Massachusetts Alcoholic Beverage Licensing Blog

A former inspector for the Massachusetts Alcoholic Beverages Control Commission (ABC) pleaded guilty last week to extortion charges and received jail time for using his position of authority to extort money from an Everett business under his jurisdiction.

Arthur Hitchman, 41, of Melrose, pleaded guilty on Wednesday, Jan. 11th, in Middlesex Superior Court to charges of Attempted Extortion, Soliciting and Accepting a Corrupt Gift to Influence an Official Act, Solicitation to Commit the Receiving of Stolen Property, and Improper Storage of a Firearm (two counts).

Middlesex Superior Court Judge Kathe Tuttman sentenced the defendant to two and one half years in the House of Correction on the attempted extortion charge and two years probation from and after on the additional charges.

The Everett Independent reports that according to authorities, the defendant contacted an individual who wanted to open a restaurant in Everett. Hitchman, who had knowledge of the prospective business owner's prior criminal conviction, indicated that because of that history the man might not be approved to receive a liquor license. However, Hitchman told the prospective business owner that he could secure approval for him if the man paid him $3,000 in cash.

On May 18, 2010, an undercover State Trooper, posing as a family member of the restaurant owner, met the defendant, confirmed the terms of his demand, and paid him $3,000 in cash.

The defendant allegedly accepted the money and told the trooper he would help secure approval of the license.

The investigation by Massachusetts State Police Special Service Section, Massachusetts State Police assigned to the Middlesex District Attorney's Office, as well as attorneys from the Middlesex District Attorney's PACT Unit, resulted in numerous conversations between Hitchman and the undercover trooper.

In these conversations, the defendant admitted that he had made changes to the affidavit filed by the restaurant owner in order to ensure the license would be approved by the ABCC, reports the Everett Independent.

Additionally, in the course of these conversations, the defendant, unprompted, offered to sell the undercover State Trooper illegal video poker machines worth more than one thousand dollars each, and suggested that the undercover State Trooper could use them to generate illegal revenues at the restaurant.

On July 13, 2010, a search warrant was executed at the defendant's residence in Melrose and, during the search, State Troopers recovered two 9mm semi-automatic pistols, one of which was loaded. Neither pistol was secured in a locked container or had a safety device of any kind.

Hitchman was arrested and arraigned that afternoon in Malden District Court where he was held on $3,000 cash bail with the conditions that he is to have no firearms and must stay away from the victim.

The SJC this week, in Commonwealth v. Parenteau, considered whether a District Court judge erred by admitting in evidence, pursuant to G.L. c. 90, § 22 (d), a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007.

The Commonwealth did not present any testimony from a witness on behalf of the registry.

The SJC concluded that the admission of the certificate violated the defendant's rights of confrontation and cross-examination under the Sixth Amendment to the United States Constitution, and that such admission was not harmless beyond a reasonable doubt. The SJC thus reversed the defendant's conviction of operating a motor vehicle after his license had been revoked for operating while under the influence of intoxicating liquor and remanded the case for further proceedings.

Out-of-state wineries are hoping this finally will be the year that they can make direct shipments to local Massachusetts consumers, as reported by the Boston Herald.

A trade group for California vintners, who've been pushing for the state for nearly 20 years, is supporting proposed legislation again this year. The bill was the subject of a public hearing last week before the Joint Committee on Consumer Protection and Licensure.

State law enacted in 2006 limits direct-to-consumer shipments to wineries that produce less than 30,000 gallons per year and haven't used a wholesaler for distribution in the last six months. It effectively prevents shipments of 98 percent of wine produced out of state, while allowing direct deliveries by all Bay State wineries.

But in January 2010, the First U.S. Circuit Court of Appeals upheld a lower court ruling that the law violates the commerce clause of the Constitution.

A similar bill died last year after being referred to the House Committee on Ways and Means. The wine industry put the blame on opposition from wholesalers.

The new bill filed by Rep. David Torrisi (D-North Anover) would require wineries to buy a state-issued license and mark boxes as requiring an adult's signature at delivery. It also limits the quantity of wine shipped to individuals to 24 cases per year.

