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Mayor Walsh Orders Change At ZBA

Perhaps in response to the report by Councilor Wu that went to Mayor Walsh and the Boston City Council, the ZBA will be changing their hours starting August 5.

From a press release posted today on cityofboston.gov:

Mayor Martin J. Walsh and the City of Boston’s Inspectional Services Department (ISD) have directed the Zoning Board of Appeals (ZBA) to extend its hearing hours. Effective August 5, 2014, ZBA hearings will go from half days to full days. The hearings will begin at 9:00 a.m. and end at 4:00 p.m. every other Tuesday until further notice.

 

State House Still Considering Plan To Uncap Liquor Licenses

On July 1st the Massachusetts State Senate included a proposal in an economic development bill to remove the limits on liquor licenses a town can award to local businesses. Under the current system the number of licenses that are available in a community is based on population. This is sometimes referred to as the quota system and is also used in other states.

According to the Boston Globe, “Walpole, Mansfield, Canton, and Milton are currently at their liquor-license limits, while Foxborough, Hingham, Norwood, and Wareham have petitioned the Legislature to add licenses as they have grown.” While some towns have petitioned the Legislature to add licenses beyond their quota, other towns like Brockton have unused licenses.

The battle over the quota system has intensified over the last two years since Boston City Councilor Ayanna Pressley started to work on the issue in 2012. Since then the idea of abandoning the quota system has taken hold in City Hall but has yet to be completely embraced by the State House.

One of the biggest advocates in favor of the quota system is current members of the restaurant industry who may see their license as one of their most valuable assets. Under the quota system a license in Boston may be resold for $300,000 or more and can either act as a hedge against an economic downturn or collateral for future loans.

For now, the matter will be continued to be debated in the State House even while it is publicly supported by the Governor.

 

Solutions to Boston’s Permitting Problems

On June 18, 2014 At-Large City Councilor Michelle Wu submitted an interim report that addresses various permitting and zoning obstacles facing Boston businesses. The report comes from the Special Committee on Small Business, Entrepreneurship, and Innovation which Councilor Wu chairs.

The proposals address the barrier to entry for new businesses and streamlines a process which has in some cases become bloated, over-regulated, and antiquated. After Mayor Walsh or other members of the City Council comment on the report, some or all of the proposals may be considered by the full City Council for a vote.

It can be difficult for a new business to plan openings, construction, and hiring when timelines for permits and licenses are a mystery. Even worse this timeline can be a surprise to new entrepreneurs who have never navigated the permitting procedures of ISD and City Hall.

Some of the highlights of Councilor Wu’s report include:

1.            Publicizing estimated timelines for obtaining various permits and licenses based on data.

2.            Institute a case manager system

3.            Implement technology to shorten unnecessary delays by several weeks.

This week, the Boston IT department announced a hack-a-thon to solicit ideas from local developers. The hack-a-thon will tackle some of the problems discussed in the interim report including:

  • Which Permits Do I Need?: A single project may require multiple permits. Applicants need a clear, intuitive, and enjoyable guide that will help applicants identify the permits they need to start working!
  • What’s my Address of Record?: Every project needs to be linked to an address in the City’s master database.  In the current system, finding your address is tougher than it should be. Our new online system needs a clear way to search addresses and suggest alternatives, getting it right the first time.
  • Can I Apply for that Permit Online?: With September 1st weeks away, developers will try their hand at a challenge to provide a very practical solution using the City’s new API – creating a simple online and/or mobile application for Street Occupancy permits required to block space for a moving truck.
  • Where am I in the Approval Process?: Complex building projects can take months to review and permit, even if the process works correctly. Residents needs a clear way to track all permits associated with their project, which helps them understand how close they are to getting underway.
From : http://hubhacks.challengepost.com/

 

Senate Passes Bill to Allow Sale of Alcohol Before Noon On Sundays

The Massachusetts State Senate passed a bill today which would allow off-premise licensees to sell alcoholic beverages at retail before noon on Sundays. The bill was sponsored by State Senator Steven Howitt of Seekonk. The bill will now be considered by the House.

