BOARD OF SELECTMEN
TUESDAY, DECEMBER 9, 2014
The regular meeting of the Board of Selectmen convened at 6:30 p.m. in the conference room at 110 Main Street, in the Town Administration Building. In attendance were Edward S. Harrison, Dr. Richard M. Smith and John R. Morrell. Also present were Town Administrator Evan Brassard and Town Counsel Ben Coyle. At 6:33 p.m., Dr. Smith made a motion to adjourn from open session to go into executive session for the purpose of discussing strategy with respect to collective bargaining or litigation pursuant to M.G.L. c. 30A, Sec. 21 (3). Mr. Morrell seconded and it was unanimously VOTED.
At 7:00 p.m., Dr. Smith made a motion to adjourn from executive session to return to open session. Mr. Morrell seconded and it was unanimously VOTED. The media was now present.
Acceptance of Meeting Minutes:
Dr. Smith made a motion to accept the meeting minutes of November 25, 2014 – open and executive sessions. Mr. Morrell seconded and it was unanimously VOTED.
Hearing – Allegation of Liquor License Violation – Orange Lantern, Inc. d/b/a Magic Lantern:
Mr. Harrison opened the hearing at 7:05 p.m.
Mr. Harrison read the letter addressed to Patrick Pessolano, Manager of the Orange Lantern, Inc. d/b/a/ the Magic Lantern from Town Administrator Evan Brassard, into the record which stated this hearing is being held due to an alleged violation of M.G.L. chapter 138 section 34 serving alcoholic beverages to a person under the age of 21. The date of the alleged violation was October 3, 2014 to October 4, 2014.
Attorney Daniel Kelly, representing the licensee approached the Board of Selectmen. Patrick Pessolano was unable to attend this hearing; however his brother Mark Pessolano who is the owner of the establishment was present.
Attorney Kelly explained the establishment did not serve the under aged person any alcohol. If she was served it was by someone who purchased the drink or drinks and provided the alcohol to this person without the knowledge of the establishment.
Attorney Kelly explained the case of Tiki Hut vs. the A.B.C.C., whose case interprets the M.G.L. chapter 138 section 34. Attorney Kelly noted the statements received from three different people that were present at the Magic Lantern at the time of the alleged violation. The underage minor herself does not state she purchased the alcohol there, and this is the only statement that mentions she had any alcohol. She further states in her statement she received the alcohol from other patrons. The other two statements received from two other witnesses’ state they did not see her purchase any alcohol or have any alcoholic drinks given to her. These two statements also state they did not see her present any outward signs of intoxication at any point throughout the evening.
Attorney Kelly explained in order for the Magic Lantern to be found guilty of this violation under the law of furnishing sale or delivery, it has to be a member or staff of the licensee, or someone if it was a patron, acting as an agent of the licensee, actually/physically give the alcoholic drink to the minor.
Mr. Harrison noted the minor stated she was blitzed and consumed a number of different types of drinks. However, there wasn’t any direct evidence that states the bartender gave her the drinks.
Attorney Coyle said he believes the case Tiki Hut vs. the A.B.C.C., indicates the A.B.C.C. identified the general purpose of the statute, but determined the legislative intent looks primarily at the statutes language itself, and that section 34 chapter 138 can reasonably be construed as not imposing a duty on a licensee to exercise reasonable care to assure that no alcoholic beverage will find its way into the hands of persons below the legal drinking age. The statutory language applicable to the licensees focuses only on sales and deliveries, therefore since there was neither a finding, nor evidence that the TiKi Hut, in this particular case, sold or delivered any alcoholic beverage to a person by the TiKi Hut or anyone acting as its agent, the Judge ordered the violation that occurred be set aside.
Mr. Pessolano approached the Board of Selectmen and stated the minor came in through the back door. She was approached by the bouncer and stated she was 22 years old and that she doesn’t drink or do drugs. The two bartenders working that night were told not to serve her as she stated she left her ID in New Hampshire. Mr. Pessolano said without an ID, even a 50 year old would not be served. Mr. Pessolano told her she could audition to dance, but an ID would need to be on file if she was hired.
The two bartenders working on the night of the alleged allegation were in attendance at this hearing. The first one identified herself only as Kristen, approached the Board of Selectmen and stated she was told by Mr. Pessolano not to serve the girl. It wasn’t real busy that night; and she didn’t serve her. Kristen said she was not aware of her drinking at all and she seemed to be fine.
