Aldo's Place, Inc. v. Greer

• Decision Date: 02 January 2009
• Docket Number: C.A. 07-5154
• Parties: ALDO'S PLACE, INC. d/b/a WATER STREET CAFÉ v. JEFFREY GREER, in his capacity as Liquor Control Administrator; and TOWN OF NEW SHOREHAM
• Court: Rhode Island Superior Court

ALDO'S PLACE, INC. d/b/a WATER STREET CAFÉ v. JEFFREY GREER, in his capacity as Liquor Control Administrator; and TOWN OF NEW SHOREHAM

C.A. No. 07-5154

Superior Court of Rhode Island

January 2, 2009

DECISION

VOGEL J.

Aldo's Place, Inc. d/b/a Water Street Café (hereinafter "Appellant," "Applicant," or "Café") appeals to this Court from a decision of the Department of Business Regulation (hereinafter "DBR"). In its ruling, DBR upheld a decision of the Town of New Shoreham (hereinafter "Town"), denying Appellant's application for a Class C liquor license pursuant to G.L. 1956 § 3-7-19.^1[] Chapter 35 of title 42 of the Rhode Island General Laws confers jurisdiction on this Court. For the reasons set forth below, the Court remands this case to DBR for additional proceedings consistent with this Decision.

I Facts and Travel

On September 1, 2006, Appellant applied to the New Shoreham Board of License Commissioners for a Class C liquor license. (Application for License, September 1, 2006.) The Applicant proposed to operate a liquor serving establishment in an individual unit within a multi-unit retail shopping center the Inn at Old Harbor, which is on Block Island at Plat 6 Lot 155. The subject rental unit had been used by Ben &amp Jerry's to operate its ice cream business. (Appendix to Application for License, p. 6.) The Applicant seeks to serve food and beverages on site, as well as to operate a "take out" business from the subject unit. (Exhibit 5, 6/1/07 DBR Hearing.) The Applicant also proposes to provide wait service on an awning covered outside deck overlooking Old Harbor (Appendix to Application for License pp. 5-6.)

On November 20, 2006, a representative of the First Baptist Church (hereinafter "Church") filed a notice of objection with the Town. (Letter from First Baptist Church to Deputy Town Clerk, November 20, 2006.) The Church based its opposition on the contention that the "establishment is located within 200 feet of the church boundary." Id.

On November 29, 2006, the Board of License Commissioners rejected Appellant's application. (Letter from Deputy Town Clerk to Stephen E. Papa, December 1, 2006.) In denying the application, it relied on § 3-7-19 and found that the "premise is within 200 feet of Old Harbor Baptist Church." Id.

The Appellant took a timely appeal to DBR from this adverse ruling. In accordance with § 3-7-21, DBR conducted a de novo hearing on the application on June 1 2007.^2[] See Board of Police Com'rs of City of Warwick v. Reynolds, 86 R.I. 172, 177, 133 A.2d 737, 740-741 (R.I.1957) ("Under the existing law the liquor control administrator, who is now vested with the authority formerly exercised by the alcoholic beverage commission, may on the applicant's appeal hear the case de novo and has been termed by this court a super-licensing board."); Hallene v. Smith, 98 R.I. 360, 364, 201 A.2d 921, 924 (1964) ("When § 3-7-21 is read in its entirety, it discloses by necessary implication a legislative intent to provide licensees with a de novo hearing of the cause rather than an appellate review of the decision.")

The instant parties neither presented any testimony at the subsequent hearing, nor did either submit an agreed statement of facts. However, counsel for the Appellant offered a series of exhibits, including a site plan. (Applicant's Exhibit 2, DBR Hearing, 6/1/07.)

Pertinent to this case, the plan provided measurements from the property line of the Church to both the edifice of the shopping center and to the Applicant's individual unit within the center. The Café unit, including an entrance depicted on the exhibit, is located outside the 200-foot zone. (Applicant's Exhibit 2, DBR Hearing, 6/1/07.) However, the protected zone depicted on the plan encompasses a section of the shopping center structure and the land surrounding it. (Applicant's Exhibit 2, DBR Hearing, 6/1/07.)

A portion of the site plan was reproduced and marked to designate the location of a picnic area with twelve picnic tables located on the shopping center property. It is unclear from the record whether the photocopy depicting the picnic area received a separate exhibit number, but it appears as part of the record and was referred to at the hearing. ^3[]

Counsel for the Town noted that the parties had agreed that the location of the twelve picnic tables would be shown on the site plan. (Tr. at 6.) The picnic area was further addressed at the hearing. Counsel for the Town, Ms. Merolla, counsel for the Applicant, Mr. St. Pierre, and the hearing officer engaged in the following discussion:

Ms. Merolla: The twelve picnic tables that have been inserted into the plat and the plan, indicate the tables where patrons of the restaurants in this area take their food.