The full text of the bill:

SECTION 1. Paragraph 52 of section 6 of chapter 136 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out, in line 168, the words “12:00 noon” and inserting in place thereof the following words: – 10:00 a.m.

New “Direct Wine Shipper” License Included In State Budget

The FY 2015 state budget signed by Governor Deval Patrick last week includes a provision that creates a new Direct Wine Shipper license in Massachusetts. The law will take effect on January 1, 2015 and will take Massachusetts off of a dwindling list of states that bar direct wine shipping, a list that includes: Alabama, Arkansas, Delaware, Kentucky, Mississippi, Oklahoma, Pennsylvania, South Dakota, and Utah. This change in Massachusetts law comes after intense pressure by industry groups and local sports figures.

The new law requires wineries, vineyards, or manufacturers to apply for a state-issued shipping license and pay a $300 fee, with a $150 renewal fee every year. All shipped packages must be marked to require a signature upon deliver with the words “CONTAINS ALCOHOL: REQUIRES SIGNATURE OF AND PERSONAL DELIVERT TO A PERSON LEGALLY AUTHORIZED TO CONSUME ALCOHOLIC BEVERAGES IN THE COMMONWEALTH” with a seal of licensure. The wine must be purchased and shipped to a Massachusetts resident who is 21 years of age and older. The new license allows shippers to deliver no more than 12 cases of wine to consumers each year.

Any person, firm, or corporation who violates these new provisions will be deemed to have engaged in a deceptive act or practice under chapter 93A and may be subject to license suspension or fines.

The new law does not address the delivery-truck law which requires a delivery permit for each truck involved in the delivery of alcohol, at a cost of $200 per permit. Most states allow for one permit to cover an entire freight company. According to the Boston Globe, State Representative Ted Speliotis of Danvers will push for a fleet-wide permit system if the existing law has a detrimental effect to wine shippers.

Summary of ABCC Actions – June 2014

Ten recent decisions by the Massachusetts Alcoholic Beverages Control Commission (“ABCC” or “Commission”) were published in early June.

One “automatic amusement device” case was brought against a licensee, the Knights of Columbus lodge in Wakefield, for permitting gambling on its premises in violation of 204 CMR 2.05(2).  Two machines located in a room near the entrance were determined by investigators to be gambling devices.  The manager reported that the lodge had arranged a 50-50 proceeds split with the owner of the machines.  The licensee was ordered to have the devices removed immediately and the Commission suspended the license for ten days, with five days to be served and five days to be held in abeyance for two years, provided that no further violations occur.

Two cases involved restaurant licensees charged with purchasing alcoholic beverages from package stores (rather than from wholesalers, importers or manufacturers).  Whaleback Restaurant (Bourne) and Combination Improvement Club (Methuen) each stipulated to allegations of sales of alcoholic beverages purchased from a §15 package store, in violation of M.G.L. c. 138 § 23.  Evidence of the transgressions included admissions from the licensee, package store stickers on bottles and evidence of glue-like substances in the shape of a retail price sticker. Because the licensees had been in business for lengthy periods of time (10 years and more than 50 years, respectively) without a record of previous violations, the Commission issued each a warning.

Five “sale to minor decisions” were published, with four of the five cases involving “sting operations,” in which ABCC Investigators utilized underage operatives to attempt to purchase alcohol on licensed premises:

Licensees Sinnis Pub (Dudley) and Kwik Stop (Dudley) each stipulated to allegations of making a sale or delivery of alcoholic beverages to a person under 21 years of age after an underage operative working with ABCC investigators purchased alcohol without being asked for identification.  Because each licensee had been in business for ten years with no previous violations, the Commission issued each a warning.  Similarly, licensee Vorelli’s (Provincetown) was determined to have permitted the sale or delivery of an alcoholic beverage to a minor when an underage operative was in possession of an alcoholic beverage on its premises and was not asked for identification.  Because the licensee had been in business for more than thirty-five years with no previous violations, the Commission issued a warning.  Nor’east Beer Garden (Provincetown) also stipulated to a sale or delivery to an underage person after failing to request ID from an operative; a three day suspension was issued, to be held in abeyance for two years, provided that no further violations occur.

