BOARD OF SELECTMEN
Natick Town Hall
July 7, 2003
7:00 p.m.
The meeting was called to order by the Chairman Jeffrey A. Stern at 7:00 p.m.
PRESENT: Jeffrey A. Stern, John Ciccariello, Jay H. Ball, Charles M. Hughes. Absent: Paul R. McKinley
ALSO PRESENT: Philip E. Lemnios, Town Administrator; John P. Flynn, Town Counsel; Donna Challis, Secretary
WARRANTS: Payroll warrants were signed by the Board of Selectmen on July 7, 2003 in the amount of $601,971.46. This figure was included in total warrants signed by the Board of Selectmen of $1,050,547.93.
MODIFICATION OF THE RULES & REGS FOR RESTAURANT ALL ALCOHOLIC LICENSES
Asked to explain the draft rules & regs he had submitted for the Board’s consideration, Town Counsel John Flynn noted that there were several issues still remaining on the table. One involved the issue of whether the Board would entertain allowing the service of alcohol in restaurants subject to these regulations without the service of food. Would the Board allow bars within restaurants? He noted that most of the issues summarized in the draft dealt with that issue. On previous occasions the Board agreed on other amendments such as sushi bars, but as he understood it the focus of tonight’s discussion was the broader issue.
Mr. Ball asked if it was Mr. Flynn’s opinion that the Board was empowered to change the regulations such that a restaurant could have a bar, which was defined as where one sat on a stool and be served alcoholic drinks without the consumption of food. Mr. Flynn’s response was, “yes”. In follow-up Mr. Hughes questioned why that wasn’t the same as a general license, which would permit a tavern. How was it different if someone could have 3-4 drinks and leave? Mr. Flynn explained that this was limited to a portion of a licensed premise where the primary function would be the service of food. To him allowing this (service at a bar without food) to happen in a portion of a room was the distinction from a general license.
Mr. Hughes noted that service of alcohol at that location would be subject to the establishment showing it was incidental to food and the bar (sales) would count toward the 20%. Mr. Flynn confirmed that as correct. Mr. Hughes pointed out that the gross take from alcohol could rise much quicker, and again Mr. Flynn acknowledged that as being correct, but added that nothing in the draft rules & regs changed the 20% rule.
In response to a series of questions, Mr. Flynn advised that as drafted the seating in the cocktail lounge and bar did not count toward the 100 minimum, the rules & regs did not apply to beer & wine licenses, and the most seats a 100 seat restaurant could have in a cocktail lounge or bar was 10. Mr. Flynn agreed that there was no limit on the number of seats in a waiting area in the current rules & regs. Mr. Hughes pointed out that if the rules & regs were adopted as drafted, a 120 seat restaurant would be allowed to have 12 seats in the bar and waiting area where currently there was no limit on the seats in a waiting area. Mr. Stern, however, said he had a different read. He didn’t read that section of the draft to be 10% of the bar and lounge combined. He believed the cocktail lounge
could have a seating capacity of 10% as well as a bar. A 100-seat restaurant could have a 10-seat bar and a 10 seat waiting area. When asked for his intention, Mr. Flynn responded that the way Mr. Stern phrased it was how it was drafted.
MODIFICATION OF THE RULES & REGS FOR RESTAURANT ALL ALCOHOLIC LICENSES (contd)
Mr. Ball distributed a table showing an overview of alcohol and food service regulations for Natick restaurants and suggested going through it to see if there was some agreement.
One category on the table was alcohol service allowed after the kitchen closed, and Mr. Ciccariello asked if there was agreement that what was being referred to was the main kitchen. When the main kitchen closed, that was it. If tossing a coin, Mr. Ball said he would opt otherwise. A restaurant could still be making sushi after the kitchen was closed.
Mr. Ball’s table indicated that entrees were not available in the waiting area, but Mr. Stern didn’t know of anything in the regs that would exclude a main dish in a waiting area. Mr. Ball noted that the expectation was that main dishes would not be served.
Mr. Ball continued that his table distinguished between two types of bars. Right now the Town allowed so called service bars, but he proposed to redefine serve bar as where people could get served and a preparation bar where drinks were made. If the Board voted to allow service bars, Mr. Ball questioned if there would be the expectation of main dishes. Mr. Ball answered his own question by noting that it wouldn’t matter because consumption of food wasn’t going to be required. Mr. Ciccariello pointed out that that had not as yet been decided, and Mr. Stern added that entrees could very well be available there. He noted that he had eaten many times at a bar.
