Hurwitz, Richard & Sencabaugh LLP is pleased to announce that Bob Hurwitz and Gene Richard have been named Massachusetts and New England Super Lawyers for the fifteenth consecutive year, and that Dan Sencabaugh has been named a Massachusetts and New England Rising Star for the third time. Bob Hurwitz and Dan Sencabaugh received their honor in the field of construction law while Gene Richard received his recognition in the field of administrative law for his work as a liquor licensing attorney. The Super Lawyers and Rising Stars lists appear in Boston Magazine as well as the publication New England Super Lawyers. The Super Lawyers list recognizes the top five percent of attorneys in New England while the Rising Stars list recognizes the top 2.5 percent of attorneys 40 years old and under or in practice for 10 years or less.
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.
Recent Updates at the Alcoholic Beverages Control Commission
Recently, two new updates were posted on the Alcoholic Beverages Control Commission’s (“ABCC”) website. The first, effective May 28, 2013, is an advisory regarding obtaining a Certificate of Good Standing (COG) in connection with liquor license applications. Obtaining a sign-off from the Department of Revenue (DOR) can sometimes be a drawn-out process, so now the ABCC will accept COGs as part of the liquor license applications submitted to the local liquor licensing authorities. To obtain a COG from DOR, the applicant should go to DOR’s website and follow the links to obtain a COG. In situations where a license is being transferred, both the Buyer and the Seller should obtain the COG.
The second update to the ABCC’s website is the list of active state licensees. These licenses include: Farmer Brewery, Farm Distillery, Farmer Winery, Wholesalers, Manufacturers, Winery Shipment, and Caterers Licenses. The retail licenses issued by the local municipalities and approved by the ABCC are not currently listed on this site.
These updates are part of an ongoing process at the ABCC to make the more transparent and efficient for all those involved in the liquor licensing process.
Recent ABCC Decision a Win for Liquor License Applicants
The Massachusetts Alcoholic Beverages Control Commission (ABCC) recently issued a decision in favor of a liquor license applicant in Falmouth.
Murphy’s Package Store (Murphy’s) applied to the Falmouth Board of Selectmen to move from its existing Main Street location to new premises approximately four miles away in West Falmouth. After hearing testimony both in favor and opposed to the move, the Board of Selectmen voted 3 to 2 to deny the application. The issues of traffic and parking at the new location were hot topics at both the Falmouth hearing, and at the subsequent appeal before the ABCC.
The ABCC disapproved of the Board of Selectmen’s denial, and remanded the matter back to the Board with the recommendation that the application be granted. In doing so, the ABCC made statements that may help counter some of the common tactics used by opponents to liquor license transfers.
All cases involving the issuance or transfer of liquor licenses in Massachusetts involve a determination of a public need for the license. However, a licensing board in reaching a decision concerning public need is required to make specific findings that are supported by the record. Regarding Murphy’s, the ABCC stated that the Board of Selectmen’s denial was inadequate as it merely recited a summation of the opponents who testified about parking and traffic. The [ABCC] finds this decision to be a general finding (emphasis added). To distinguish, the ABCC cited the case Exotic Restaurant Concepts and stated that [r]ecitals of testimony do not constitute findings. See Exotic Rests. Concept, Inc. v. Boston Licensing Board, Suffolk Superior Court, C.A. No. 07-3287 (Borenstein, J.). In denying the application for transfer, the Board of Selectmen merely recited the statements of the opponents concerning traffic and parking, and this is insufficient to deny a license transfer. In fact, the record reflected that adequate parking was available and neither the Police Chief nor Fire Chief had any objections to the transfer.
Additionally, the ABCC refused to give any weight to one opponent’s statement that there existed another package store located less than Â½ mile away from the proposed transfer location. The ABCC stated that “[t]his distance between the existing package store and the proposed location of Murphy’s was not verified to the [ABCC], nor was it explained how this distance was calculated or calibrated.”
The ABCC noted that a single liquor store in one area of a town could be considered a monopoly. The ABCC in its decision stated that “the action of the Local Board in denying this application has the effect of continuing in place the monopoly held by the sole § 15 license in this section of the town.”
Based on the ABCC’s Murphy’s decision, liquor license applicants are advised to prepare to substantively counter objections that may be raised by opponents. Common general objections such as traffic, parking, and proximity of other package stores can be countered by a license applicant who builds a strong and detailed record at the hearing.
