Ice House Tavern v. City of Portland

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STATE OF MAINE .- ,,

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SUPERIOR COURT

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CUMBERLAND, ss. .. ., \

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- CIVIL ACTION

DC?CImT NO. PLP-05-058

ORNE BROS., INC. d / b / a

THE ICE HOUSE TAVERN

Plaintiff

ORDER ON 80B APPEAL

CITY OF PORTLAND

Defendant

BEFORE THE COURT

Before the court is plaintiff Orne Bros., Inc. d / b / a The Ice House Tavern's

("Plaintiff") appeal, pursuant to M.R.Civ.P. 80B, of defendant City of Portland

("City") decision granting Plaintiff's liquor license for the interior portion of its

bar, but not for its outdoor deck area.

BACKGROUND

Plaintiff's bar, the Ice House, is located in downtown Portland at 231 York

Street. The immediate area surrounding Plaintiff's bar is a dense residential area

of the City. On August 1, 2005, the City Council voted to renew Plaintiff's liquor

license "for inside service only, with no outside seating or service." Plaintiff

appeals t h ~ restriction

s on renewal.

DISCUSSION

The court reviews the City Council's decision for errors of law, abuse of

discretion or findings not supported by substantial evidence in the record. See

Spain v. City of Brewer, 474 A.2d. 496, 498 (Me. 1984). For the record on appeal,

Plaintiff has submitted copies of (1) the Portland Police Department's ("PPD")

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liquor license reviews from the past three years including its most recent review

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nnVn,-l ,-, the YCLLWU

-n,-;nA R '1 / 04 t~ 7/ 16/05; (2) tTvVmcharts Y"Y

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n,-nnared by Plaixtiff, (i)

summarizing the content of the PPD's liquor license reviews and (ii) estimating

the percentage of people in the half-mile radius surrounding the bar who oppose

renewal of its liquor license; (3) the City Council's six-page written decision

renewing Plaintiff's liquor license but limiting it to inside service; (4) a memo on

Criteria and Process for Denying Liquor Licenses, prepared for the City Council

by the City's attorney; and (5) an August 26, 2005 affidavit from Michael Orne

describing h s version of events leading to the partial revocation of the bar's

liquor license. It appears that all of the materials (1)- (4) are properly part of the

record before t h ~ scourt. However, Plaintiff has not requested a trial of the facts

pursuant to M.R.Civ.P. 80B(d). Therefore, Michael Orne's affidavit may not be

considered. See Adelman v. Town of Baldwin, 2000 ME 91, ¶ 7,750 A.2d 577,581.

Plaintiff has not submitted a transcript of the hearing before the City

Council, even though Plaintiff's arguments on appeal are that the City Council's

decision was made on unlawful procedure at the hearing, affected by bias, and

unsupported by substantial evidence on the whole record. Plaintiff has the

obligation to submit an adequate record of proceedings before the City Council.

See Oeste v. Town of Camden, 670 A.2d 918, 920 (Me. 1996). While Plaintiff's

failure to provide a transcript of the hearing is reason in itself to dismiss the

appeal, it does not compel dismissal. See Oeste, 670 A.2d at 920. In t h ~ case,

s the

failure to provide a transcript of the hearings limits the information upon whch

the court may review Plaintiff's 80B complaint. However, Plaintiff's good-faith

attempt to provide parts of the record and a brief addressing the merits of its

appeal support proceeding. See Kirkpatrick v. City of Bangor, 517 A.2d 320, 321

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(Me. 1986) (80B appeal dismissed because Plaintiff failed to submit both the

recerd as n~e!! as a brief on the merits.)

Based on the limited record before the court, Plaintiff's allegations of

unlawful procedure at the hearing, and a decision affected bv bias, and

unsupported by substantial evidence on the whole record, are unsupported.

Plaintiff complains that it was not given a full opportunity to make its case and

rebut comments made at the hearing or present closing arguments. The written

decision, however, indicates that counsel for the Plaintiff made a presentation at

the hearing, introducing the PPD reports and its chart, and describing Plaintiff's

efforts to control noise emanating from the bar's outdoor deck. The decision also

indicates that Plaintiff's counsel also spoke twice in response to commentary

from the City Council and public. The decision nowhere indicates that Plaintiff

was denied an opportunity to speak. The City Council's failure to provide

Plaintiff the last word is not a denial of Plaintiff's rights. The governing statute,

28-A M.R.S.A. 5 653 nowhere specifies a right to closing arguments. Affording

an applicant the opportunity to make closing remarks is merely a recommended

practice, and not necessitated by due process or by statute.

