim Clark pointed out that the hours of operations presented at the hearing and those in the addendum to the application are contradicting. Counsel Truex requested the Board amend the addendum to replace the hours of operation in the application with the hours presented at the public hearing. She explained that the hours presented at the hearing are more realistic and achievable than the previous. Clark also brought up the noise control guidelines and questioned the attainability of 85 decibels. He explained that oftentimes the source and intensity of the noise is not the critical factor, but the distance and frequency and what occurs at the property line. He explained that regulations state that noise
levels are measured at property lines. He commented that the noise levels in a neighborhood such a Prospect Hill Road where there is little background noise would be perceived much greater than the same noise level at a property on a major interstate. Clark asked if 85 decibels is realistically attainable. Firment responded, explaining that Fruitlands is open to criticism and will look further into the decibel range, since they are dedicated to their noise commitment. He explained that he received the numbers from Nashoba Winery since their locations and surrounding neighborhoods are similar. Both Wallace and Blair asked Clark to clarify his question and what action he wanted Fruitlands to act upon. He explained that the noise levels should not be measured only at the source, but at property lines as well. Clark requested that Fruitlands seek whatever professional advice is necessary in obtaining the parameters outlined. He wanted to clarify that it is a request and not a
condition of the license.
Peter Warren asked if the site plan had been approved by the Planning Board, Firment explained that it had not yet been approved. Harvard counsel, Mark Lanza explained that the area of prospective licensure should be clearly stated on the site plan and although approval is required for the license, it is not required to hold a public hearing.
Blair pointed out that Section 6 of the application requests the Museum Room, Tea Room, the tent and the grounds within 135 feet are in the license. He asked for counsel to clarify what the museum building was; she explained that it is the restaurant (the Tea Room). He also inquired if the requested area includes the parking lot. Truex
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explains that the prospective area does not allow alcohol sales or consumption in any parking areas.
Lanza pointed out that the site plan provided by Fruitlands shows a small portion of an office building to be included in the licensed area. Firment explained that the building was included by accident and revisions will be made to the plan and presented to the Board at a future date.
PUBLIC COMMUNICATION
The first resident to express his opinion was Chris Tracey, 204 Bolton Road and Zoning Board of Appeals member. He encouraged the Board to look at the application and ensure the proper steps are followed before issuing a license; he also suggested the Board obtain itemized evidence that the applicant has met each criterion of the application so it can be more clearly explained to the public. He explained that there are fundamental elements the applicant must meet in regards to zoning and specific bylaws. Tracey questioned where the licensed stamp from architectural designer, Lindsay Shives, was on the proposed site plan. He told the Board that he was perplexed by the prospective hours of operation presented at this hearing as they vastly differ from the hours presented at the Common Victualler
hearing. Tracey explained that he hopes Fruitlands can run the same as it always has, but has a hard time believing it will with the proposed hours of operation.
Next, Don Green, 90 Oak Hill Road, came to the microphone to express his concerns. He asked Firment if the proposed area for alcohol consumption includes the concert area. Firment confirmed, and explained that patrons cannot bring their own drinks, but must purchase them from Fruitlands. Green encouraged the Board to take into consideration input from related boards as well as concerned Harvard residents. Blair asked Lanza in terms of considering the application, if there was any limit as to what the Board can consider in regards to rulings and findings found by other boards. Lanza explained that in the Fruitlands settlement agreement, it explicitly states that the Board cannot simply adopt other rulings and findings from other boards, but must come to a conclusion on their own.
Next Rhonda Sprague, 160 Prospect Hill Road, Fruitlands abutter, spoke. She asked the Board if they have the authority to restrict alcohol consumption to strictly indoors. Lanza explained that yes, the Board does, indeed have that authority. She expressed her concern for patrons purchasing alcohol and wandering around the museum
grounds. She encouraged the Board to consider the option of restricting consumption to an enclosed area. Wallace asked Firment if the proposed area allowed for serving areas and seating tables to be set up on the grass. Truex explained to the Board that alcohol may only be served within the Tea Room or the tent, no remote station outside of these areas is permitted. However, patrons may purchase drinks at these stations and take them within the permitted grounds. Sprague expanded, saying that she believes the scope of the license is too broad, clarifying that granting the first liquor license applicant an annual license for an entity serving alcohol and holding functions that will be open 365 days per
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year is a large jump from the way it has been run historically. She encouraged the Board to consider issuing a seasonal license. Lanza explained that a seasonal license is not an option, but could consider a beer and wine license. Her concern is that Fruitlands is quickly moving away from what it should embody and becoming mainly a function hall. She expressed her concern for a changing neighborhood, she said that there have already been DUI accidents on Prospect Hill Road with drivers coming from Fruitlands and since the road is heavily traveled by runners, walkers and children, it could be potentially hazardous.