Mr. Ball proposed that service at the bar be allowed after the kitchen closed because the consumption of food was not required anyway. Responding to Mr. Ball’s comment, Mr. Hughes noted that if service of alcohol could be accomplished after the food service was no longer available, what would stop a license holder from having the service of food until 7:00 p.m. and stay open until midnight and have the bar open. Wouldn’t that be a tavern or a general license? If the whole premise stopped serving at 7:00 p.m. and liquor was served until
midnight, Mr. Flynn felt that that would be a major departure from the rules & regs. He didn’t see that as what was being proposed.
Mr. Hughes asked if the Board was trying to make the stools at the bar part of the waiting area. He explained that now restaurants can have a waiting area where people can have a drink and not be required to order food. The belief was that people were there waiting to get a table in the dining room and there was no requirement to order food, but the license holder was still required to have alcohol incidental to food. The Board had to decide whether to allow seats at a bar. Mr. Ciccariello commented that that was basically allowed now at sushi bars, but Mr. Hughes clarified that people were not just allowed to drink at sushi bars.
Mr. Hughes continued that he didn’t think separate regulations were needed for bars and counters. If the Board was going to make it part of the waiting area, it could be part of the definition of cocktail lounges. Mr. Stern agreed but felt there was a difference. To him the difference between G (Section VII bars and counters) and H (food bars) was seating and whether it was included in the restaurant’s calculation to get to 100 seats. Mr. Hughes responded that he was not suggesting that food bars not be in. He was suggesting that G (Section VII) could be part of Section V – just adding to the definition of cocktail lounges and waiting areas, people who sit at a bar. Mr. Flynn noted that it had been drafted this way to give the Board a chance to look at separately, but it could be combined.
Mr. Ciccariello felt that leaving in Section VII gave the Board the opportunity to decide if it wanted to grant that (bars) to an applicant where if it were under Section V, the Board may not have that discretion. Mr. Flynn concurred. Mr. Ciccariello added that because it was felt restaurants with bars couldn’t be restricted to certain areas of Town, he thought the Board always wanted to have the ability to say whether or not certain restaurants should have a bar vs waiting area. Mr. Stern found that to be a fair statement.
MODIFICATION OF THE RULES & REGS FOR RESTAURANT ALL ALCOHOLIC LICENSES (contd)
Mr. Hughes inquired as to what grounds a licensee could ask for a waiting area and a bar, and the Board gives them a waiting area but not a bar. What grounds could the Board use to discriminate? Town Counsel responded that it was possible that there may not be enough floor space for the channeling of traffic and the Board could decide the space didn’t lend itself to a bar in restaurant A while there may be sufficient width or depth to allow both in restaurant B.
Mr. Ball commented that if the bars/counters and waiting areas/cocktail lounges were combined, the Board could say we don’t think the floor plan will work and send them back to the drawing board. Mr. Ciccariello, felt that if it were separated and someone wanted to test it, the Board could go back and say this was considered by the Board and there was a reason for putting it in the policy. He felt there was
a better chance of withstanding a challenge if it were in the regulation. The more that was put in the better.
With regard to the hours, Mr. Ball stated that he agreed with Mr. Hughes. If the Board allowed a bar at which alcohol was served and the consumption of food was not required, he agreed with the requirement that the kitchen be open, otherwise they would be running a tavern.
It was Mr. Stern’s understanding that restaurants do not close the kitchen entirely. Some leave the fryolators on while the rest of the kitchen was closed. Was the intent that the main kitchen and full service be available or some food service? Mr. Ball replied that his intent was that the place still be operating as a restaurant. If only a fryolator was on, to him they were not operating as a restaurant.
Mr. Ciccariello noted that that would mean that once the kitchen closed the service of alcohol ceased. If someone just got their meal the wait staff can say the bar is closing if you want a final drink.
Mr. Hughes noted that the rules now say that people can be served alcohol as long as the dining room was open and food service available and alcohol can be served in the public dining area for up to one hour after the kitchen closed. He questioned if the Board was talking about changing that? Mr. Stern liked what was in the rules now, but Mr. Hughes pointed out that the current rules & regs didn’t say that the service of alcohol was limited in the waiting area. It said public dining room. It didn’t say anything about service hours in the waiting area. Mr. Ball agreed that it didn’t, but felt it should.
Mr. Ball commented that he had been outspoken in his opposition to a bar where consumption of food was not required because he thought it was counter to the culture in Natick that developed since the 1920’s that was reflected by the older citizens. His second reason was the public safety aspect. Allowing people to sit at a bar limited only by the watchful eye of the bartender did not enhance public safety. Mr. Ball noted that he tried to do some due diligence. He talked to 100 people at random and asked what they would think about restaurants in Natick having a bar where you could have a drink or two and not consume food. The answers he got were from vague not sure I would like it to that would be fine. The culture of Natick on this issue has changed and if the rules reflected the current desires,
bars should be allowed. On the public safety issue, Mr. Ball noted that he had an extensive discussion with the Police Chief about DUI’s and how much of an impact allowing bars would have on traffic and public safety. The Chief did not feel there would be a measurable impact on public safety because people can get all they want in surrounding towns and drive through Natick.
