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HomeMy WebLinkAboutmin brd of selectmen 07192006 Present: "~I RECEIVED . . 'r~ UJ::i~.!S Or:-F ICE 06 AUG -3 AH 10: 45 MANSfiELD MASSACHUSETTS Vice Chairman David McCarter, Clerk George Dentino, Selectman Louis Amoruso and Selectman Michael McCue John O. D' Agostino, Town Manager Town of Mansfield Board of Selectmen Minutes of July 19,2006 (' The Board of Selectmen's meeting was called to order at 7:30pm, followed by the Pledge of Allegiance. Cindy McGinty, wife of9/11 victim Michael McGinty of Foxborough, was present to inform the Board and the public about the Annual Family Fun Day to benefit the McGinty Scholarship Foundation. The foundation awards two $5,000 scholarships to two college-bound high school seniors currently residing in Foxboro and Mansfield who share the same sense of community service and values as Mike. The support from people in F oxborough and Mansfield was overwhelming and Cindy wanted to give something back. Family Fun Day will take place on September 17th from 12-5 at Cocasset River Park in Foxboro, with a rain location of the Hockomock YMCA in North Attleboro. The cost is $5 per person or r $20 per family. Cindy noted that there are a lot of fun activities for families and she is hoping for a great turnout. Mr. McCarter asked how people can contact her and get involved or make a raffle donation. Cindy replied that people can call her at home (508-698-2108). Mr. McCue said that he was happy to have worked with Cindy on the selection committee for the Foxboro recipient. Mr. Amoruso suggested to Cindy that she remind the Board at the beginning of September so they can make another announcement. She added that flyers are going to be posted in local businesses. The Board thanked Cindy for coming in. Items on the July 19th Light Commissioners Meeting agenda included the following: o Financial Statements for May 2006 o Financial Impact of ISO Decision Regarding Canal Generating Plant o MMED Credit Rating o PILOT Payment Summary by Massachusetts Light Departments Official meeting minutes are taken by the Light Department. r Board of Selectmen Minutes of July 19,2006 1 I r (' There were no questions and comments. Individuals present for the liquor hearings were: Atty. Christopher Petrarca, Petrarca Law Offices, LLC Zotico Vazquez, Owner, El Azteca Mexican Restaurant Maritza Marti, Translator for Mr. Vazquez Atty. Robert Mangiaratti, Volterra, Goldberg, Mangiaratti & Jacobs Arthur O'Neill, Chief of Police Sgt. Robert Martin, MPD Officer Roy Bain, MPD Mr. McCarter explained the procedure of the hearing and noted that there were two separate incidents on two different dates. Atty. Mangiaratti created a formal record and introduced documents for the record. He then explained the procedure of the hearing to the Board and pointed out that the Board is the licensing authority and it has the ability to revoke or suspend a liquor license. r He began by stating that the notice for the hearing was sent certified mail to Mr. Zotico Vazquez, which outlined the charges: furnishing alcohol to minors (three counts); failure to post penalties for operating a motor vehicle under the influence of alcohol; failure to display liquor license in a conspicuous place; sale or delivery of alcohol to an intoxicated person; and allowing an illegality on the premises in violation of204 CMR 2.05 (2). The illegality was that one of the workers was an undocumented worker, as he had no green card. The sections of statutes are referenced in the letter to Mr. Vazquez, as well as the Chief s letter to the Board. Atty. Mangiaratti asked Police Chief Arthur O'Neill to introduce himself and then asked Chief O'Neill to outline the events of January 21 st. Chief O'Neill noted that Sgt. Robert Martin and Officer Roy Bain were present for the hearing. On the evening of January 21,2006, police officers were detailed to the area of the El Azteca Mexican Restaurant and were notified that there was a young man urinating in the bushes. When the officers arrived, it was discovered that there were three underage individuals sitting at the bar. One of the young men had wood chips, dirt and debris, indicating that he had been on the ground. He was taken into protective custody after a minor struggle. The other two were released to responsible adults after being taken to the police station. The young man taken into protective custody admitted that he had 4 or 5 beers; the second young man admitted to having two Bud Lights and a margarita and the third admitted to having two beers and one margarita. He noted that the young men did not show ID nor were they asked. The bartender was Luis Mendez, who Sgt. Martin and the officers had a conversation with. During the conversation, it r was discovered that he did not have a green card and no proof of citizenship and admitted to being an undocumented immigrant. Mr. Vazquez was at his other establishment, came over andt Board of Selectmen Minutes of July 19,2006 2 . , r spoke with Sgt. Martin. Sgt. Martin asked Mr. Vazquez why the license and penalties were not posted and Mr. Vazquez replied that