Bay State Wine & Spirits (Canton) was also investigated for alleged sales or deliveries of alcoholic beverages to underage individuals, partially in response to information provided to the ABCC by the Canton Police Department.  During a span of thirty minutes on an evening in October 2013, Investigators recorded two sales to underage individuals using a fraudulent ID (neither individual working with ABCC investigators) on the premises.  Subsequent to the incidents, the licensee made efforts to institute additional employee training and to confiscate fraudulent identification. The Commission suspended the license for five days, with the suspension to be held in abeyance for two years provided that no further violations occur.

Acting on an anonymous complaint filed with the Commission, ABCC Investigators reported a violation of M.G.L. c. 94 § 186 at The End Zone Sports Pub (Mendon) for falling below standards of purity.  Investigators reported finding twelve alcoholic beverage bottles that contained foreign matter (fruit flies).  Because the licensee had been in business for 10 years with no previous violations, the Commission issued a warning.

Finally, the license of the Hillside Country Club (Rehoboth) had previously been indefinitely suspended for violations of M.G.L. 151A §§ 14 and 15 (regarding payroll taxes).  Based on evidence introduced at a hearing in November 2013 that demonstrated the licensee’s good standing with the state and with wholesalers, the indefinite suspension was reversed to a suspension of time served (from January 17, 2013 to October 5, 2013).

Summary of ABCC Actions – May 2014

Fourteen recent decisions by the Massachusetts Alcoholic Beverages Control Commission (“ABCC” or “Commission”) were published in early May.   Eleven of the fourteen decisions involved allegations of sales of alcoholic beverages to a person under the age of 21, two concerned “automatic amusement devices”, and one the rules for “club” licenses.  The moral of the May decisions?  If you have to be a liquor licensee caught violating a liquor law, be in business for many years before that happens – and don’t let it happen twice!

The club license decision was perhaps the most unusual.  The Polish American Citizens Club of Webster received an indefinite suspension from the Commission in July of last year for failing to file annual reports with the ABCC for the years 2003 – 2012, and also for having changed officers and directors without appropriate approvals from local and state licensing authorities.  The Club brought its records up to date, and the ABCC rescinded the indefinite suspension.  However, the Club went without a license from the end of July to the beginning of November.  The decision serves as a reminder to club licensees of the need to file annual reports with the ABCC concerning their officers and their compensation.

The two “automatic amusement devices” cases were brought for having such devices (which are licensed under M.G.L. c. 140 §177A) in rooms that were closed off and not in open view at all times.  The Commission cited the licensees under the Alcoholic Beverages laws for “permitting an illegality” on their premises, in violation of 204 CMR 2.05(2).  Each of the licensees installed “see-through” doors after the date they were cited but before the hearing, and was given a warning by the Commission, which noted that each licensee had been in operation for many years without previous violations (for 22 years and “over 100 years”, respectively).

Turning to the “sales to minor” decisions, ten of the eleven concerned “sting operations,” where ABCC Investigators send an underage operative into a licensed premises to attempt to purchase alcohol.  In the eleventh case, the ABCC investigators encountered an under-aged patron who had already been served an alcoholic beverage without benefit of a “sting”.  In each of the eleven decisions, the licensee stipulated to the violation, so only the penalty portion of the ABCC’s decision was really at issue.