Opposition is again expected from wholesalers.

Mass. Lawyers Weekly reports that a Boston nightclub could not be indemnified for a patron's injuries because it failed to present evidence that the man showed visible signs of intoxication earlier in the evening at a Chinese restaurant, a Superior Court judge has ruled.

The plaintiff nightclub, Felt Enterprises, argued that because defendant Chau Chow II did not monitor how much alcohol it served the patron, the Chinatown restaurant was liable under the "mode of operations" test announced by the Supreme Judicial Court in its landmark 2007 Sheehan v. Roche Bros. decision.

Even though the plaintiff in Sheehan could not establish how long a piece of food had been on the floor before it caused a slip and fall, SJC Chief Justice Roderick L. Ireland held, in an issue of first impression, that the store owner who created the foreseeably dangerous condition could still be held responsible.

But Judge Bonnie H. MacLeod-Mancuso refused to apply the SJC's test to the nightclub's case, granting summary judgment in favor of the Asian eatery.

"The Plaintiff has not presented any authority extending the 'mode of operations' doctrine from the self-service premises liability context to the dram shop liability context," she wrote. "Considering the weight of authority against the Plaintiff's position, the 'mode of operations' approach does not apply to this case, and the Plaintiff cannot show that the Defendant had notice [the patron] was intoxicated while it was serving him alcoholic beverages."

The Worcester Telegram & Gazette reports that a Superior Court judge has issued a preliminary injunction staying the License Commission's March 17 revocation of the Platinum Premier Gentlemen's Club's common victualer and all-alcoholic and entertainment licenses pending appeals.

The action by Superior Court Judge Janet Kenton-Walker allows the strip club at 241 Southbridge St. to continue to offer entertainment and serve food and drinks while it appeals the revocation of its all-alcohol license to the state Alcoholic Beverages Control Commission and the loss of the entertainment license to the Superior Court.

The Worcester License Commission revoked the licenses after finding the club responsible for several violations, including staying open after 2 a.m., possessing adulterated alcohol, hindering a police investigation and charging a single patron $22,825 in credit card receipts. The revocations were also based on a videotape that allegedly depicts a now-former employee beating and robbing a club patron inside the club.

The club maintained the commission revoked the licenses unlawfully. The City disagrees.

In assessing the club's likelihood of success on its claims, one of the prerequisites for the issuance of a preliminary injunction, Judge Kenton-Walker said it was undisputed that the License Commission never provided the establishment with written notice of the entertainment license revocation accompanied by a statement of reasons for the action.

"Equally important, while the Commission has stated the reasons for revocation in its opposition, it has not given the court any supporting documentation, such as an affidavit, minutes or portions of a transcript, to help it determine the sufficiency of the evidence presented at the hearing," Judge Kenton-Walker wrote.

"Although the court recognizes that there may be cognizable public interest concerns in granting this injunction, the only facts before the court indicate that the Commission utterly failed to comply with the controlling statutes in revoking Premier's licenses."

"When the Commission complies with the statutory requirements, it may reprise its public interest contentions before the court with respect to the entertainment license, and may certainly raise such issues before the ABCC with respect to the common victualer all alcoholic license," the judge said in her ruling.

The Boston Globe reports that a federal judge sentenced Chuck Turner to three years in prison for accepting a $1,000 bribe, chastising the former Boston city councilor for his inability to "confront the ugly reality of the federal crimes he committed.''

US District Judge Douglas P. Woodlock laid blame for the harsh sentence squarely on Turner, saying he committed blatant perjury with his "surreal'' and "ludicrous'' testimony that he could not recall meeting a government witness who handed him a wad of cash related to liquor licensing.

"Someone like Mr. Turner who undertakes to speak truth to power must face the truth about himself,'' Woodlock said from the bench as Turner broke into a wide smile. "If it had been just a $1,000 bribe unaccompanied by false statements to the FBI and without the ludicrously perjurious testimony, we'd be in a different place.''

