sangillo’s.pdf

In re:

STATE OF MAINE BUREAU OF ALCOHOLIC BEVERAGES & LOTTERY OPERATIONS

DIVISION OF LIQUOR LICENSING AND ENFORCEMENT

SANGILLO'S TAVERN, LLC, d/b/a SANGILLO'S

DECISION AND ORDER

Sangillo's Tavern, LLC, doing business as Sangillo's, appeals the City of

Portland's decision to deny its application for renewal of its on-premises liquor

license . A de novo public hearing on the appeal was held in Portland on November

6 and 7, 2014. Because the Bureau finds that Sangi.Ho's has not established by clear

and convincing evidence that the City's decision was without justifiable cause,

Sangillo's license application is denied.

Procedural History

On February 17, 2014, Sang:illo's applied to the City of Portland for a renewal

of its liquor license as a Class A Lounge. The City held a public hearing on the

renewal application on March 17, 2014, in which it considered Sangillo's conduct

during the previous licensing period-February 26, 2013, to February 26, 2014. On

April 7, 2014, the City Council voted, 5 to 4, to deny the application. A written

decision, signed by the five councilors voting for denial, was issued on May 19, 2014.

The decision cites three grounds for denial of the application:

1) Repeated incidents of record of breaches of the peace, disorderly conduct, and other violations of law on or in the vicinity of Sangillo's and caused by persons patronizing or employed by Sangillo's, in violation of 28-A M.R.S. § 653(2)(D);

2) Failure of servers to complete server training required by 28-A M.R.S. § 653(2)(G);

3) Operation or management of Sangillo's in a manner that "endangered the safety of persons residing in the areas surrounding this place of business." See 28-A M.R.S. § 654.

On May 30, 2014, Sangillo's timely appealed the City's decision to the Bureau of

Alcoholic Beverages and Lottery Operations (the "Bureau") pursuant to 28-A M.R.S.

§ 653(3).

After consultation with the parties, a hearing before the Bureau was

scheduled for September 11-12, 2014. Tim Poulin, Deputy Director of the Bureau,

was appointed hearing officer. See 28-A M.R.S. § 83-B(2). Notice of hearing was

mailed to the parties and also published in the Portland Press Herald on August 5

and 6, 2014. There were no motions to intervene.

On September 5, 2014, Sangillo's moved, unopposed, to continue the hearing

to pursue settlement discussions with the City. The Bureau granted Sangillo's

motion, continuing the hearing until November 6- 7, 2014. (See Order Granting

Unopposed Motion to Continue Hearing, dated September 10, 2014.)

The hearing was held as scheduled on November 6 and 7. The City of

Portland called three witnesses, all from the Portland Police Department ("PPD"):

Lieutenant Gary Hutcheson, Chief of Police Michael Sauschuck, and Assistant

Chief of Police Vernon Malloch. The City also offered 10 exhibits, all of which were

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admitted. Exhibits 1, 2, 6 and portions of exhibit 5 (specifically, pages 151-67 and

172-73) were admitted over Sangillo's objections.

For its case, Sangillo's called the following witnesses: Justin L. Alford,

Emerson Boxhill, Lynda Eaton, Janessa Emmerton, Rev. Michael J. Seavey, Diane

Russell, Kathleen Sangillo, Dana Sangillo, and Michelle Turkewitz. Sangillo's

offered into evidence 7 exhibits, all of which were admitted. Exhibits 1, 2, and 7

were admitted over the City's objections.

The public was provided four opportunities during the two-day proceeding to

provide either sworn testimony or unsworn public comment regarding the matters

at issue. A total of 18 members of the public provided testimony or public comment.

In reaching this decision, the hearing officer has carefully considered all public

testimony and unsworn public comment. As required by law, however, he has based

his factual findings solely on sworn testimony and admitted documentary evidence.

The Bureau extends its appreciation to all members of the public who offered

comment or testimony in this matter.

After hearing, the Bureau on December 9, 2014, notified the parties of its

intent to take official notice of certain facts. Both parties filed objections, which are

addressed below. The parties filed post-hearing briefs on December 23, 2014.

Standard of Review

When a municipality denies an application for a liquor license, the applicant

may appeal that denial to the Bureau. 28-A M.R.S. § 653(3). The Bureau must

conduct a de novo hearing on the application. Antler's Inn & Restaurant, LLC v.

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Dep't of Pub. Safety, 2012 ME 143, ii 7, 60 A.3d 1248; Ullis u. Inhabitants of Town of

Boothbay Harbor, 459 A.2d 153, 157 (Me. 1983). The applicant bears the burden at

hearing of proving that a denied license should issue; the Bureau may override the

municipality's decision to deny "only if it finds by clear and convincing evidence that

the decision was without justifiable cause." 28-A M.R.S. § 653(3)(B). In considering

the evidence, the Bureau must give "appropriate deference" to any factual findings

actually made by the municipality. Ullis, 459 A.2d at 157. In addition, the Bureau

is required to uphold the municipality's denial "whenever that denial in fact was

proper under [title 28-A]----€ven if the reasons stated by the [municipal] officers in

their decision would not support the denial." Id.