Blair asked Firment to clarify whether Fruitlands would be serving alcohol outside at concerts. Firment explained that no, they will be serving it inside and their intent is that patrons may carry their drink outside to enjoy while they watch the concert. Blair next asked Firment to define the change in the ‘new’ Fruitlands as compared to the ‘old’ Fruitlands. Firment explained that geographically, there will be no change, the hours of operation for the liquor license will not change drastically, they will have extended hours on weekend afternoons; the entertainment license will now allow morning entertainment. He explained that the methodology and business plan of Fruitlands will not change drastically. Blair then asked him about a change in the density of people
on-site and the frequency of events if a license is granted. Firment explained that he does not see anything more changing; Fruitlands hosts approximately 60-65 events per year and suspects that the economy will hurt the business this year. He explained that a license will not change the invitation for people to come to the facility. Blair asked Firment if on open nights, patrons will be able to come to the Tea Room to have dinner and drinks. Firment explained that currently, no, Fruitlands does not have the means to keep it open, and explained that the extended hours are intended only for the purpose of function operations, but does not rule the possibility out completely in the future. Blair asked if they did decide to go forward with a full-time restaurant, would Fruitlands come back to the Board. Firment explained that they first need to prove themselves to the community, but even though it is not on the foreseeable horizon, the idea is not out of the picture, if, in the future
is becomes a possibility, they would, indeed, return to the Board for permission. Ricci asked Firment that since the license is annual, if, in the middle of the year, they chose to pursue a full-time restaurant endeavor would they come back to the Board? Truex explained that once the license is granted, Fruitlands is not required to come back for permission. Wallace explained that specific conditions need to be placed within the license. Blair asked Lanza to clarify what exactly the permitted use is for; Lanza explained that only the function hall and the restaurant are permitted to serve alcohol with 100 seats or more within restricted hours. Warren suggested that if the Tea Room were used for a function, entertainment should be restricted since it barely holds 100 seats and could not support live entertainment and 100 seats as required by the license. Truex explained that entertainment includes everything from a band to a TV to background music so to limit entertainment
completely is not justifiable. Lanza explained that a restriction on what kind of entertainment the Tea Room can hold is permitted and recommended for the license.
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John Williams, 13 Whitman Road and member of Fruitlands board was next to speak. He explained that the reason the Tea Room has 100 seats is to stay within the 100 seat minimum and probably will not be used with that many people on a regular basis. Their point in having 100 seats was to demonstrate compliance.
Clark requested that Fruitlands submit a revised addendum to the application so that there is no question in regards to the request so the Board can be clear on what they are granting.
Don Green, 90 Oak Hill Road, returned to the microphone with a question for Firment. He asked that if families wishing to eat at the Tea Room will be able to eat there while a function is in progress. Firment explained that the two will not be open simultaneously and a function may, indeed, displace Tea Room hours. He went further to say that the Tea Room closes at 4pm and functions do not start until after that time, so there should be no overlap. Clark asked for clarification asking Firment if a function could displace Tea Room hours on a specific day; Firment confirmed. Clark requested from Firment a detailed explanation of exactly how the situation will work, since his statements are contradictory. Truex explained that currently, patrons can bring their own drinks, so this license will
provide more regulation and in turn, safer alcohol consumption.
Chris Tracey, 204 Bolton Road, returned as well. He asked counsel Lanza if the museum is required to be open while the restaurant is open or while events are taking place as defined in the past Fruitlands litigation. Lanza explained that the museum does not have to be open in conjunction with the restaurant.
Diane Newton, 182 Prospect Hill Road and Fruitlands abutter was next to speak. She agrees with Sprague in that she hopes Fruitlands will not become a full-scale restaurant, but went to explain that Fruitlands is a museum first and function hall second, not the other way around. She explained that the only time she notices traffic on the road is during commuter time and does not foresee a liquor license increasing traffic flow on Prospect Hill Road. As far as noise is concerned, she explained that she has never heard Fruitlands at her home and explained that the 200 acres Fruitlands owns provides a lot of protection from noise to the abutters.
Susan Tarrant, 136 Oak Hill Road explained that she does not see this as a slippery slope, but believes Fruitlands is trying to be a good neighbor by having safeguards in place, TIPS and police details, for example. She understands the fears and concerns of Fruitlands neighbors, but thinks that the safeguards will be effective in deterring bad behavior and poor decisions.
Police Chief Ed Denmark was asked by Blair to report his findings. He explained that Fruitlands has been cooperative with the police department. Denmark said that they have complied with requests made by having a detail officer at events with over 100 guests and they have supplied the department with a list of every function so they may increase police patrols in the parking lot and surrounding area. He sees the license as a better measure of control that previously, they did not have over their facility. Denmark explained that there have been some accidents and incidents that were positively correlated with alcohol consumption, but does not fault Fruitlands since they had no
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measure of control. He explained that TIPS is a great program so that bartenders can learn when to shut people off and having a police detail makes it easier to get unruly patrons off the premises. He sees the license as not only a way to control behavior, but should incidents or accidents occur, the function hall will be held responsible. As for license conditions, Denmark requested that any function over 100 must have a police detail with one officer per 100 people. Clark requested that Denmark supply the Board with his conditions for licensure. Lastly, Denmark added that the police department can bear witness to prove that Fruitlands are abiding by the required rules and regulations.