In conclusion Mr. Ball stated that he had changed his position and was in support of allowing restaurants with 100 seats or more to have a bar area with restrictions.
Mr. Hughes thought the Board had changed the requirements for documenting the 20% compliance, but Ms. Challis explained that that was part of the renewal package, but was not written into the rules. Restaurants would now be required to submit 21 months of sales.
MODIFICATION OF THE RULES & REGS FOR RESTAURANT ALL ALCOHOLIC LICENSES (contd)
Mr. Hughes then noted that the current rules & regs required anyone with a waiting area to have one parking space for every three seats in the restaurant, but someone with a bar didn’t have that requirement. Mr. Ciccariello agreed that the bar should have the same restriction as the lounge. Mr. Flynn concurred.
Mr. Hughes again raised the issue of the time that service of alcohol had to end and proposed that it should be consistent throughout the regs. He supported keeping it one hour after the public dining room closed.
Mr. Ball questioned what he (Mr. Hughes) meant by the dining room being closed, and Mr. Hughes responded that it was when people weren’t getting fed any more. Mr. Ball noted that if a restaurant kept the dining room open and let people sit there, there was a potential for abuse. Mr. Hughes pointed out that people in the dining room have ordered a meal and the rules say food service is available. Mr. Flynn explained that the reason it was drafted that way was because the Board might feel there was a legitimate reason to distinguish between the hours served in a public dining area and an area where food was not being served. He thought there was a reasonable basis for distinguishing the time between the bar, lounge, and dining for the service of alcohol. It was drafted to foster a discussion.
Mr. Ciccariello was of the opinion that if the Board was going to allow a bar without food, he didn’t want people sitting there another hour popping drinks. He noted that he had gone to different restaurants and hadn’t seen too many difficulties having a bar in a restaurant, but his concern came when the restaurant stopped serving food. People staying at the bar and consuming drinks for one hour could be problems. He would rather have the rules say that when the main kitchen closed, alcohol could no longer be served at the bar – maybe 15-20 minutes after, but one hour was too long. Mr. Hughes concurred.
Mr. Hughes commented that the assumption was that the Board of Selectmen would set the hours and they would not be set by a zoning decision. Mr. Flynn responded that he wasn’t familiar with a situation like that, but to him the licensing authority was separate from any zoning. He didn’t think any other boards could dictate when alcohol could be served. Mr. Hughes referred to a zoning decision that said a restaurant had to close at 9:00 p.m., but the Selectmen’s regulations said restaurants could serve alcohol and food to midnight. If the Board gave a license to operate to midnight who was in charge? Mr. Flynn noted that if a variance was needed to operate, it was a zoning issue, but he would have to know more about the situation.
When asked how he came up with the 10% limit on bar stools, etc., Mr. Flynn advised that it was just a discussion point with no particular rationale. It was just a starting point for discussion.
John McGourty of General Growth Properties who was the owner of the Natick Mall was in the audience. Mr. Hughes asked a series of questions and Mr. McGourty responded that the largest restaurant the Mall was attempting to attract would be 250-275 seats in the dining area. From the restaurants they were currently talking to, the one with the most stools in the lounge area had 22 and the rest was 15-18. In addition to the bar stools they would still have a lounge area, but he didn’t know if the number of seats was the same.
Mr. Ball questioned where the Board went from here, and Mr. Ciccariello responded that he got a sense that none of the Board had a problem with allowing a bar and counters with some specific regulations. If that was the case, then perhaps the Board should agree on that subject and start to massage the rules & regs to get some of the regulations correct.
Mr. Stern suggested voting on the concept subject to final approval of the rules & regs, but Mr. Ciccariello pointed out that Mr. McKinley was not present.
MODIFICATION OF THE RULES & REGS FOR RESTAURANT ALL ALCOHOLIC LICENSES (contd)
As to the particular provisions, Mr. Stern stated that he would like to have some discussion on VIII Food Bars. Mr. Ball questioned if the Board was adding a formal and broader definition of sushi bar to the rules & regs, and Mr. Hughes explained that he had asked Mr. Flynn to draft this section so that it was generic.
Mr. Stern noted that he had a problem with the line that read, ‘no alcoholic beverages may be stored at or in a food service bar’. Mr. Ball concurred.