Ruling on Official Notice

The Bureau noticed its intent to take official notice of the following facts:

1. TIPS is certified by the Bureau as a server training program.

2. 21 Reasons is not, and has never been, certified by the Bureau as a server training program.

The Bureau also informed the parties that it had conducted a search for any agency

records showing that the Sangillo's servers testifying at hearing had received server

training prior to the end of the licensing period. The Bureau explained that it had

found no such records and did not intend to take official notice of this negative

result. Both parties filed objections to the Bureau's notice: Sangillo's objected to the

materiality of the noticed facts while the City objected to the Bureau's decision not

to take notice of its inability to locate relevant server training records.

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The Bureau's decision to take official notice and conduct a search of its

records resulted from a dispute at hearing over the City's finding below that

Sangillo's had not obtained Bureau-certified server training for two of its servers.

The City based its finding on certain testimony by Sangillo's manager, Kathleen

Sangillo, which the City construed as an admission that the servers had not

received the required training. At hearing before the Bureau, Sangillo's attacked

the City's finding by contending that (1) the City misconstrued Ms. Sangillo's

testimony below and (2) all of Sangillo's servers had in fact received training from

an entity called 21 Reasons.

Sangillo's Objection: Sangillo's does not dispute the accuracy of the fact that

21 Reasons is not a Bureau-certified training program, but rather its materiality.

Sangillo's contends that, to prevail on the server-training issue, all it needs to prove

is that the City misconstrued Ms. Sangillo's testimony, and thus lacked an

evidentiary basis for its finding that two servers had not been properly trained.

Moreover, any post-hearing inquiry by the Bureau into whether or not Sangillo's

servers in fact received the required training is, according to Sangillo's,

"inappropriate."

Sangillo's materiality objection raises a basic question about the nature of the

Bureau's inquiry in an appeal pursuant to§ 653(3). In the context of a de novo

hearing in which the denied applicant bears the burden of proof, what must the

applicant show in order to prove that the decision below was "without justifiable

cause"? Is it enough, as Sangillo's contends, to prove that the City lacked sufficient

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evidence for its finding that Sangillo's servers were not properly trained? Or must

Sangillo's affirmatively prove that its servers were, in fact, properly trained?

Ullis v. Inhabitants of Town of Boothbay Harbor provides the answer. In that

decision, the Law Court interpreted § 653(3)(B)'s requirement that the denied

applicant show that the municipality's decision was "without justifiable cause" as

requiring the Bureau to uphold a city's decision to deny a liquor license "whenever

that denial in fact was proper under title 28-even if the reasons stated by the

officers in their decision would not support the denial." Ullis, 459 A.2d at 157. The

implication of this holding is that it is not enough for the aggrieved applicant to

show that the municipality made an error in considering the evidence that was

presented to it. Rather, the applicant must prove on appeal that the facts do not

support denial of the license on the grounds cited by the City-or , to use the words

of the statute, that City's decision to deny on the basis of a failure to train servers

was not only unjustified, but "[un]justifiable."

Thus, the only way for Sangillo's to prove that the City's reliance on

§ 653(3)(G) was "without justifiable cause" was to prove at hearing that its servers

had in fact been properly trained. In light of Ms. Sangillo's testimony, the status of

21 Reasons as a Bureau-certified training program is material to whether Sangillo's

met its burden.

The City's Objection: The City also filed an objection to the Bureau's notice.

The City objects to the hearing officer's decision not to take notice of the (negative)

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results of its search for server-training records for the three servers who testified at

hearing.

The Bureau decided to search for server-training records because it collects

and maintains such records in the ordinary course of its duties-thus making such

records an appropriate subject for official notice, see 5 M.R.S. § 9058-and because

any records showing that Sangillo's servers were properly and timely trained would

be material to whether the City had justifiable cause to deny Sangillo's application

on the basis of 28-A M.R.S. § 653(2)(G). It is less clear, however, that the Bureau's

inability to locate such records is an appropriate subject for official notice. While

the inability to locate such records could indicate that the servers in question had

not received training, it might also be explained by, for example, the failure of a

training program to report the training to the Bureau. Admitting the negative

search result into evidence without providing Sangillo's with an opportunity to

probe the significance of the result through discovery or witness examination would

arguably implicate Sangillo's right to be heard on all issues. See 5 M.R.S. § 9055.

The Bureau therefore exercises its discretion to decline to take official notice of its

records search.

The City suggests in the alternative that the hearing could be reopened so

that the negative search results could be admitted into evidence through testimony.

