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HomeMy WebLinkAbout2008-02-25 Board of Selectmen Minutes BOARD OF SELECTMEN MINUTES FEBRUARY 25, 2008 CALL TO ORDER: James Xenakis called the meeting to order at 7:00 PM at Town Hall Meeting Room. ATTENDANCE: The following were present: James Xenakis, Chairman; Thomas Licciardello; Rosemary Connelly Smedile; Daniel P. Lanen; Mark J.T. Caggiano; Mark Rees, Town Manager; Ray Santilli, Assistant Town Manager. EXECUTIVE SESSION: Mark Caggiano made a MOTION, seconded by Thomas Licciardello, to move into Executive Session to discuss Collective Bargaining. Vote approved 5-0. The Board of Selectmen was individually polled and each voted to move into Executive Session. Daniel P. Lanen, yes; Mark Caggiano yes; Rosemary Smedile, yes, and Thomas Licciardello yes; James Xenakis yes. Vote approved 5-0. APPROVAL OF MINUTES: Thomas Licciardello made a MOTION, seconded by Mark Caggiano, to approve the minutes of Open Session on January 28, 2008 and Open Session on February 11, 2008. Vote approved 5-0. Thomas Licciardello made a MOTION, seconded by Mark Caggiano, to approve the minutes of Executive Session on January 28, 2008 and Executive Session on February 11, 2008. Vote approved 5-0. COMMUNICATIONS,ANNOUNCEMENTS, AND PUBLIC COMMENT: Certificate of Appreciation The Board presented a Certificate of Appreciation to Tracy Sears, a student intern working in both the Assessors Office and the Town Clerk's Office, for her assistance with the GIS mapping project and the Annual Town Census. New Business Recognitions The Board presented Certificates of Recognition to four new businesses that located in town. Choice Fitness, Nova Salon Spa, Sunbanque. Elite Orthopedic and Sports Rehab. Each business gave a brief overview of their business. Department of Environmental Protection Municipal Sustainability Grant The Town has been notified that it has received a $500 grant to provide vouchers to reduce the cost of 50 rain barrels to residents who would like to acquire them. Storage of rainwater for use of watering and washing allows the Town to conserve on the water provided through the municipal water system. Proposed Boxford Gas Compression Station The Town received a letter from Attorney Jon N. Bonsall, on behalf of Algonquin Gas Transmission, LLC stating that the gas compression expansion project, which was to be located in Boxford is no longer being considered because of market conditions. Appointments The appointment subcommittee of the recommended the following applicants to be appointed to the Solid Waste Advisory Committee: Lisa Conti and Norm Bagley Mark Caggiano made a MOTION, seconded by Thomas Licciardello, to approve the appointments of Lisa Conti and Norm Bagley to the Solid Waste Advisory Committee. Vote approved 5-0. Board of Selectmen Minutes February 25, 2008 2 CONSENT ITEMS: Acceptance of Donation: Elder Services of Merrimack Valley for Life Saver Program Rosemary Smedile made a MOTION, seconded by Mark Caggiano, to accept the donation from Elder Services of Merrimack Valley in the amount of$250 for the Life Safety Program being promoted by the Commission on Disabilities. Vote approved 5-0. Town Election Warrant Town Clerk Joyce Bradshaw requested that the Board approve and sign the Town Election Warrant to be held on March 25, 2008. The polls will be opened from 7:00 a.m. to 8:00 p.m. voting will take place at the North Andover High School. Thomas Licciardello made a MOTION, seconded by Mark Caggiano, to approve and sign the Town Election Warrant. Vote approved 5-0. State Passport fees have increased to $75. and the Town fee has decreased to $25. LICENSING COMMISSIONERS: Thomas Licciardello made a MOTION, seconded by Rosemary Smedile, to move into Licensing. Vote approved 5-0. Application for Alcoholic Beverage License for All Alcoholic Beverages Restaurant, Entertainment License and Pledge License to Salem Five Cent Savings Bank for Bet It All, LLC., d.b.a. High Street Grill, 25 High Street Rosemary Smedile made a MOTION, seconded by James Xenakis, to approve the All Alcoholic Beverages Restaurant License for Bet It All, LLC. d.b.a. High Street Grill, 25 High Street. Vote approved 5-0. Thomas Licciardello made a MOTION, seconded by Rosemary Smedile, to approve the Pledge License to Salem Five Cent Savings Bank for Bet