he just received it, although the envelope was post marked in late December. Chief O'Neill noted that Mr. Vazquez told Sgt. Martin that Mr. Mendez was just a friend helping out, but then admitted that he was an employee. Chief O'Neill pointed out the definition of the delivery of alcoholic beverages prima facie evidence (Chapter 138, s. 41 - the delivery of alcoholic beverages in or from a building. Such delivery to a person not a resident therein shall be prima facia evidence that such a delivery is a sale) as well as alcoholic beverages (Chapter 138 s. 1 - any liquid intended for human consumption as a beverage and containing ~ of 1 percent or more of alcohol by volume at 60 degrees Fahrenheit). Town Counsel asked the Chief to go over the state law which involves posting penalties. Town Counsel then went over the charges: furnishing alcohol to minors (three counts) in violation of M.G.L. c. 138, ~34; failure to post penalties for operating a motor vehicle under the influence of alcohol in violation ofM.G.L. c. 138, ~ 34D; failure to display liquor license in a conspicuous place in violation of 204 CMR 2.10 (10); sale or delivery of alcohol to an intoxicated person in violation ofM.G.L. c. 138, ~69; and allowing an illegality on the premises in violation of204 CMR 2.05 (2). r Mr. McCarter noted that this is a first incident, although there are multiple violations. Mr. McCue asked if the charges for undocumented workers are a federal offense. Chief O'Neill replied that state and local police have no authority but have a duty to report it. Town Counsel noted that there are no sanctions on the local level and Chief O'Neill noted that as peace officers, they have a duty to inform the Board. Mr. McCue asked how long this establishment has had a liquor license and the Chief replied that it has been several years. Mr. Amoruso asked if it was established if the bartender was TIPS trained and Chief O'Neill replied that it was never established. Sgt. Robert Martin, Mansfield Police Department, was asked by Atty. Mangiaratti to speak to the issue of a field sobriety test. He was called to the scene, where he found three young men seated at the bar with drinks in front of them. One of the individuals was more intoxicated than the other two. Sgt. Martin noted that there was an extremely strong smell of alcohol on him and the young man had somewhat slow speech. He noted that the officers did not give him a field sobriety test at the scene, but one was given at the police station. He was given 4 sobriety tests at the station: one to recite the alphabet, which he passed; the second was to touch his nose with his arms outstretched, which he failed; the third was to lift his feet off the ground for a period of time, which he also failed; and the last test was the Horizontal Gaze Nystagmus test, which he also failed. Mr. Dentino asked Sgt. Martin if he asked the individuals had been there before and Sgt. Martin replied that they stated in their statements that they had never been there before. Mr. Dentino asked if anyone spoke to the owner about the bartender being there illegally. Sgt. Martin noted that he and Officer Bain spoke to the owner but he does not recall speaking to the owner about (' the status of the owner. We had told the owner that the bartender told the officers that he was illegal. Mr. Dentino asked if any identification was presented to the police officers to verify the Board of Selectmen Minutes of July 19,2006 3 r young men's identity. Sgt. Martin replied they had no false identification and noted that two of the young men had their parents called at the station. After reviewing the police report, Sgt. Martin pointed out that one of the individuals produced a license which stated that he was not 21. Mr. Dentino asked if the bartender produced any identification and Sgt. Martin replied that he did not and believes that none of the employees had any documentation on them, with the exception of a friend visiting. He further noted that the young man taken into protective custody did not provide a written statement as he was not cooperative. r Atty. Christopher Petrarca, attorney for Mr .Vazquez, asked Sgt. Martin several questions about the events surrounding the evening, including documenting the age of the two other young men. Atty. Petrarca asked if Sgt. Martin asked the young man to go outside and Sgt. Martin replied that he did and that the young man did produce his wallet. Atty. Petrarca asked if the other two young men were asked for identification and Sgt. Martin noted that the written statements from the two young men state that they are twenty years of age. He then asked Sgt. Martin if he pat frisked the young men and Sgt. Martin replied that he does not recall ifhe did or another officer did. Atty. Petrarca asked if Sgt. Martin witnessed the sale or transaction and Sgt. Martin replied that he did not. He noted that the bartender did not ask for identification. Atty. Petrarca asked if it is possible that the waiter could have served them. Atty. Petrarca asked if Sgt. Martin is familiar with the layout of the restaurant and he replied that he