This request is denied. First, the City has not shown cause as to why it could not

have requested that the Bureau conduct a search of its records prior to hearing.

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Second, the Bureau's affirmance of the City's decision on all grounds, as discussed

below, renders the City's request moot.1

Thus, for the reasons discussed above, the Bureau hereby takes official notice

of the two facts stated in the Notice of Intent to Take Official Notice.

Finally, Sangillo's asks the Bureau to "consider and r ecognize that BC

Consultants is a certified serving training program that puts on training seminars

in conjunction with 21 Reasons." This proposed fact is within the specialized

knowledge of the Bureau, essentially accurate, and material to (though not

dispositive of) the server training issue. Thus, to ensure a complete factual r ecord

on t his issue, the Bureau exercises its discretion to take notice of the following

additional fact: BC Consultants is a Bureau-certified server training program that

has a relationship with 21 Reasons and conducts server trainings in the greater

Portland area at the request of 21 Reasons.

Ruling on Objections

In its post-hearing brief, Sangillo's raises two legal contentions relating to the

procedures employed by the City in the proceeding below.

First, Sangillo's asserts that the City violated its due process rights in the

March 17th hearing before the City Council by not offering Sangillo's an

1 The City also requests that a paragraph in the Notice of Intent to Take Official Notice be expanded to describe in more detail the evidence at hearing on the server training issue. The Bureau declines this request. The only purpose of the Notice was to provide the parties with a meaningful opportunity to object to the Bureau officially noticing the listed facts. It is not a proper vehicle for making formal or informal findings regarding the evidence presented at hearing.

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opportunity to cross-examine members of the PPD who spoke against Sangillo's

renewal application.2

It is far from clear that Maine law bestows upon liquor license applicants the

property interest required to assert due process violations. See Munjoy Sporting &

Athletic Club v. Dow, 2000 ME 141, ii 11, 755 A.2d 531 ("Generally, licenses do not

create a protected property interest when broad discretion is vested in a state

official or agency to deny or approve the application."); 28-A M.R.S. § 654 (listing

broad factors to be considered in grant or denial of a license). But, if due process

applies, it did not give Sangillo's a right to cross-examine speakers at the City

Council hearing. Due process is a flexible concept, and it does not include a right to

cross-examination in every administrative context. See In re Maine Clean Fuels,

Inc., 310 A.2d 736, 746 (1973). Rather, the question is whether the administrative

process as a whole complied with the "fundamentals of fair play." Id. Here,

Sangillo's had a full opportunity in the de nova hearing before the Bureau to

subpoena and cross-examine all those who spoke before the City Council. Although

Sangillo's faced a higher burden in the Bureau hearing, there is no doubt that it

retained a meaningful opportunity to prove that it was qualified for a license. See

28-A M.R.S. § 653(3). Coupled with Sangillo's opportunity before the City Council

to be heard and to respond to the evidence presented by the PPD (see City's Ex. 6 at

6), the process as a whole fully complied with the flexible mandate of due process.

2 The parties dispute whether an opportunity for cross examination was in fact provided before the City Council. (See 1117/14 Tr. at 368; Sangillo's Post Hearing Br. at 2.) For purposes of the discussion that follows, the Bureau assumes without deciding that cross-examination was not permitted in the hearing below.

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Sangillo's also reiterates its hearing objection to the admissibility of the

City's written decision. (See City's Ex. 6.) Sangillo's argues that the written

decision was prepared by the City's attorney and does not accurately reflect the

deliberations by the council members themselves. This objection remains meritless.

Regardless of who prepared the written decision, by affixing their signatures to it,

the five councilmembers voting to deny the application endorsed and adopted its

findings and conclusions. (City's Ex. 6 at 12.) What is more, the entire council

formally voted to adopt the Decision and Order as the "final written decision of the

City Council." (City's Ex. 4.)

Findings of Fact

1. Sangillo's is a bar located at 18 Hampshire Street in Portland. (1116/14

Tr. 37.) Sangillo's is currently licensed as a Class A lounge. (City's Ex. 5 at 1.) Its

most recent full licensing period was February 26, 2013, to February 26, 2014

(hereinafter, "the licensing period"). (City's Ex. 5 at 8; City's Ex. 6 at 1; 1116/14 Tr.

43.)

Findings Relating to Alleged Incidents of Breach of the Peace, Disorderly Conduct a.nd Violations of La.w

2. Sangillo's is located in the India Street neighborhood of Portland, a

mixed-use neighborhood that includes both multi-unit housing and commercial

establishments. (11/6/14 Tr. 38-39, 127, 182, 214, 297; Sangillo's Ex. 2.) Although

there are restaurants in the India Street neighborhood licensed for on-premises

liquor sales, Sangillo's is the only bar. (1116/14 Tr. 38.)