It All, LLC. d.b.a. High Street Grill, 25 High Street. Vote approved 5-0. Thomas Licciardello made a MOTION, seconded by Rosemary Smedile, to approve the Entertainment License for Bet It All, LLC. d.b.a. High Street Grill, 25 High Street. Vote approved 5-0. Request to expand number of vehicles Getty Gasoline Station Class II Used Car License, 785 Turnpike Street Proprietor Roger G. Feghali of Getty Gasoline Station requested the town to allow an increase in the number of vehicles allowed on the property to Thirty-five (35). The Board said that under the zoning bylaw for the businesses Section 4.131 (GB), there are a specific maximum number of used cars allowed on the property, which are twenty-five (25)vehicles. James Xenakis made a MOTION, seconded by Rosemary Smedile to approve up to twenty-five (25) vehicles for repair and sales on the property. Vote approved 5-0. Mark Caggiano made a MOTION, seconded by Rosemary Smedile, that there be a suspension for three consecutive days with the contingency of a discussion directly with the License Holder and her Attorney for purposes of changing the three-day suspension to an reduction in operating hours on a voluntarily basis. Vote approved 3-2. James Xenakis and Daniel Lanen opposed. Thomas Licciardello insisted that the Attorney take this deal or he would impose a five-day suspension tonight. Board of Selectmen Minutes February 25, 2008 3 Liquor Rules and Regulations Violation Hearing: Millennium Eatery, Inc. Beijing Restaurant Licensing Chairman Mark Caggiano gave the ground rules for Public Hearing procedures for Alleged Liquor License Violations. Attorney Albert Manzi III requested that the witnesses be sequester during their testimonies. This would mean that each Police Officer would testify separately and the other officers would leave the room. The Board granted this request. Rosemary Smedile made a MOTION, seconded by James Xenakis, to open the Public Hearing. Vote approved 5-0. Chairman Caggiano read the notice of Possible Violations, dated January 11, 2008, sent to the license holder Wen Jing Huang, Millennium Eatery, Inc Beijing Restaurant, 1250 Osgood Street, North Andover, MA 01845, violations: 1. "204CMR 2.05 (2)—"No licensee shall permit any illegality to occur on the licensed premises. The Licensee is responsible, whether present of not, for ensuring that no disorder, disturbance or illegality takes place in or on the licensed premises,"to wit: M.G.L. c. 265, §§13A& 15B and c.272, §53— respectively, Assault and Battery, Assault and Battery with a dangerous weapon, and Disorderly Conduct. that occurred on September 30, 2007 at 12:16 a.m. 2. W.G.L. Chapter 138, § 69—"No alcoholic beverages shall be sold or delivered on any premises licensed under this chapter to an intoxicated person." Licensing Chairman recognized the first witness Sgt. Diane Heffernan and the Town Clerk administered the Oath. Sgt. Diane Heffernan gave testimony of the events on the evening of September 30, 2007, that a full shift responded to the scene including Officers Reid, Barter, Faye, Sewade and Sgt. Heffernan. Officer Reid updated her on the situation in the parking lot of the establishment. Sgt. Heffernan tried to enter the establishment and the door was locked. The former owner David Yue let her in. Sgt. Heffernan asked David Yue and the manager and the bartender what happened. They said that an argument broke out and several people began pushing and shoving each other, and all involved were escorted outside. The bouncer was not present at the time of the incident because he had left the establishment early. The bartender could not remember how many drinks he served the assailants, but said they were not drunk. The bartender called 911 and reported the incident and then called back later asking for an ambulance. Sgt. Heffernan returned to the Police Station booking the two assailants, who in her opinion were extremely intoxicated. Attorney Manzi asked several questions regarding her testimony and whether a Breathalyzer test had been administered. Sgt. Heffernan said they were being arrested because of the assault and battery, not OUI, and there was no need to give a Breathalyzer test. Her personal observation of the assailant was that he extremely intoxicated because he was unsteady of his feet, glassy eyed, slurred speech, bloodshot