is familiar. Sgt. Martin pointed out that he saw no food at the bar. Atty. Petrarca references the statements from two of the young men and Chief O'Neill pointed out that the statements only state that they had never been in that bar. Atty. Petrarca asked Sgt. Martin if he ever questioned the credibility of the three individuals and Sgt. Martin replied that the officers went by what they saw and were told by the three individuals and the bartender. Atty. Petrarca asked if it unusual that the young man urinated outside and not in the restaurant's bathroom and Sgt. Martin replied that it was. Atty. Petrarca suggested that the restaurant was probably busy on that night, a Saturday, and Sgt. Martin replied that there was no one else in the restaurant at the time he and the other officers arrived. Atty. Petrarca questioned Sgt. Martin as to when the three young men entered the restaurant. Atty. Petrarca asked Sgt. Martin if has visited the restaurant since the incident and Sgt. Martin replied that he has visited once. Atty. Petrarca then asked ifhe has checked restaurant patrons for identification and Sgt. Martin replied that he has checked IDs. He further added that he watches all of the liquor establishments. Mr. Amoruso asked Sgt. Martin if the same bartender is present since this incident and he replied that he has seen the same bartender there behind the bar. Atty. Mangiaratti asked Officer Roy Bain to step up to the podium and asked him to recount the events of the nights as well as the ages of the three young men. Officer Bain was approached by a female in the parking lot, stating that a drunken man had just gone back into the restaurant and Officer Bain and Pepicelli found the young man at the bar. He noted that there were empty beer bottles on the bar and a strawberry margarita. Atty. Mangiaratti asked Officer Bain if he independently confirmed the ages of the three individuals and the officer replied that he did utilizing information from Registry of Motor Vehicles. Officer Bain stated that all three subjects were under the age of21. Atty. Petrarca asked Officer Bain if he physically looked to see if they r- had false IDs. Officer Bain said that the individuals agreed to empty their pockets and then padded them down checking for false IDs. Atty. Petrarca asked if Officer Bain spoke to the Board of Selectmen Minutes of July 19, 2006 4 r bartender about his illegal status. Officer Bain replied he did and that he was not given a Social Security number. He further stated that Mr. Vazquez told him that his accountant would provide that information. Mr. Dentino asked Officer Bain about where the license and penalty poster. Atty. Petrarca admitted that the license was not posted by the owner. It is now posted by the cash register. Mr. Dentino asked Officer Bain about the reporting of the person urinating in the bushes. Officer Bain replied that he encounted a female in the parking lot who told him of the man urinating but he is not sure if it is the same person who contacted dispatch, but that the person urinating fit the description. Mr. McCarter asked if Atty. Petrarca would like his client, Zotico Vazquez, to speak. Atty. Petrarca asked his client ifhe did not have his license posted and through the interpreter, Maritza Marti, he replied that he had just received it in the mail and that the expired license was posted. Atty. Petrarca asked if the bartender was TIPS certified and Mr. Vazquez replied yes. Atty. Petrarca asked ifhis staff is trained in checking IDs and Mr. Vazquez replied that he has trained his waitstaff and bartenders to check IDs. Officer Bain pointed out that the common victualler license was posted on the wall and that the expired liquor license was behind the common victualler license. Mr. Dentino asked Mr. Vazquez if he brought in proof that the bartender was TIPS trained and he replied that he did not. r Mr. McCue asked Atty. Petrarca to ask his client to explain his story regarding the illegal worker. Atty. Petrarca replied that he is uncomfortable discussing that issue. Mr. McCue asked if the owner concedes to the statement that the bartender was an undocumented worker. Atty. Mangiaratti asked why the owner believes they are legal employees and Atty. Petrarca replied (after speaking with his client) that he believes so because they told him so. Mr. Dentino asked why the bartender was not present tonight and Atty. Petrarca believes that the bartender is working tonight and that he has offered testimony. Mr. Amoruso asked Mr. Vazquez ifhe asked the bartender asked for identification for those three individuals. Mr. Vazquez replied that he tells the bartender to check IDs. Mr. Amoruso asked how many other employees were there and Mr. Vazquez replied that there was a waiter and a cook. Mr. Amoruso then asked him ifthe waiter serve these people food at a booth and Mr. Vazquez replied that yes, the three of them served them a beer, a margarita and a soda. Mr. Vazquez replied that two of the three produced IDs. Atty. Petrarca summarized the events as he understood them. He noted that it is an honest, simple mistake. His client does not