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3. Sangillo's is located several blocks from the Old Port. (1116/14 Tr. 39-

40.) Although some visitors exiting the Old Port at the end of the night do pass

near Sangillo's (1116/14 Tr. at 297), the primary exit routes used by visitors are to

the north and west, and do not go through the India Street neighborhood. (1116/14

Tr. 42.)

4. Sangillo's closes at 1 a.m . (11/6/14 Tr. 103.) P atrons then have an

opportunity to leave, and generally do so by around 1:15 or 1:20 a.m. (Id.) At that

time of night, few people are outside other than those leaving the bars. (1116/14 Tr.

107).

5. Homeless individuals may be seen throughout the India Street

neighborhood singly and in small groups. (1116/14 Tr. 108, 123-24.) Homeless

individuals tend to congregate at the Rite Aid Pharmacy and the St. Vincent de

Paul Soup Kitchen on Con gress Street , and the Milestone shelter on India Street.

(11/6/14 Tr. 108, 123-24, 182-14.) The homeless do not typically congregate in the

immediate vicinity of Sangillo's. (1116/14 Tr. 108, 184, 186.)

6. Lieutenant Gary Hutcheson is assigned to the uniformed operations

patrol division of the PPD. (1116114 Tr. 32.) As part of his duties, Lt. Hutcheson

provides feedback to the City wit h regard to liquor license renewals. (1116/14 Tr.

33- 34.) In cases in which he is concerned about a pending renewal application, he

conducts a review of computer-aided dispatch ("CAD") screens and police reports

potentially relating to the licensed establishment and prepares a written report for

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command staff at the department, who then formulate a recommendation to the

City Council on the application. (11/6/14 Tr. 34.)

7. When Sangillo's license was up for renewal in February, 2014, Lt.

Hutcheson conducted a review of police records from the previous year and prepared

a report in which he recommended denial of Sangillo's renewal application. (1116/14

Tr. 36, 43-46.) The report identified a total of 24 incidents between February 26,

2013, and January 30, 2014, that it attributed to Sangillo's: 8 calls for service

relating to the operation of the premise, 2 liquor law violations, and 14 incidents of

breach of the peace. (City's Ex 5 at 20; 11/6/14 Tr. 35, 43.)

8. The Portland City Council held a hearing on the renewal application

on March 17, 2014. (City's Ex. 6 at 1.) At the hearing, Police Chief Michael

Sauschuck and Assistant Chief Vernon Malloch presented Lt. Hutcheson's report

and the case for the PPD's recommendation for denial. (Id. at 3.) After the hearing,

Assistant Chief Malloch submitted to the council a supplemental memorandum,

dated, March 25, 2014, which identified specific incidents that the PPD contended

met the legal standard for license denial. (City's Ex. 5 at 170-71.) The March 25

memo contained one new "breach of the peace" incident (from June 30, 2013), but

otherwise cited incidents that had already been cited in Lt. Hutcheson's original

report.

9. The written decision of the City Council, signed by the five members

voting to deny the application, finds that "the incidences and calls for service

described in Lt. Hutcheson's license review report dated February 20, 2014 and the

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PPD additional memorandum dated March 25, 2014, were caused by patrons of

Sangillo's Tavern and constitute breaches of the peace, disorderly conduct, and

other violations of the law in the vicinity of the licensed premises." (City's Ex. 6 at

7.)

10. The Council's decision states generally that the Council based its

finding of a causal connection between the incidents and patrons of Sangillo's on the

number of incidents in the vicinity of Sangillo's, a recent spike in such incidents,

and the relative geographic isolation of Sangillo's Tavern from other bars in the

City. (Id. at 9.)

Specific Incidents of Record Relied Upon by the City

May 18, 2014 Incident

11. On May 18, 2014, a patron of Sangillo's reported to police that she had

been assaulted the previous night in the parking lot of Sangillo's. The victim

reported that, while she was patronizing Sangillo's with a friend, the friend had

gotten into an argument with an unknown male. The victim then left the bar with

her friend, but later returned. Upon arriving at the Sangillo's parking lot, the

victim reported that she was assaulted by a second male, who was present in the

parking lot with the male with whom the victim's friend had argued. The assailant

fled after other people in the parking lot intervened. (City's Ex. 5 at 120-22.)

12. The assault occurred at approximately 1 a.m. (City's Ex. 5 at 119.)

13. Although Lt. Hutcheson conceded on cross-examination that the police

records in evidence do not disclose whether the assailant was a patron (1116/14 Tr.

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98), the circumstances of this incident-in particular, that the assault occurred in

the parking lot near Sangillo's, that it occurred at closing time, that the assailant

was the companion of a known patron, and that the assault was connected to an

argument earlier in the evening between two known patrons- indicate that it is

likely that the assailant was also a Sangillo's patron exiting the bar at closing time.

