Liquor Issues
by Fern Shen1:41 pmSep 30, 20150
DJ's – and deja vu – all over again
In handling a case involving a Highlandtown tavern, the Liquor Board's new chairman, Ben Neil, says the panel cannot enforce MOU's between communities and tavern owners
Above: Stephan W. Fogleman speaks on behalf of Main Street Bar & Liquors before the Liquor Board.
Inspectors said the Highlandtown tavern was overcrowded when they checked it out in response to neighborhood complaints on July 12, with 160 people dancing and jamming a place designed for less than 100.
"The community is difficult," licensee Gurpreet Singh said, defending himself at a recent Liquor Board hearing where his establishment, Main Street Bar & Liquors, faced four violations including live entertainment without a license.
Singh had security guards on duty and posted "No Dancing" signs, he explained, but people just walked in.
Why hadn't he gotten it together a week later, asked one commissioner? On July 18, an inspector came again, and this time found the back area set up like a nightclub with a DJ using a microphone and people dancing.
Grilling the inspector, Singh's attorney, former Liquor Board Chairman Stephan W. Fogleman, demanded, "Can you cite for me where any use of a microphone constitutes live entertainment?"
(NOTE: DJs are specifically covered under the Zoning Code's definition of live entertainment, which states: "§ 1-153.2. Live entertainment. (a) In general. 'Live entertainment' means any one or more of any of the following, performed live by one or more persons, whether or not done for compensation and whether or not admission is charged: (1) musical act (including karaoke); (2) theatrical act (including stand-up comedy); (3) play; (4) revue; (5) dance; (6) magic act; (7) disc jockey; or (8) similar activity.")
Even though Singh referred to the person under discussion as a DJ and admitted hiring him, he claimed the microphone was only used to announce last call.
All this according to Liquor Board watchdog Rebecca Lundberg Witt, who was watching this September 17 hearing with a feeling of deja vu.
The hearing "was a nearly identical copy of the hearing for the same licencee and establishment" that took place two years before (September 19, 2013), Witt observed in her Community Law Center blog, Booze News.
"I'll do What I Have to"
Back in 2013, Singh had told a city policeman that he knew he was violating his permit, but would do what he had to to make money, Witt wrote. Singh's attorney had explained to the commissioners that Singh was young and misunderstood his license limitations.
"This is, essentially, the same testimony that Mr. Singh gave again, two years later," Witt said of the recent hearing.
Also trying to remind the commissioners of past history was Kevin Bernhard, who spoke on behalf of the Highlandtown Community Association and testifying over Fogleman's objection.
Bernard said the community had entered into an agreement with Singh about everything that was discussed during the hearing, Witt wrote.
Saying he believes Singh is fully aware of his responsibilities, Bernhard noted Singh was found guilty for similar violations in 2013. (The board, then under Fogleman's chairmanship, fined the establishment $1,100 for four violations.)
"He keeps doing what he's doing in order to make money," said Bernhard, who asked for as harsh a penalty as the board was able to legally give.
Powerless?
Then Bernhard was told by Liquor Board Chairman Benjamin A. Neil that the panel is powerless to enforce Highlandtown's "Memorandum of Understanding" with Singh.
Or any such agreement.
"We don't have the authority to enforce an MOU," Neil stated.
In the end, the three-member board voted unanimously to impose a $1,000 total fine, $250 for each violation.
Neil said he wanted to remind Singh about his responsibilities but did not want to impose the harshest penalty: "I'm not about closing people down and hurting people."
According to attorney-blogger Witt, Neil was incorrect when he said that the liquor board does not have the authority to enforce MOUs.
Here's what she wrote:
"To the contrary, the Board has had this authority since 1995, when the Maryland Court of Appeals held in the BLLC v. Fells Point Cafe case that 'when a licensee agrees to reasonable restrictions in order to obtain a license that clearly would not otherwise be granted, the licensee will be estopped from later arguing that the Board had no power to place such a restriction on the license."
Summing up Neil's statement, Witt said his position was troubling:
"When Liquor Board commissioners are wrong about a well-established principle of the law that they are charged with enforcing, it suggests a structural lack of proper training and education."
From Becky Witt, additional thoughts on the MOU issue:
"There was no testimony taken in the hearing about when and under what circumstances the MOU was signed. It's possible that the MOU was signed as a condition for approval; it's possible that it was signed at some other time. If Chairman Neil had inquired into this during the hearing and had made a determination that, in his reading of the Fells Point Café case, in order for an MOU to be enforceable, it had to have been a condition of transfer or issuance of the license, that could be within his power to do. But the commissioners did not ask about the conditions of the MOU, they didn't ask when it was signed, they didn't reference the Fells Point Café case or show, in any way, that that they had thought about the issue. Neil merely made the blanket statement that the Board has no authority to enforce MOUs. This is a false and misleading statement."
"The Fells Point Café case, by the way, does not necessarily require that the MOUs be made a condition to a transfer or new license in order to be enforceable by the Liquor Board. The reason that the court discusses the MOU as a condition of approval is that that was the situation before the court in the particular case. The question of whether an MOU adopted at another time (besides the original transfer or issuance) is enforceable by the Board is, I suppose, an open one. Again, the Board did not do any analysis or interpretation of Article 2B or its caselaw during the hearing."
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