Blair then asked Fire Chief, Bob Mignard to give his report. Mignard explained that according to the Massachusetts General Law, sprinklers are not required since it is strictly a restaurant. With the condition that it will always be strictly a restaurant and never a full-service bar and entertainment will never be offered, and tables and seat will always be arranged in rows with clear pathways will ensure a sprinkler system will not be required. He went on to say that there are seven criteria that are required to make a facility a night club or discothèque, which require sprinkler systems, and Fruitlands does not meet all the criteria. If they decide at some point that they want to change the use to something other than strictly a restaurant, they must come see the Fire Chief, Building
Commissioner, the Board and any other personnel that has jurisdiction over their business. He explained that conditions must be met, but may be as simple as placing a fireman on the premises during events for a fire watch as they do at Bromfield for prom. However, while not required, Mignard recommended in strongest term to put a sprinkler system in the tea room. He explained that the building is old and dry and made completely of wood; he said if there were a fire, it would be catastrophic. His requirements for the license include changing all heat detectors to smoke detectors and a fire alarm pull system at every exit. He then explained that his comments are related strictly to the Tea Room and do not include the tent. Warren explained that in Massachusetts General Law, a tent that stands for over 180 days is defined as a structure. He explained that since Fruitlands is operating from April through October, about 210 days, they surpass the 180-day requirement to be determined a
structure and therefore, being an entertainment venue with over 100 people, a sprinkler system is required. Mignard explained that he agreed with Warren and that was his initial conclusion, but he was going to look further into the law before making a decision. Ricci asked if since the Tea Room will be holding entertainment in the winter, it does require a sprinkler system. Mignard clarified, explaining that even if it does have entertainment, the room still does not meet all seven criteria, but if use changes, a fire watch should be required. Firment explained that Fruitlands has thought about installing a sprinkler system, but the museum is deterred since the cost for such a system is very high. Clark asked Lanza if any of the recommendations from Chief Mignard could become requirements for obtaining a liquor license. Lanza said that all of Mignard’s recommendations are reasonable conditions to be placed on the license.
Building Commissioner, Gabriel Vellante, was next to speak. He explained that when he sat through the zoning hearings, the counsel to Fruitlands explained that the restaurant was an accessory to the museum and that seems to be changing. One of his
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concerns was for neighbors; he explained that when residents live in a quiet area and suddenly more noise is occurring, people tend to file complaints. His explained that the square footage for the Tea Room and although it complies with code, he does not believe it is big enough for panic mode. If there is a fire, there will not be pathways as chairs will
obstruct them. Vellante explained that he has met with the Fire Chief numerous times to discuss Fruitlands and he fully supports the Chief’s letter. Clark asked if there were code issues that the building did not meet or exceed. Vellante explained that yes, there are numerous code violations, but since it has been a restaurant for so long, they are allowed to exist until they make renovations when all codes must be met. He explained that the bathroom facilities are inadequate for their capacity and there are limited handicapped facilities.
On a Wallace/Clark motion, the Board unanimously voted to close the public hearing for the liquor license.
On a Clark/Ricci motion, the Board unanimously voted to request from the applicant, an extension to deliberate the application request with action taken no later than January 20, 2009.
Blair requested a draft for by the Board before any decisions be made.
Entertainment license
Firment then gave the entertainment license report. He explained the hours of operation* are as follows:
ENTERTAINMENT LICENSE
Monday – Thursday 8am – 10pm
Friday – Sunday 8am – 11pm
New Years Eve 8am – 12pm
New Years Day 12pm – 1am
11am – 10pm
Please find Appendix E*
They are requesting permission to provide entertainment in the morning, but reminded the Board of their commitment to 85 decibels. Blair commented that he is troubled that there is no set definition of entertainment especially beginning so early in the morning. Counsel Truex explained that the breadth of entertainment is quite broad and will be difficult to define in exact terms. She went on to explain that restrictions are permitted and may be simpler than defining entertainment. Blair explained that the Board should not define this, but it is Fruitlands responsibility to develop and present to the Board. Counsel Lanza recommended the Board be specific in regards to the definition of entertainment, but it needs to come from the applicant. Clark pointed out that on the application cover; it explains that restrictions can be placed by
aggregate categories.
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Wallace suggested the applicant provide a list of what entertainment they envision early in the morning and the Board can approve that. Blair commented that a list to approve would be a lot easier than a list of what the applicant cannot do. Wallace suggested the hearing be kept open until the Board receives a list of the entertainment the applicant is
imagining at which point the hearing would be closed, a list of conditions would be made for both licenses. Blair asked the applicant if it was important for them to receive the entertainment license concurrently with the liquor license if either is granted. They explained that no, that was not a requirement. Lanza explained that there was no time constraint for either license, so the hearing can be left open.
On a Wallace/Ricci motion, the Board unanimously voted to extend the entertainment license public hearing until the January 6, 2009 meeting to be held at 7:30pm.
The meeting was adjourned at 9:15pm.
*Please find the above cited documents at the Selectmen’s Office.
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