(City's Ex. 5 at 119-22.)

14. The assault occurred in the vicinity of Sangillo's. (City's Ex. 5 at 120-

21.)

June 15, 2013 Incident

15. The CAD report records a June 15, 2013 incident in which units were

dispatched at 1:24 a.m. due to a group of "at least 5" people "screaming in the

parking lot" near Sangillo's and possibly fighting. (City's Ex. 5 at 116.)

16. The timing of the disturbance and its proximity to Sangillo's indicates

that it is likely that those causing the disturbance were Sangillo's patrons exiting

the bar at closing time. (Id.)



dispatched at 1: 10 a.m. due to a "group of 20 fighting in parking lot" near Sangillo's.

(City's Ex. 5 at 28.)

18. Although Lt. Hutcheson conceded on cross-examination that the police

records in evidence do not disclose whether the fighters were patrons of Sangillo's

(11/6/14 Tr. 101), the timing of the fight and its proximity to Sangillo's indicates

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that it is likely that some or all of those fighting were Sangillo's patrons exiting the

bar at closing time. (City's Ex. 5 at 28.)

19. The fight occurred in the vicinity of Sangillo's. (City's Ex. 5 at 28.)



dispatched at 1:21 a.m. due to a "group of 12-15 people out on the street, ... yelling

and screaming." (City's Ex. 5 at 28.) The CAD report further indicates that the

individuals were intoxicated (id.; 1116/14 Tr. 103) and describes the individuals as

"just people that left the bar." (City's Ex. 5 at 28.)

21. The CAD report establishes that the described individuals were

Sangillo's patrons leaving the bar at closing time and engaging in yelling and

screaming in the vicinity of Sangillo's. (City's Ex. 5 at 28.)

June 30, 2013 Incidents

22. On July 10, 2013, a Sangillo's server reported to police that she had

been punched in the face and knocked unconscious by a Sangillo's patron early in

the morning of June 30, 2013. The server reported that the patron punched her

after she encountered him carrying a shot glass of liquor outside and informed him

that he needed to bring the drink back inside the bar. The server further reported

that, after police arrived and dispersed a crowd of the assailant's companions, who

were arguing with the server and the police, a cousin of the assailant, after being

blocked from re-entering the bar, attempted to punch and then "spit all over" the

server. (City's Ex. 5 at 146.)

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23. CAD reports corroborate both incidents. According to the CAD report,

police were dispatched at 1:04 a.m. due to "15-20 physicaly [sic] fighting, one person

on the ground." The CAD report also notes that police were dispatched again at

1:20 a.m. due to "2 women fighting in the street," a description consistent with the

altercation between the server and the assailant's cousin. (City's Ex. 5 at 28.)

24. The assailant was a patron of Sangillo's. (City's Ex. 5 at 146.)

25. The assailant's cousin was a patron of Sangillo's. (Id.)

26. Members of the group dispersed by police were patrons of Sangillo's.

(Id.)

27. The assault and the subsequent altercation occurred in the vicinity of

Sangillo's. (City's Ex. 5 at 146-47.)

July 7, 2013 Incident

28. The CAD report records a July 7, 2013 incident in which units were

dispatched at 1:04 a.m. due to "8 people fighting in front of here." The report

indicates that a warning was issued. (City's Ex. 5 at 29.)

29. The timing of the fight and its proximity to Sangillo's indicates that it

is likely that those fighting were Sangillo's patrons exiting the bar at closing time.

(Id.)

30. The fight occurred in the vicinity of Sangillo's. (Id.)

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July 16, 2013 Incident

31. The CAD report records a July 16, 2013 incident at 1:31 a.m. in which

the caller reported to the dispatcher that an "SUV pulled up and almost hit

somebody," and "now there are people kicking another guy." (City's Ex. 5 at 30)

32. The incident occurred directly in front of Sangillo's . (1116/14 Tr. 143.)

33. The timing of the incident and its proximity to Sangillo's indicates that

it is likely that some those fighting were Sangillo's patrons exiting the bar at closing

time. (City's Ex. 5 at 30; 1116/14 Tr. 142-43.)

November 23, 2013 Incident

34. On November 23, 2013, at approximately 12:57 a.m., police were

dispatched to Sangillo's at the request of a Sangillo's server. (City's Ex. 5 at 138.)

The CAD report indicates that a woman was "screaming at the bouncer" and "trying

to break a window." (City's Ex. 5 at 111-112.) The PPD incident report and the

witness statement from the Sangillo's door person indicate that the woman was a

patron of Sangillo's who became upset and created a disturbance inside the bar

when the door person refused to admit her underage and intoxicated friend. (City's

Ex. 5 at 138, 141.) By the time police arrived, the patron was also "upset because

she was not allowed enter again and that the bouncer had not returned her ID."