The second bartender on duty that night approached the Board of Selectmen and identified herself as Katrina Griffin. Ms. Griffin said the girl without the ID was pointed out to her and Ms. Griffin she too was told not to serve this person. Ms. Griffin said it was an average night and she didn’t see anyone giving the under aged person drinks. It was explained everyone goes to the bar to get the drinks. If she was served in a private room, it wasn’t by the bartenders, as they don’t leave they bar.
Mr. Coyle said establishments need to make sure everyone has an ID, and keep an eye on people purchasing more than one drink.
Dr. Smith made a motion to close the hearing at 7:28 p.m. to go into deliberation. Mr. Morrell seconded and it was unanimously VOTED.
After talking this over amongst them, Dr. Smith made a motion the Orange Lantern, Inc. d/b/a the Magic Lantern was not in violation of M.G.L. section 34 chapter 138. Mr. Morrell seconded and it was unanimously VOTED.
Dr. Smith stated he would like to see the security plan, the written procedure as to how the Magic Lantern checks ages, within a two week time period. Mr. Pessolano stated he would provide this.
Renewal of Various Licenses:
Dr. Smith read into record and made a motion to approve the licenses on page one, as attached. Mr. Morrell seconded and it was unanimously VOTED.
Mr. Morrell read and made a motion to approve the licenses on page two, as attached. Dr. Smith seconded and it was unanimously VOTED.
Mr. Harrison read page three into the record, as attached. Dr. Smith made a motion to approve the licenses just read as presented. Mr. Morrell seconded and it was unanimously VOTED.
Appointment of Police Officers and Election Workers:
Dr. Smith read the list of reappointments for the Police Department into the record, as attached, and made a motion to appoint them as presented. Mr. Morrell seconded and it was unanimously VOTED.
Mr. Morrell read the list of appointments for the election workers, as attached, and made a motion to appoint them as presented. Dr. Smith seconded and it was unanimously VOTED.
Purchase of Flags for 110 Main Street:
Mr. Brassard noted the new flag pole at 110 Main Street is larger than the previous pole and this requires larger flags. Two 8 X 12 American flags and two 4 X 6 POW MIA flags, the total comes to $298.00. This will allow one of each flag to be flown while keeping the second flags as spares.
Dr. Smith made a motion to purchase the flags at a total cost of $298.00 from the Gifts to the Town Account. Mr. Morrell seconded and it was unanimously VOTED.
In Other Business to Come Before the Board:
- Mr. Brassard said the Town just received the paperwork to complete, prior to the town
receiving roughly $516,000 in reimbursement funds from the Federal Highway Emergency Relief for the October 29, 2011 snowstorm expenditures, where the town suffered considerable damage. Mr. Brassard explained the town was doing short term borrowing to keep that afloat while awaiting reimbursement.
Finance Director Deborah Mahar approached the Board of Selectmen and said the town had put in for $566,000 originally, but due to disallowances on locations on some of the trees, this brought the total down to just under $50,000 less than what had been requested.
Mr. Harrison asked it this money will go into the General Fund; Ms. Mahar replied no, because we’ve had the assurances we were going to get this money the town did some temporary borrowing in anticipation of receiving these funds. Now that we will have the money, long term borrowing won’t be needed, and this will save the taxpayers the interest on long term borrowing for this. Ms. Mahar noted the storm cost well over a million and a half dollars. After all the money the town received from FEMA and MEMA, who Ms. Mahar said were responsible for a good portion of that, the Federal Highway was responsible for the debris on the federal highway roads. Ms. Mahar noted this is the last storm Federal Highway will be doing the debris for as now they will leave it up to MEMA to handle, which Ms. Mahar said
makes more sense. Ms. Mahar said there were also portions that were the town’s responsibility as well, and over time some of these obligations were funded through town meeting, so we could reduce the temporary borrowing.
Mr. Morrell thanked Finance Director Deborah Mahar for all of her hard work, and noted the paperwork was very cumbersome. Mr. Morrell also thanked the previous Board of Selectmen for allowing him to clean up all of the damage at that time.
Correspondence was read and completed.
At 7:50 p.m., Dr. Smith made a motion to adjourn from open session to return to executive session for the purpose of discussing strategy with respect to collective bargaining or litigation pursuant to M.G.L. c. 30A, Sec. 21 (3), not to return to open session. Mr. Morrell seconded and it was unanimously VOTED.
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John R. Morrell, Clerk
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