Although Woodlock acknowledged Turner's decades of advocating for the voiceless, the judge said it was clear he also "took a little on the side'' and "betrayed the public trust.''

Turner was ordered to report to prison March 25, although his lawyer vowed to appeal his case. During the two-hour hearing, Turner, a 70-year-old Harvard-educated activist, repeatedly shook his head to disagree with statements from the judge and prosecutor, but he declined to speak during the proceeding.

Turner's supporters cheered as he left the courtroom, chanting, "We stand with Chuck!'' Outside, a crush of media and others surrounded Turner as he struck a familiar tone of defiance, alleging a broad government conspiracy perpetrated by President George H.W. Bush's administration to "shut the mouths'' of black elected officials. He warned of "prosecutors gone wild'' and vowed to return to Boston after serving his time to keep up the fight.

"What happened today was as much a miscarriage of justice as the conviction,'' Turner said. "I'm innocent, and I didn't lie on the stand.''

The Boston Globe reports that Massachusetts' top federal judge, Mark Wolf, has said that Boston City Council's authority to oust Chuck Turner from office last month following the councilor's conviction for accepting a bribe is legally uncertain, and Turner's lawsuit to regain his seat might be turned over to the state courts.

Wolf ordered lawyers representing Turner and the city to submit their recommendations as to where the case should be decided by noon Friday.

Wolf is treading carefully because he said the question of whether the council has the legal authority to remove an incumbent has never before been decided in Massachusetts.

"This case involves issues that are fundamental to our federal system of government and, indeed, our democracy,'' Wolf wrote in his decision. "Respect for the role and responsibilities of the state generally make it most appropriate for state courts, rather than federal courts, to decide uncertain issues of state law, particularly if they relate to state or local elections.''

A timely decision is crucial because special elections to fill Turner's seat have been scheduled for Feb. 15 and March 15.

Turner, convicted in October for taking a $1,000 bribe from a Roxbury businessman seeking a liquor license from the city, is scheduled to be sentenced Jan. 25. If he is sent to prison, he would automatically be removed from office.

But the City Council -- citing new rules adopted following Turner's indictment that permit them to remove a councilor for "unbecoming conduct'' by a two-thirds vote -- had expelled him in December.

"It appears that the council's authority to remove Turner before he is sentenced is uncertain,'' Wolf wrote.

Last Monday, Turner and some of his constituents sought an injunction preventing the special elections and restoring him to his seat on the council, arguing that state law does not give the City Council the authority to remove him.

Turner had filed a lawsuit in December arguing that the council violated his rights when it expelled him. Fifteen of his constituents joined in the suit, contending they are disenfranchised because they no longer have district representation on the council.

Haverhill Fire Chief Richard Borden has lost his attempt to close the Blue Finn Grille and force the owners to install an expensive fire sprinkler system. Restaurants like the Blue Finn Grille that seat fewer than 100 diners are not typically required to have sprinklers.

However, Borden contended that the building had sprinklers at some point in the past, when it was owned by someone else. The chief's position was that those sprinklers were illegally disconnected and therefore must be put back regardless of the seating capacity of the restaurant on downtown Washington Street.

Lawrence Superior Court Judge Robert Cornetta has issued his ruling in the case. The judge said he visited the building Nov. 4 and found no evidence that there were ever sprinklers in it. His ruling says Borden claimed that some old sprinkler piping found in a building next door also serviced the Blue Finn Grille building.

"There is absolutely no physical evidence on site showing that sprinkler piping (found next door) penetrated the restaurant building's exterior masonry walls and serviced the restaurant's building," Cornetta wrote in his ruling.

Following the Fire Department's latest setback, City Councilor David Hall is calling for the firing of Chief Borden. Other city leaders have said they are concerned about the department's problems and that Borden's performance must improve.

Federal judge Douglas Woodlock has sentenced former state Senator Dianne Wilkerson to 3 1/2 years in prison for taking $23,500 in bribes in a scandal that rocked the Massachusetts State House and Boston City Hall.