(City's Ex. 5 at 138.) The patron was hostile to police when they arrived, and was

ultimately forcibly arrested and charged with disorderly conduct and refusing to

submit to arrest. (City's Ex. 5 at 138.)

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35. The report indicates that the patron's conduct drew a "small crowd."


36. According to the door person's statement, the patron was intoxicated at

the time of her disorderly conduct. (City's Ex. 5 at 142.) The PPD incident report

indicates that the incident was "alcohol related." (City's Ex. 5 at 136.)

37. The individual engaging in the disorderly conduct was a patron of

Sangillo's. (City's Ex. 5 at 138, 141.)

38. The conduct occurred both inside Sangillo's and in the immediate

vicinity of Sangillo's. (City's Ex. 5 at 138, 141.)

January 28, 2014 Incident

39. On January 28, 2014, at approximately 1:21 a.m., three gunshots were

fired outside of Sangillo's. (City's Ex. 5 at 45.) One person was shot in the back,

directly in front of Sangillo's. (City's Ex. 5 at 50, 63, 84.) Another bullet hit a car

parked in front of the bar. (City's Ex. 5 at 50.) At the time the shots were fired, a

PPD officer observed three males running "from directly in front of Sangillos."


40. Multiple witnesses reported witnessing an argument inside Sangillo's

before to the shooting. (City's Ex. 5 at 85, 87, 88.)

41. It was approximately 15°F at the time of the shooting. (City's Ex. 5 at

50.)

42. In light of the argument inside the bar, the proximity of the shooting to

Sangillo's, the cold weather, and officers' observations of suspects running away

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from Sangillo's after the shooting, it is likely that the shooter was a patron of

Sangillo's who was exiting with other patrons at closing time.3

Remaining Incidents

43. In addition to the incidents discussed above, Lt. Hutcheson's report

also attributes incidents on the following dates to Sangillo's: March 15, 2013; May

7, 2013; May 27, 2013; July 6, 2013; July 13, 2013; July 21, 2013; August 4, 2013;

August 18, 2013; August 30, 2013; August 31, 2013; October 26, 2013;4 and January

10, 2014. (City's Ex. 5 at 20-22.) Sangillo's demonstrated at hearing that each of

these incidents lacks one or more element required by 28-A M.R.S. § 653(2)(D).5

Findings Relating to Title 28-A Violations

44. Among the incidents described in Lt. Hutcheson's report are two

incidents involving minors inside Sangillo's. (City's Ex. 5 at 20-21.)

October 26, 2013 Incident

45. On October 26, 2013, a Sangillo's server served alcohol to a 19-year-old

individual, who was working with a liquor enforcement detail. (City's Ex. 5 at 127.)

3 Sangillo's objected to Lt. Hutcheson's testimony with regard to this incident on the basis that his testimony was informed by his knowledge of confidential investigatory information regarding the identity of the suspects. (1116/14 Tr. at 63.) And, indeed, it seems clear that Lt. Hutcheson's opinion that the shooter was a Sangillo's patron was based in part on such confidential information. (See 1116/14 Tr. at 69-70.) In making the above finding, however, the Bureau relies solely on the redacted police reports, which by themselves establish that the shooter was very likely a Sangillo's patron.

4 As discussed in the next section, there was a second incident on October 26, 2014, (furnishing alcohol to a minor) that the City properly attributed to Sangillo's.

5 Notably, except for the July 6 and January 10 incidents, the City in its post-hearing brief does not contend that these incidents meet the requirements of 28-A M.R.S. § 653(2)(D). (See City's Post Hearing Br. at 9-10.)

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According to the minor's written statement, he and a plainclothes police officer

walked into the bar, each ordered a beer, and were served. (City's Ex. 5 at 129.)

The underage individual then paid for both beers. (Jd.) The server did not ask for

the underage individual's identification. (City's Ex. 5 at 127.)

46. The police officer accompanying the minor served Sangillo's with a

Notice of Liquor License Administrative Violation and Short Form Complaint.

(City's Ex. 5 at 127, 135.) The alleged violation has not yet been adjudicated;

however, the server, Janessa Emmerton , admitted at hearing that it occurred.

(11/6/14 Tr. 28, 288-89.)

January 28, 2014 Incident

47. One of the suspects in the January 28, 2014 shooting was a 19-year-old

individual. (City's Ex. 5 at 105.) According to the police report, Sangillo's security

camera footage shows this individual inside Sangillo's earlier in the evening. (City's

Ex. 5 at 105.)

48. Based on this incident, the police served Sangillo's with a summons for

the offense of "Allowing a Minor to Remain on the Premise of a Lounge." (City's Ex.

5 at 108.) There is no evidence that the alleged violation has been adjudicated.

49. The police records do not indicate whether the minor was accompanied

by a parent or guardian while inside Sangillo's. (1116/14 Tr. 173-74.)