Six of the eleven licensees were given warnings, mostly due to having been in business for extended periods without any previous violations. These included:  Panchos Mexican Restaurant (Pittsfield) (over ten years); Plainville Liquors (Plainville package store) (nineteen years); South Liquor Mart (Plainville package store) (more than twenty years); Xtra Mart (Spencer package store) (more than twenty years); and Powers Restaurant & Café (West Springfield restaurant) (a truly remarkable more than sixty years with no previous violations).  Another licensee with no previous violations was also given a warning, Rama Wine & Spirits (Norwood package store), not because of the length of time it had been in business, but because “The Commission considered the extenuating circumstances which occurred at the time of the offense and which later resulted in the death of the clerk’s family member…..”  The Commission did not elaborate within their decision as to the specific nature of the “extenuating circumstances”.

Four more licensees were presumably first time violators, but perhaps not in business for such significant periods of time, as they were each given three day suspensions, to be held in abeyance for two years provided no further violations occur.  These four included Seaside Wine & Spirits (New Bedford package store); The Thirsty Whale (Newburyport restaurant); King Jade Restaurant (Northridge); and Sharon Market (Sharon package store).

The last “stung” licensee was Knox Trail Inn (Otis).  Within the previous two (2) years, the Commission had already found a violation and ordered a three (3) day suspension, to be held in abeyance provided no further violations occurred.  Accordingly, for this second violation within two years, the Commission suspended the license for four days, of which two will be served and two to be held in abeyance for two years provided no further violations occur.  Plus, the Commission reinstated the prior suspension, so the licensee will serve a total of five (5) days, with two to be held in abeyance.

State House Action May Lead to Direct Shipment of Wine in Massachusetts

The Massachusetts Legislature moved a step closer to bringing direct shipment of wine to Massachusetts residents. Something the Boston Herald recently noted is long overdue. The House proposal which was added as an amendment to the state budget is now seeking support in the Senate.

If passed Massachusetts residents would be able to order wine online from out of state and have it shipped to their home. Although Massachusetts residents drink (and tweet about) wine at a much higher rate than the rest of the country, Massachusetts is one of nine states that bans direct shipment.

Liquor stores and wholesalers are opposed to the change, fearing that it could hurt sales. Others worry that direct shipment may be abused by those underage. But when a federal judge calls the restriction unconstitutional, and when Drew Bledsoe says that the restriction is a big deal for small wineries the state house starts to listen.

This is a part of the new changes to how consumers find and enjoy their favorite drinks. Recent successes of Drizly (an alcohol delivery service now available in Boston) Delectable (an  iphone app that helps you find and share wine recommendations), and Drync (an iphone app from a Cambridge start-up that helps users organize and order their favorite wines) all point to a shift away from the local package store as the only place in town to go for recommendations and purchases.

Robert W. Hurwitz and Eugene R. Richard Named Super Lawyers

Partners of the firm Robert W. Hurwitz and Eugene R. Richard have both been named Massachusetts and New England Super Lawyers for the tenth consecutive year.  Bob was named in the field of construction law, and Gene handles a range of business and legal issues, including contract negotiation and enforcement, administrative and regulatory law, and corporate law.

The Super Lawyers list appears in Boston Magazine as well as the publication New England Super Lawyers, and recognizes the top five percent of attorneys in New England.

Community Work Services and Fedcap combine

Wayne, Richard & Hurwitz LLP  represented Boston non-profit entity Community Work Services (CWS) in its recent agreement to combine with Fedcap, a larger non-profit headquartered in New York. Boston’s Community Work Services will continue their 136-year mission of helping people to transform their lives through employment.

Fedcap in turn is one of the largest workforce development agencies in the country and helps more than 25,000 Americans find and keep meaningful employment each
year. To learn more about Fedcap, please visit http://www.fedcap.org/.

The combination was approved by the CWS Board of Directors, and concludes a five-year sustainability strategy that included exploration with other national and Massachusetts area not-for-profits. The decision to combine with Fedcap was based on a shared mission to create opportunities which help people with barriers achieve greater self-sufficiency.

CWS will continue to operate independently under its current management team and CWS will become the hub for Fedcap operations in New England. Serena M. Powell will continue as the Executive Director of CWS and assume the role of Senior Vice President of New England for Fedcap.

WRH partners Bob Hurwitz and Howard Wayne are both past Presidents of CWS.