condone underage drinking, but there is enough doubt. Town Counsel said that he is a little troubled with the way that the hearing has gone. The evidence is clear that three young men were served alcohol. He added that the testimony of the officers state that there were no false IDs. He further stated that the testimony of the owner is conflicting. Town Counsel said that the license holder is responsible for making sure that the owner does not sell to minors. Town Counsel said that the requirements of posting the license is r- a violation and all of the details must be attended to by the license holder, as they are state law. He urges the Board to find a violation. Board of Selectmen Minutes of July 19,2006 5 (' Mr. McCarter said that he is going to break down each of the allegations. Motion: To find a violation occurred regarding the furnishing ofliquor to minors (three counts) (McCue - Amoruso) 4-0 Passes Motion: To find a violation occurred regarding the establishment selling alcohol beverages- posting penalties of OUI and failure to display liquor license in a conspicuous place (Amoruso - McCue) 4-0 Passes Motion: To find a violation occurred regarding the sale or delivery to intoxicated person (McCue - Amoruso) 4-0 Passes Motion: To find a violation occurred allowing an illegality on the premises (McCue - Amoruso) 4-0 Passes Motion: To defer the penalty on the first violation until after the discussion of the second violation (Dentino - Amoruso) 4-0 Passes Second violation hearing: r Sgt. Martin was asked by Atty. Mangiaratti to testify to the incident of April 25th involving the El Azteca Mexican Restaurant. Sgt. Martin was in a package store when he witnessed Luis Mendez, the bartender at EI Azteca, purchasing 5 bottles of liquor. He then witnessed Mr. Mendez enter the restaurant, place the paper bag containing the five bottles on top of the bar and walk to an area to the right of the bar where business records were kept. Sgt. Martin then reported the incident to the detective division. Atty. Mangiaratti noted that this incident is a possible violation ofMGL Ch. 138, section 23 and read the section of the General Laws in question. Mr. Dentino asked Sgt. Martin if he knew what happened to the bottles and Sgt. Martin replied that he did not. Town Counsel pointed out that Sgt. Martin can only report what he saw. Atty. Petrarca referred the Board to the summary of the police report by Detective Archer, which states that there is no indication that Mr. Vazquez or Mr. Mendez purchased liquors from the package store for the purpose of stocking the bar at the EI Azteca. Atty. Petrarca provided receipts to the Board showing that he purchases it from vendors. Motion: No violation (Dentino - Amoruso) 4-0 Passes Mr. McCarter said that brings us back to first incident and asked the Board's pleasure. Mr. Amoruso said that the most serious offense in his mind is the serving to a minor. He can understand perhaps about not getting a license up on the wall, but the serving offense is an egregious act. In terms of his thinking, the other items almost pale in comparison and he will not stand for it. r- Board of Selectmen Minutes of July 19, 2006 6 (' Mr. McCarter said that the facts are troubling, even though it was a first offense. This is not a typical first offense. Mr. McCue states that serving to minors is serious and he is trying to weigh the other charges as well, particularly the illegality on the premises. Mr. Dentino said that the offense is very serious and is compounded by other offenses. Mr. McCarter pointed out that the Board has guidelines. Mr. Amoruso pointed out that the employer is responsible for making sure that his or her employees are legal citizens and have the appropriate documents, which must be verified. Motion: To suspend the license ofEI Azteca for seven consecutive days beginning September 1, 2006 (Amoruso - McCarter) Mr. McCarter passed the gavel to Mr. McCue and then seconded the motion Mr. Dentino doesn't believe that 7 days is long enough. Vote: 3-1 Passes (Mr. Dentino opposed) Town Counsel said that he has typically drafted the decision letter which will be sent to the license holder and will do that for the Chairman's signature. Atty. Petrarca noted that seven consecutive days is a hardship for his client and is asking that the Board for some type of relief with respect to the penalty. r Chief O'Neill believes that the seven days is the absolute minimum and added that the situation is either arrogance or dangerous incompetence. He said that Sgt. Martin had a conversation with Mr. Vazquez in English. He said that the Board has been led to believe that Mr. Vazquez does not speak English and that the license holder responded before the translator had finished translating. Mr. Amoruso pointed out that Mr. Vazquez did speak English when he applied for his license. . Warrant No. 55 in the amount of$970,193.97 Motion: To approve (Amoruso - McCue) 4-0 Passes . Warrant No.2 in the amount of$861,682.13 Motion: To approve (Amoruso - McCue) 4-0 (Mr. McCarter abstaining from check # 353305) Passes . Warrant No.3 in the amount of $2,946,875.20 