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Findings Relating to Server Training

50. In a March 3, 2014 meeting between Kathleen Sangillo and Assistant

Chief Malloch, Sangillo indicated that she did not know what seller/server training

was. (11/6/14 Tr. 214, 217.)

51. In a March 6, 2014 letter to the PPD, Sangillo's previous counsel

proposed, as one of several "additional operational modifications," that "[a]ll bar

staff and servers will participate in a server training program."6 (City's Ex. 5 at 19.)

52. The above communications with the PPD indicate that, during the

licensing period, Sangillo's did not have a policy of ensuring that its servers

obtained seller/server training.

53. In its written decision, the City concluded that there were independent

grounds to deny Sangillo's application under 28-A M.R.S. § 653(2)(G), which

requires licensees to obtain server training for their servers in a program certified

by the Bureau. The council found, based on testimony of Kathleen Sangillo, that

two of Sangillo's servers had not received the required training. (City's Ex. 6 at 9.)

6 Sangillo's belatedly objects to the admissibility of the letter on the theory that "submissions by counsel are not evidence." (Sangillo's Post Hearing Brief at 4.) But such statements have been ruled admissible non-hearsay even under the federal rules of evidence when offered against the speaker's client. See, e.g. , United States v. Harris, 914 F.2d 927, 931 (7th Cir. 1990). Here, written promises by Sangillo's counsel to make changes to Sangillo's operating procedures are probative of Sangillo's operating procedures prior to the implementation of the changes, and are, further, "the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs." 5 M.R.S. § 9057(2). The letter is therefore admissible.

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54. Following issuance of the City's decision, Sangillo's submitted a sworn

affidavit from Kathleen Sangillo in which she clarified her testimony about server

training. (Sangillo's Ex. 4.)

55. According to Sangillo, she had understood the questioner at hearing to

have been asking whether her servers attended a particular training program called

TIPS, and, thus, her intended testimony was that the two servers had not received

training from that specific program. (Sangillo's Ex. 4 (Sangillo Aff. ~ 3).)

56. Sangillo stated that, at the time of her testimony before the Council on

March 17, 2014, her entire staff had received server training from "21 Reasons."

(Sangillo's Ex. 4 (Sangillo Aff. ~ 3).) The affidavit does not further specify when the

alleged training occurred. (Id.)

57. 21 Reasons is not, and has never been, certified by the Bureau as a

server training program. (See Ruling on Official Notice, supra.)

58. Although 21 Reasons does have a relationship with a certified server

training program called B.C. Consulting (id.) , the record evidence does not establish

by clear and convincing evidence that all Sangillo's servers obtained training from

B.C. Consulting prior to the start of the licensing period or within 90 days of their

employment by Sangillo's.

Management and Operational Concerns

59. During the licensing period, Sangillo's did not require a manager or

assistant manager to be on premises during the evening hours. (Sangillo's Ex. 4

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(Sangillo Aff.); 1116/14 Tr. 201, 257; City's Ex. 5 at 19.) The manager, Kathleen

Sangillo, typically left the bar around 5 p.m. each day. (11/6/14 Tr. 215, 257.)

60. Sangillo's did not employ a door person until it was recommended by

the PPD in July, 2013. (11116/14 Tr. 78, 201, 288, 294.) At that point, it began

employing a door person to work Friday and Saturday nights. (11/16/14 Tr. at 215,

294; City Ex. 5 at 18.) Sangillo's did not begin utilizing a door person every night

until after the licensing period ended. (1116/14 Tr. 215; City's Ex. 5 at 18.)

61. There were evenings during the licensing period in which the only

Sangillo's employee on the premises was a server. (1116/14 Tr. 288, 291.)

62. Sangillo's management practices were atypical for bars in the area.

Area bars typically have a manager on duty in the evening hours and employ a door

person to check identification and monitor the floor. (11/6/14 Tr. 215-16.)

63. In the last licensing period, the number of calls for service to Sangillo's

increased significantly from previous years. (1116/14 Tr. 218; City's Ex. 5 at 172.)

Conclusions of Law

Repeated Incidents of Breach of the Peace or Disorderly Conduct

1. A municipality may deny a liquor license on the grounds of "repeated

incidents of record of breaches of the peace, disorderly conduct, vandalism or other

violations of law on or in the vicinity of the licensed premises caused by persons

patronizing or employed by the licensed premised." 28-A M.R.S. § 653(2)(D).