Howard J. Wayne to Chair MCLE Panel on Alcohol, Food & Entertainment Licensing
Wayne, Richard & Hurwitz LLP invites you to join us for a seminar entitled Alcohol, Food & Entertainment Licensing & Liability Update 2013. The seminar will be taking place on Thursday, April 11th from 2:00 to 5:00 p.m. both via Webcast and live at the MCLE Center located at 10 Winter Place in Boston. Howard J. Wayne, founding partner of the firm, will be chairing our esteemed panel. The panel will include:
- Kim S. Gainsboro, Esq. Chairwoman, Alcoholic Beverages Control Commission
- William Kelley, Esq. General Counsel, Alcoholic Beverages Control Commission
- Paul M. Maleck, Esq. Doherty, Wallace, Pillsbury & Murphy P.C.
- Paul Mullan, Esq. Commissioner, Worcester License Commission
- Nicole Murati Ferrer, Esq. Chairwoman, Licensing Board for the City of Boston
At this seminar, you will hear directly about the licensing process directly from the decision makers and leading practitioners. The law surrounding licensing and liability is always changing; this program will help you and your clients stay current on this challenging area of the law. The conclusion of the program will include an “Ask the Experts” session for attendees to get answers to their licensing questions.
Please click here to register to attend the seminar or click here to sign up for the live Webcast. The panel is looking forward to fielding your questions!
Gene Richard Chairs Panel on Delaware vs. Massachusetts Corporations and LLCs
Gene Richard recently chaired a panel of attorneys for Massachusetts Continuing Legal Education (MCLE) on the subject of Delaware vs. Massachusetts LLCs & Corporations. The presentation took place on Friday, September 21, 2012. The panel also included Joshua M. Bowman of Sherin and Lodgen LLP, Andrew S. Hochberg of Tamkin & Hochberg LLP, and Richard Heller, Senior Vice President and General Counsel of Legal Sea Foods LLC.
Speaking to an audience and broadcast live on the Web, the panel explored various differences between corporations and LLCs organized in Massachusetts and Delaware, focusing on two fundamental questions commonly raised by business clients in Massachusetts: 1) should their business be organized in Massachusetts or Delaware, and 2) should their business be operated as a corporation or an LLC? The panel discussed practical advice on how to guide clients, from the formation of their business entities, to dealing with director and shareholder matters, to the use of LLCs in conjunction with estate planning. The presentation concluded with a live “View from the Client Side” Q&A, in which Mr. Heller explained issues involved in Legal Sea Foods evolution from a Massachusetts corporation, to a Delaware corporation, to its recent conversion into a Delaware LLC.
More information about the seminar can be found by clicking here.
Casinos and Happy Hour Regulations in Massachusetts
There has been much debate over whether Massachusetts should permit the establishment of casinos within the Commonwealth. In an interesting development, the Massachusetts Senate approved an amendment to the pending casino bill that would eliminate the famous (or infamous, as some would say) “happy hour regulations.”
Since 1984, the Massachusetts happy hour regulations have prohibited bars and restaurants from offering free or discounted drinks to their patrons. Specifically, the regulations require bars and restaurants to keep the price of a drink the same throughout the entire calendar week. Thus, no 5 p.m. discounts allowed, unless the bar or restaurant wants to charge the reduced price for the entire week. Bars and restaurants are also prohibited from altering the volume of your drink without proportionally altering the price.
The casino bill, if passed by the Massachusetts legislature, could change all of that. On Tuesday, October 11th, the Senate voted 25 to 13 to amend the pending casino bill. The amendment would essentially rid Massachusetts of the happy hour regulations for bars and restaurants, as well as casinos. The amendment must still be approved by the House and signed by the Governor into law.
The concept of the “free drink” is closely tied to casino gambling, presumably because it keeps gamblers motivated to continue gambling. Connecticut’s Foxwoods and Mohegan Sun casinos have long offered free drinks to its customers. It is thought that if Massachusetts’ casinos are to compete, free drinks are a necessity.
However, if casinos are exempted from the happy hour regulations, many bar and restaurant owners are worried that they will not be able to compete. Thus, the amendment to the casino bill would eliminate the regulations for bars and restaurants and create a level playing field.
It also remains to be seen whether Massachusetts casinos will allow smoking. Connecticut law currently allows gamblers to smoke and Connecticut casinos have set up gambling rooms where smoking is permitted. There is no smoking amendments currently in front of the Legislature.