eyes and with strong smell of alcohol on his breath. Licensing Chairman recognized the second witness Officer Brian Faye and the Town Clerk administered the Oath. Officer Brian Faye gave testimony that when he arrived on the scene, Officer Reid, Barter and Sewade were spread out over the entire parking lot attempting to assess and to gain control of the situation. The front and side parking lot were filled with bar patrons in a mass state of confusion. Officer Reid was assisting an EMT with an unconscious, bleeding male subject on the ground. Victims and witnesses stated that two men repeatedly kicked a man in the head, face and chest. Several witnesses pointed out the two men that were the assailants and indicated other victims as well. These assailants were sitting in the back seat of a vehicle. He ordered these men and the driver to exit the vehicle. These men were unstable on their feet, had red glassy eyes and had a strong odor of alcoholic beverages from their Board of Selectmen Minutes February 25, 2008 4 persons. These two men were charged with assault and battery with a dangerous weapon (shod foot) and disorderly conduct. Attorney Manzi asked several questions regarding his testimony and whether a Breathalyzer test had been administered. Officer Faye said that usually a Breathalyzer test is administered to a person driving a motor vehicle under the influence of alcohol. The driver did not appear intoxicated, but the two men in the back seat were intoxicated. The Board also asked Officer Faye other questions concerning his testimony. Licensing Chairman recognized the third witness Officer Robert Barter and the Town Clerk administered the Oath. Officer Robert Barter gave testimony that when he arrived on the scene; Officer Reid was taking care of an unconscious male on the ground. Several witnesses pointed out the two men that started the trouble. He did not have much interaction with the men and his main concern was to handle crowd control with Officer Sewade and to keep peace in the parking lot so that no one else got hurt. He did not see any restaurant staff in the parking lot at that time. Attorney Manzi asked several questions regarding his testimony and whether a Breathalyzer test had been administered and whether the assailants were arrested for intoxication or Assault and Battery. Officer Barter said that he did not have any interaction with the men but he knew that they were being charged with Assault and Battery. The Licensing Chairman asked the License Holder and her Attorney if they had any further testimony, submissions or questions. Attorney Manzi gave the Board a copy of a letter addressed to the Licensing Chairman, dated February 25, 2008 that stated based on the information presented to date, including information contained within the police reports for the incident that occurred on or about September 30,2007, it was the position of the License Holder that the facts of the alleged incident did not rise to the level of the charges. In closing Attorney Manzi said that the Board should not find that an illegality took place on the part of the License Holder and that the charges against the License Holders be dismissed with prejudice and without penalty. Rosemary Smedile asked if she could ask the License Holder questions. Attorney Manzi said that he could answer any questions on behalf of his client because of a language barrier and other reasons. After some discussion with the Chairman, Atty. Manzi indicated that his client would plead her Fifth Amendment rights to avoid possibly incriminating statements that could be used for criminal prosecution. The Chairman advised the Board members that this invocation of the Fifth Amendment could not be considered as evidence of guilt or as an admission. Attorney Manzi said that this establishment is under a new owner/management and there were five staff members present and they acted very appropriately at the time the altercation occurred and the patrons were ushered out of the building. This was a domestic related issue and the License Holder was not at fault and should not be held accountable. Rosemary Smedile asked what Mr. David Yue's role is at the restaurant. Was he still part owner or in management? Attorney Manzi said that he did not know Mr. Yue's relationship with the new owner, but