The Boston Globe reported that Woodlock said he recognized Wilkerson's service to the community but he called her "financially embarrassed and fiscally incontinent" and said she had imposed her own "Wilkerson tax" on the community by accepting the bribes.

He rejected her plea for a lesser sentence, saying a message needed to be sent that political corruption would not be tolerated. "It's clear the sentencing imposed for criminal conduct here -- and in other industrial states, frankly -- hasn't been sufficient," he said.

He ordered Wilkerson, once a rising star in the state Democratic party, to turn herself in March 11 to begin serving her sentence at the federal prison in Danbury, Conn.

Wilkerson, in a lengthy plea of mercy during the sentencing hearing, offered no specific explanation for what she had done. She also said she had always acted on her constituents' behalf and the bribes she had taken did not affect her actions.

"If it was possible to do something criminal without being criminal, that would be me," she said.

Outside the courthouse after the sentencing, Wilkerson said she accepted responsibility for her crimes but believed that corrupt federal prosecutors went after her and former Boston City Councilor Chuck Turner, who was also convicted of a bribery charge, because they were outspoken politicians who challenged the status quo in Massachusetts.

A federal judge has delayed the sentencing of former state Sen. Dianne Wilkerson for corruption charges. Wilkerson was scheduled to be sentenced this week, but both the prosecution and the defense asked U.S. District Court Judge Douglas Woodlock to consider additional information first.

Woodlock heard more testimony from Dorchester developer Azeed Mohammed, who claims Wilkerson solicited bribes. Mohammed told the judge he gave Wilkerson $5,000 over a four-year period.

Wilkerson was not charged over those alleged payments, and her lawyer has said she did not solicit the money.

The defense may also have Wilkerson herself take the stand to explain her request for leniency.

"The battle here today is over how to persuade the judge," WBUR's David Boeri said from federal courthouse.

Sentencing is now set for Jan. 6.

Wilkerson pleaded guilty in June to eight counts of attempted extortion after she was captured on video stuffing bribe money into her bra. She was accused of taking $23,500 in bribes to help get a liquor license for a nightclub and an undercover agent posing as a businessman.

After denying the transfer of a liquor license to a Shrewsbury man partly because of his character, the Northboro Board of Selectmen has approved the license transfer, but with conditions, reported the Worcester Telegram. The Board's decision follows an ABCC reversal of the Board's earlier decision to deny the license.

In March, the board denied the license transfer for Celtic Tavern, a Route 9 eatery, to Christopher J. Muello, sole owner of CJ Restaurant Enterprises. Muello appealed to the Alcoholic Beverages Control Commission. Following a hearing in June, the ABCC in September sided with Muello and decided the license transfer should be approved.

The Board of Selectmen then appealed the ABCC decision in Superior Court, but also asked town counsel to seek a settlement with Mr. Muello, the Telegram reported.

The compromise accepted by both sides is a transfer of the liquor license with the following conditions: Mr. Muello cannot serve as the manager of the restaurant, and unless otherwise approved by the board, Mr. Muello cannot prepare or serve food, alcohol or other beverages at the restaurant.

The board voted 4-0 to transfer the license, with Selectman William J. Pantazis abstaining. The board plans to drop its court appeal.

Muello is on probation until January for a charge of reckless driving. He was found not guilty of drunken driving.

Federal Magistrate Judge Collings has denied the Beer Republic Brewing Company's request for an injunction against the Central City Brewing Company. Beer Republic contended that Central City's "RED RACER" mark infringed upon Plaintiff's "RACER 5" and "RED ROCKET" marks. Judge Collings found that as to Red Rocket, the Plaintiff has not shown similarity of marks, actual confusion, subjective intent, or strength of marks. As to Racer 5, Plaintiff has failed to establish that the marks of confusingly similar, which the Court called a factor of "utmost importance" in a likelihood of confusion analysis.

Judge Collings ruled that the public interest is best served by "fair competition in the marketplace."

The case is Civil Action No. 10-10118-RBC.