Mr. Hughes stated that he agreed with Mr. Ciccariello that the sense of the Board was to massage this. He suggested that the Board ask Town Counsel to draft language so the regulations for cocktail lounges and bars were consistent and consistent to the hours of operation and that it be clear that the service of food, while not required, be available at the location. He thought that was where the Board was going, although no decision had been made on whether or not the 10% limit, or any limit, was what the Board wanted to put in the regulations.
Mr. Stern responded that he definitely wanted to have a limit, and Mr. Hughes noted that that was the sense he got although he thought Mr. McKinley should have a look before taking a vote to change.
Mr. Ball stated that he was confused whether the 10% applied individually or collectively to a bar or waiting area. Mr. Hughes replied that he would rather have the two separate.
Mr. Flynn stated that he understood the point about the consistency, but asked if it was the consensus of the Board that the rules should be the same or different for when the public dining area can serve liquor and when the bar or cocktail lounge can serve alcohol. Should the proposed bar or waiting area be the same as the dining area.
It was Mr. Stern’s preference to have them consistent as it became difficult to enforce when there were different hours for different areas. Mr. Hughes had no objection to serving alcohol to people in the dining room for up to one hour after as long as the person ordered a meal as opposed to the dining room being closed, the kitchen being closed but someone can still drink for an hour.
Mr. Ciccariello asked about someone not wanting to order a meal with the drink, but Mr. Hughes pointed out that the regulations said served to people to whom a meal has been served.
Mr. Flynn was asked to prepare a final draft for next Monday’s meeting.
CLUB LICENSES
Mr. Lemnios reported that a letter had been sent to all club license holders that identified for license holders what a club license allowed an entity to have happen at the club and laid out the restrictions. He noted that this issue arose as the result of a particular license holder raising questions on club license restrictions and liability if the license was not adhered to. A compliment had been received from one of the license holders on outlining this.
Mr. Lemnios further noted that a proposed piece of legislation that would go to the General Court to address one of the issues that arose out of the review would be given to the Town’s legislative delegation. The proposed legislation would resolve the ambiguity.
Mr. Hughes pointed out that the Town’s regs didn’t seem to permit having two licenses on one piece of property which meant that the Board was really stuck with a home rule petition or there wasn’t a solution. Mr. Flynn agreed.
Referring to the draft of the proposed legislation, Mr. Hughes questioned if #2 was drafted so that it was broad enough to allow a club to have a wedding because it had to be sponsored by a member. Mr. Flynn advised that as it was drafted the request would have to be
CLUB LICENSES (contd)
funneled through a member. He also noted that it would impose a responsibility on the license holder as well.
Mr. Hughes questioned if it was broad enough so that if he wanted to have a graduation party at the club, a social director whose job it was to market the club for events could interview him and if satisfied he (social director) could then sponsor him or was a relationship needed. Mr. Flynn advised that the draft didn’t consider any relationship, but
required a member to be the sponsor not an employee unless the social director was a member.
Mr. Hughes noted that as drafted the legislation seemed to assume that the club would be the server of the alcohol as opposed to the caterer. Mr. Flynn responded that that was not his intent. Mr. Ball inquired if that meant that someone else could be hired to dispense the alcohol, and Mr. Lemnios replied that it was up to the club. If the club allowed a caterer to provide the alcohol, Mr. Ball questioned what the licensing authority would be. Mr. Hughes advised that the club had to serve the alcohol. Mr. Flynn agreed that under the club license the club served.
Mr. Stern inquired if the proposed legislation had been run by the Town’s legislative delegation. Mr. Lemnios advised that he had not, adding that he wanted to gauge the Board’s feeling. Mr. Stern stated that he would want to get their (Legislators) feedback before submitting it. The Board needed to know if this was something the Legislators could support or if it needed to go back to the drawing board.
Mr. Hughes asked if it would have to go to Town Meeting, but Mr. Flynn advised that it would not. This was not a home rule petition.
In response to Mr. Hughes’ comment that the proposal should be submitted to the Legislators and soon, Mr. Lemnios stated that he would submit it to them (Legislators) tomorrow and report back next Monday.
Mr. Flynn recommended, and the Board agreed, that he be authorized to run the proposal by counsel for the ABCC, but he didn’t know if it could be done by Monday.
EXECUTIVE SESSION
Mr. Hughes, seconded by Mr. Ball, moved to enter into executive session for the purpose of discussing matters pertaining to litigation, real property negotiations, and personnel. A roll call vote was unanimous in favor of the motion and the Board retired to executive session at 8:30 p.m. after announcing that the meeting would not return to open session.
ADJOURNMENT
The meeting was adjourned at 9:35 p.m.
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Jay H. Ball, Clerk
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