he was working and helping out with the transition. James Xenakis made a MOTION, seconded by Thomas Licciardello, to close the Public Hearing. Vote approved 5-0. Board of Selectmen Minutes February 25, 2008 5 Rosemary Smedile made a MOTION, seconded by Thomas Licciardello, finding a violation of the License as stated on the first count, 204CMR 2.05 (2) - "No license for the sale of alcoholic beverages shall permit any disorder, disturbance or illegality of any kind to take place in or on the licensed premises. To wit: MGLA 265 sec 13A Assault and Battery with a Dangerous Weapon; has occurred on September 30, 2007. Vote approved 3-2. James Xenakis and Daniel Lanen opposed. The Board had a discussion regarding the incident. Board members said that knowing most problems at the establishment happen in the latter part of the evening, it is inexcusable for not having a bouncer present during those hours. The staff should have stopped the altercation inside the restaurant rather than usher everyone outside and then lock the doors of the establishment with no employees outside to control the situation. Rosemary Smedile made a MOTION, seconded Thomas Licciardello, finding a violation of the License as stated on the second count, MGLA 138 Sec 69— No alcoholic beverage shall be sold or delivered on any premises licensed under this chapter to an intoxicated person. Vote failed 1-4. Mark Caggiano, Thomas Licciardello, James Xenakis and Daniel Lanen opposed. The opposing members stated that there was not enough evidence to show that these men were served while intoxicated. Rosemary Smedile made a MOTION, seconded by Thomas Licciardello, that a five-day suspension would be imposed on the first count of MGLS 265 sec 13A Assault and Battery with a Dangerous Weapon. No vote taken. Thomas Licciardello AMENDED the MOTION that a three-day suspension would be imposed on the first count of MGLS 265 sec 13A Assault and Battery with a Dangerous Weapon. No vote taken. James Xenakis suggested that since most of these incidents happen around the midnight hour, the Board could close the bar an hour earlier for a determined period of time. Thomas Licciardello said that this is a creative approach but would like to close the bar two-hours earlier for a determined period of time. Attorney Manzi could not make that decision that night with his client, but would like to negotiate a voluntarily reversal of the finding of the violation and then work out a reduction of hours with the Chair. Licensing Chairman said that in order for us to move on, the License Holder had to waive any kind of procedural issues arising from the delay of imposing the penalty that night and for entering into negotiations over an hour reduction. There could be an appeal clock ticking with a finding but no determination of penalty, so it would make matters unclear. James Xenakis made a MOTION, that the Licensing Commission directs the Chairman to communicate with Millennium Eatery, Inc. for the purpose of negotiating abbreviated hours of operation for the selling of alcoholic beverages as a voluntarily suspension. Vote failed for lack of second. James Xenakis made a MOTION, seconded by Thomas Licciardello, to TABLE the discussion of the sanction relative to the finding until the next scheduled meeting. No vote taken. Mark Caggiano said in order to move forward with this, he requested the License Holder to reserve rights to appeal the finding of the violation, but to waive any procedural issues that will happen as a result of this two-week delay. Otherwise the Board would proceed with imposing a penalty. Attorney Manzi said the only concern was that he would like the Board to reverse the finding. At that point, Chairman Caggiano passed the gavel to Thomas Licciardello and made a MOTION. Mark Caggiano made a MOTION, seconded by Rosemary Smedile, that there be a suspension for three consecutive days with the contingency of a discussion directly with the License Holder and her Attorney for purposes of changing the three-day suspension to a reduction in operating hours on a voluntarily basis. Vote approved 3-2. James Xenakis and Daniel Lanen opposed. Board of Selectmen Minutes February 25, 2008 6 Thomas Licciardello insisted that the Attorney take this deal or he would impose a five-day suspension tonight. James Xenakis suggested