Motion: To approve (Amoruso - McCue) 4-0 (Mr. McCarter abstaining from check # 355712) Passes (' . Regular Session Minutes of July 5, 2006 Selectmen's Meeting Motion: To approve (Amoruso - McCue) 4-0 Passes Board of Selectmen Minutes of July 19, 2006 7 , T r Motion: To extend the meeting to 11: 10pm (Amoruso - McCue) 4-0 Passes Atty. Mangiaratti said that case involves the Golden Triangle has been settled and the ZBA decision stands in place and the only concession involves the erection of signs by the developer in the public way to indicate there is a residential area. Town Counsel said that the ZBA signed off at their meeting last night. Mr. D'Agostino pointed out that the settlement requires two sign locations, as indicated on the attachment to the stipulation of dismissal. Motion: To support settlement (Amoruso - McCue) 4-0 Passes Town Counsel said that the Foxboro Lodge case is very contentious and he will want to update the Board in the future as well as have a litigation update. · Hackney Driver Application - Town Manager is recommending that the application be deniedfor the driver from Foxfield Taxi Motion: To accept recommendation of the Town Manager (Amoruso - McCue) 4-0 Passes r- . Parade Permit Application for the Mansfield Shelter Pet Walk for Saturday, September 9th at 9:00am from the South Common, up the Bike Path and back to South Common (Permit approved by Police and Fire) Motion: To approve (McCue - Amoruso) for discussion Mr. Dentino asked about safety issues regarding the crossing of the street and the Town Manager replied that the Police Department will ensure everyone is safe. Vote: 4-0 Passes . Block Party Request for Samoset Street, from Bristol St. to Hodges St. for Saturday, August 12th from 12:00pm to 1 0:00pm (Request was approved by Police and Fire - emergency access, proper roadblocks and signage required) Motion: To approve subject to those conditions (Amoruso - McCue) 4-0 Passes (' Board of Selectmen Minutes of July 19,2006 8 , T r- . Letter from a resident regarding the repaving ofPrancis Avenue. Letter copied to DPW. DPW staff will be present at the August 2nd meeting to discuss the paving schedule. . Email from a resident requesting a stop sign at Church and Brook Streets. Email copied to Police. . Memo from Traffic Enforcement Officer Lance Lawson regarding the sign requests for Chilson/Pleasant Streets and Church/Brook Streets. He is not sure that stop signs are needed at these locations, but if the Board authorizes stop sign installation on Church & Pleasant, he is requestingfour way stops on all approaches for both intersections with advance notice signage prior to the intersections. Mr. McCarter suggested forwarding the comments of Officer Lawson to the people requesting the stop signs. Motion: To extend the meeting to 11: 15pm (McCue - Amoruso) 4-0 Passes . Memo from DPW Director Lee Azinheira announcing that the Highway Division will be milling and making spot repairs to parts of Franklin Street and Fruit Street over the next two weeks. (' . Memo from Beverly Estes-Smargiassi of the Community Development Office regarding a discharge of certificate not to encumber. Town Counsel has reviewed and provided this document. Motion: To sign the discharge of certificate not to encumber (Amoruso - McCue) 4-0 Passes . Memo from Beverly Estes-Smargiassi of the Community Development Office regarding a Community Development Block Grant/Grant Management Software access request. This will list Wayne Darraugh of Communities Group as the authorized user of the program because he is the principal in charge of the Mansfield Community Development Block Grant Program. Motion: To authorize the Acting Chairman to sign the request form (Amoruso - McCue) 4-0 Passes . Memo from the Town Manager regarding recent comments of Selectman Dentino in The Mansfield News. . Letter from Town Counsel regarding the indemnification ofthe Town Manager for civil rights violations. Mr. McCarter said that the Town can indemnify the Town Manager against civil rights violations. r- Board of Selectmen Minutes of July 19, 2006 9 , T T r The Town Manager reported the following: . Lee Azinheira will be the Acting Town Manager while the Town Manager is away and he is preparing a presentation on the paving schedule for the August 2nd meeting. . Discussed the amount oflocal aid, including Chapter 70, the Town of Mansfield received. . We have the auditor's reports and will have them come in for a future meeting. . He has provided draft criteria for the distribution of the Deutsche Bank gift funds and the Board can discuss when the Town Manager returns from vacation. Motion: To extend the meeting to 11 :20pm (McCue - Amoruso) 4-0 Passes r Mr. Dentino brought up the issue of the concert at Tweeter Center on Friday night and the noise levels. The Board discussed the fact that the band was performing in the parking lot. Motion: To send letter to Mr. Montgomery regarding the incident involving the band in parking lot (Amoruso - McCue) 4-0 Passes Motion: To adjourn at 11 :20pm (Amoruso) 4-0 Passes ~ Date of Approval r- '" Board of Selectmen Minutes of July 19, 2006 10 I T