The Hearing Officer: So, there's like a generic?

Ms. Merolla: It's only for this building.

Mr. St. Pierre: It's not part of the lease premises. It's sort of public. Anybody could walk down Water Street and walk in to these picnic tables and use them.

Ms. Merolla: No, no, it's limited to patrons of here.

The Hearing Officer: I do believe I've actually sat there once and had Benn & Jerry's Ice Cream, so I have an idea.

Mr. St. Pierre: Fair enough. (Tr. at 10.)

Assuming that the picnic area was properly marked on the site plan, it may be located within the 200-foot protected zone. However, the record is insufficient for the Court to make a conclusive finding on its exact location.

At the DBR hearing, the parties offered several photographs of the Old Harbor Inn and of the proposed Café. (Applicant's Exhibits 4 (1-9) and Town's Exhibit 1, DBR Hearing, 6/1/07.) A photograph of the shopping center structure notes the "entry door to proposed liquor service area." (Town's Exhibit 1.) The site plan identifies what appears to be either a common entrance to the shopping center located near the Café or an entrance to the Café for the exclusive use of its patrons. (Applicant's Exhibit 2, DBR Hearing, 6/1/07.) This entrance is located outside the protected zone.

In his argument to the hearing officer, counsel for the Applicant stated: "There is no access control over any other part of the building that Aldo's Place, Inc. would have. The front of the building has other businesses and retail. There is no access to those." (Tr., 6/1/07, at 20.) Counsel for the Town did not contest this assertion. However, other than this reference in counsel's oral argument, the record is silent as to whether Café patrons would be able to access the establishment from any other entrance. The Court cannot determine whether the depicted entrance is merely the entrance nearest to the liquor establishment or whether it is the only entrance available to Café patrons to access the facility.

The site plan does not identify a parking lot on the shopping center property, but the record suggests that there may be common area parking for patrons of the shopping center, including patrons of the Café. If so, the record is silent on the location of the parking area.

The Court notes that counsel for the Applicant argued at the DBR hearing that his clients had

been owners of a liquor license for Aldo's Restaurant on Block Island for nearly 30 years. And as responsible applicants for the liquor license, they know that the consumption of alcoholic beverages must be within the confines of their restaurant and people can't wander out into the parking lot or into the street, consuming liquor or carrying a glass of wine or beer . . . (Emphasis added.) (Tr. at 23.)

Additionally, the record includes a commercial lease between Applicant and the owner of the shopping center. (Applicant's Exhibit 5, DBR Hearing, 6/1/07.) It specifically provides:

9. Parking. During the term of this lease, Lessee shall have the nonexclusive use in common with Lessor, other tenants of the building, their guests and invitees, of the non reserved common automobile parking areas, driveways, and foot ways, subject to rules and regulations for the use thereof as prescribed from time to time by Lessor. Id.

Finally, photographs offered into evidence at the DBR hearing at least raise the question of whether the shopping center provides off-road parking to patrons of its tenants, including those of the Café. Several of the photographs depict automobiles located in close proximity to the proposed liquor establishment. (Applicant's Exhibits 4 (2, 3 and 7), DBR Hearing, 6/1/07.)

The Café unit, including the entrance depicted on the exhibit, is located outside the 200-foot zone. Id. However, the protected zone depicted on the plan encompasses a section of the shopping center structure and the land surrounding it. (See DBR Ex. B.) The record is silent on the proposed location of the outside deck.

After the hearing concluded, the parties submitted memoranda in support of their respective positions. On August 22, 2007, the hearing officer issued a nine-page recommendation in which she recommended that the Town's denial of the application be upheld. On August 24, 2007, the Director of DBR adopted the written recommendation in its entirety. Accordingly, the hearing officer's written recommendation became DBR's official decision to uphold the Town's denial of the application. A certified copy of the decision was sent to the parties on August 28, 2007. The Appellant filed a timely appeal to this Court.

In its decision, DBR observed that "The parties agreed that the only issue on appeal is how to measure the 200 feet from the Appellant's location to the First Baptist Church ("Church"), a place of worship, located across the street from Appellant." (Decision at 2.) It found that the applicable statute required that the protective zone be measured "from church or school property to the building where the license is to be located." (Decisio...