that Thomas Licciardello could be part of the negotiation process. James Xenakis made a MOTION, seconded by Thomas Licciardello, to move out of Licensing. Vote approved 5-0. OLD BUSINESS: Old Center Improvement Projects Update TABLED until the next schedule meeting. Vote to Place Articles on the May 12, 2008 Annual Town Meeting Warrant The Town Manager asked the Board to vote on placing various articles on the Draft Annual Town Meeting Warrant. The Board is not voting to support, or not support, these articles at this time, only to place them on the Warrant. The Town Manager said that additional articles (N1 through N5) have been added for the restoration of the Bradstreet School as a police station; (LL) has been added to allow for the consolidation of school/municipal functions and (MM) has been included to provide for an option of acquiring the former Merrimack Valley Federal Credit Union building for use as a police station. Articles (N6-N7) relating to the proposed pre school building were added. A spreadsheet prepared by the Assessors shows that adopting certain state laws relating to the property relief for Senior Citizens could be very costly to the town and, as such, it is recommended that article (Z) not be brought forward at this town meeting. Mark Caggiano made a MOTION, seconded by Thomas Licciardello, to place the Articles presented to be placed on the draft warrant excluding Article Z. Vote approved 5-0 NEW BUSINESS: Prescribed Fire Plan for Weir Hill, The Trustees of Reservations The Trustees of Reservations, in partnership with the North Andover Fire Department, came before the Board to request permission and approval of implementing a Prescribed Fire Plan at Weir Hill Reservation in North Andover. Over the course of 2-3 days between March 10th and May 9th, a controlled burn of 10- 15 acres of Weir Hill for the purposes of: Protecting and promoting habitat for rare species; improving public and firefighter safety by reducing fuel loads; and providing training opportunities for North Andover Fire Fighters. Mark Caggiano made a MOTION, seconded by Thomas Licciardello, to endorse the prescribed fire plan and write a letter of endorsement to the Trustees of Reservations. Vote approved 5-0. Request for No Parking on Old Clark Road Lt. John Carney of the North Andover Police Department recommended that due to the width and structure of Old Clark Road, when cars are parked on the roadway it inhibits the ability of the trucking company to get in or out of their property with their large vehicles. Therefore, this road will be designated as a no parking zone and the area posted on both sides of the street. This decision will not negatively impact any person or business. Mr. Napoli of Napoli Trucking Company said that the street sign is posted as Old Clark Street and should be changed to say Old Clark Road. There are two streets in town with the same name and this makes deliveries difficult. Selectmen said that the Town Manager would inform the DPW to change the sign to say Old Clark Road or the name of the road could be changed entirely in the future to avoid confusion. Thomas Licciardello made a MOTION, seconded by Mark Caggiano, to approve the No Parking signs on both sides of the road as recommended by the Police Department. Vote approved 5-0. Board of Selectmen Minutes February 25, 2008 7 FY09 Water and Sewer Operating Budgets TABLED until the next scheduled meeting. TOWN MANAGER'S REPORT: On Wednesday, February 13", the Town Manager attended the monthly meeting of the Merrimack Valley Mayors/Managers Consortium. Items discussed included sharing DPW equipment and inviting the Merrimack Valley Hospital Association to a future meeting to discuss ways municipalities and area hospitals can work for our mutual benefit. On Saturday, February 16th, the Town Manager and the Finance Committee members toured the town to view capital project requests. Stops included the town's computer room, the Police Station, Bradstreet School, the Main Street Fire Station and the DPW Facility where equipment proposed to be replaced with new equipment was on display. ADJOURNMENT: Mark Caggiano made a MOTION, seconded by Thomas Licciardello, to adjourn the meeting at 10:30 PM. Vote approved 5-0. Adele J. Johnson Administrative Secretary Thomas Licciardello, Clerk of the Board