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2. Sangillo's failed to show by clear and convincing evidence that the

following incidents relied upon by the City are missing any elements required by 28-

A M.R.S. § 653(2)(D):

a. May 18, 2013 assault outside Sangillo's;

b. June 15, 2013 breach of the peace outside Sangillo's;

c. June 22, 2013 fight outside Sangillo's;

d. June 27, 2013 breach of the peace outside Sangillo's;

e. June 30, 2013 assault outside Sangillo's;

f. June 30, 2013 fight outside Sangillo's;

g. July 7, 2013 fight outside Sangillo's;

h . July 16, 2013 fight outside Sangillo's;

i. November 23, 2013 disorderly conduct and resisting arrest inside

and in the vicinity of Sangillo's;

J. January 28, 2014 shooting outside Sangillo's.

3. The incidents listed above are sufficient in number to constitute

"repeated incidents" within the meaning of 28-A M.R.S. § 653(2)(D).

4. Sangillo's failed to prove by clear and convincing evidence that the City

was without justifiable grounds to deny Sangillo's application on the basis of 28-A

M.R.S. § 653(2)(D).

Violation of Title 28-A

5. A municipality may deny a liquor license on the grounds of "[a]

violation of any provision of [Title 28-A]." 28-A M.R.S. § 653(2)(E).

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6. It is a violation of Title 28-A for a licensee's employee or agent to sell

liquor to be consumed on the premises where sold to a minor. 28-A M.R.S.

§ 705(3)(E).

7. Sangillo's committed a violation of Title 28-A when its server sold

liquor to a minor working undercover for the PPD on October 26, 2013.

8. Although it did not actually rely upon 28-A M.R.S. § 653(2)(E) to deny

Sangillo's application, the City would have been justified in denying the application

pursuant to that provision. See Ullis, 459 A.2d at 157.

Failure to Obtain Server Training

9. A municipality may deny a liquor license on the grounds that the

applicant's servers have not completed a server training program certified by the

Bureau and required by local ordinance. 28-A M.R.S. § 653(2)(G).

10. The City of Portland has an ordinance requiring servers to complete a

server training program certified by the Bureau within 90 days of the

commencement of their employment. Portland Code of Ordinances, § 15-41 (City's

Ex. 1).

11. In light of the City's reliance on 28-A M.R.S. § 653(2)(G) as a basis for

the denial of Sangillo's application, Sangillo's was required at hearing to prove by

clear and convincing evidence that its servers had received the required training.

28-A M.R.S. § 653(3)(B).

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12. Sangillo's failed to prove by clear and convincing evidence that its

servers had been trained by a Bureau-certified training program consistent with

City ordinance by the start of the licensing period.

13. Sangillo's failed to prove by clear and convincing evidence that the City

was without justifiable grounds to deny Sangillo's application on the basis of 28-A

M.R.S. § 653(2)(G).

Management and Operational Concerns

14. In deciding whether to renew a liquor license, the municipality shall

give consideration to the character of the applicant, the location of the business, the

manner in which the business has been operated, and whether the operation has

endangered the safety of persons in or on areas surrounding the place of business.

28-A M.R.S. § 654(1).

15. The City of Portland found that "the manner in which Sangillo's

Tavern has been operated/managed has endangered the safety of persons residing

in the areas surrounding this place of business." (City's Ex. 6 at 11)

16. The City based its finding on (1) the various breaches of peace and

public safety violations listed in the two PPD memoranda, (2) the applicant's

decision to stop selling two types of liquor consumed by "so-called alleged 'trouble

makers,"' (3) the lack of an on-premise manager and the only occasional presence of

a door person after 5:00 p.m. (City's Ex. 6 at 11.)

17. Sangillo's failed to show by clear and convincing evidence that any of

the City's three bases for its conclusion were factually inaccurate.

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18. It was not unreasonable for the City to conclude, on the basis of the

repeated breaches of peace and public safety violations, the lack of an on-premise

manager in the evenings, and the only occasional presence of a door person, that

Sangillo's was managed and operated in an unsatisfactory and unsafe manner

during the licensing period.

ORDER

Based on the above Findings of Fact and Conclusions of Law, Sangillo's

application for renewal of its liquor license is hereby DENIED.

Sangillo's current temporary license shall expire 30 days from the date

of this Decision and Order unless expiration is stayed pursuant to 5

M.R.S. § 11004.

Notice of Appeal Rights

This Decision and Order is final agency action of the Bureau, within the meaning of the Maine Administrative Procedure Act, 5 M.R.S. § 8002(4). It may be appealed to the District Court in the manner provided for by 28-A M.R.S. § 653(5), 5 M.R.S. §§ 10051(3), & 11001-11008, and M.R. Civ. P. BOC. Any person or governmental entity aggrieved by this decision may initiate an appeal within 30 days of receipt of this notice. There is no automatic stay pending appeal. Application for a stay may be made in the manner provided in 5 M.R.S. § 11004.

Dated: January 16, 2015 Hallowell, Maine

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Deputy Director, Bureau of Alcoholic Beverages and Lottery Operations Designated Hearing Officer

sangillo’s.pdf

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