Plaintiff's allegations of bias are based on the following, (1) Councilor

Geraghty's comments as to her own experience with complaints and the noise

issues and in the history of these issues before the City Council' over the past

three years; (2) Mayor Duson's alleged actions in limiting the presentation of

Plaintiff's case to two minutes; and (3) Councilor OIDonnell's comments that the

Plaintiff has been a perennial problem. There is no evidence in the record that

Mayor Duson limited Plaintiff's case as alleged, therefore no weight can be

assigned to this allegation. The comments made by Councilors O'Donnell and

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Geraghty are indications, not of bias, but of competent personal knowledge of

Pl~intiff's!iq~orlicense renewal. While no member of the City

faptors ~ffecting

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Council may rely on extrinsic evidence when sitting in their adjudicatory

capacity, it is well established that they may rely on competent personal

experiences to make an informed judgment about whether or not to grant

renewal. See Adelman, 2000 ME 91 at ¶ 11; Pine Tree Telephone and Telegraph Co. ZJ.

Town of Gray, 631 A.2d 55/57 (Me. 1993) (Board members could rely on their own

knowledge of road conditions observed in the vicinity of a proposed

development in denying a building permit). These comments were made, not

after the close of evidence, but during the course of the public hearing, and thus

were open to rebuttal by Plaintiff. The minutes of the hearing in the City

Council's decision indicate no thwarted attempt by Plaintiff or its counsel to

rebut these comments.

Plaintiff's argument that the decision to limit renewal of its liquor license

to the indoor portion of the bar was unsupported by substantial evidence in the

record is based on its assertion that the annual PPD reports establish a lessening

in frequency of incidents related to the bar. This argument ignores the relevant

standard for granting or denying renewal of a liquor license, and the existence of

sufficient evidence in the record to deny Plaintiff's liquor license based on this

standard.

28-A M.R.S.A. 5 653(2)(C) states in part that:

A [liquor] license may be denied on the following grounds:

conditions of record ... in the vicinity of the licensed premises

and.. . caused by persons patronizing or employed by the licensed

premises that unreasonably disturb, interfere with or affect the

ability of persons or businesses residing ... in the vicinity of the

licensed premises to use their property in a reasonable manner.

The PPD review listed "three loud party complaints, one mental subject, two

persm bothering calls, and nne intoxicated individua!. . . [one] warning for

allowing transportation of alcohol off [the] premise[s] . . . [and] h7o general

- one possible OUI, and one assault in the immediate

disturbances, one fight,

vicinity" during the review period, from August 1, 2004 to July 16, 2005. The

statute does not require that these incidents of record exceed incidents of record

in prior years in order for renewal of a liquor license to be legitimately denied.

Nevertheless, there would be some concern about arbitrariness or bias if the City

Council's decision concerning Plaintiff's liquor license deviated substantially

from its decisions in prior years, where evidence of disturbing incidents was

substantially the same, or less.

The PPDfs investigation of the premises for the review period "revealed

some concerns regarding the noise level and disruption to the neighborhood by

the barfs patrons." Nevertheless, PPD concluded, "Although these concerns are

legitimate, there is not enough documentation to recommend denial of this

liquor license." The City Council took this recommendation seriously, as was its

general practice, and it renewed the Plaintiff's liquor license. In spite of this,

however, and based on testimony from interested parties, the PPD report, and

commentary from Council members made during the public hearing, the Council

concluded that efforts in prior years to cure the noise impacts of the barfs

outdoor deck had not met with success, and that it was finally time to address

the problem by revoking the outdoor portion of the license. The Council

concluded that this particular establishment is in a heavily residential

neighborhood, and that as a consequence, the bar's inability to eliminate the

noise created by the outdoor deck after 10 PM unreasonably disturbed the ability

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of area residents to use their property in a reasonable manner. This meets the

o Plaintiff's liquor license (in whole ~r in p z t ) and 3s

stzbtory criteria for denpino

supported by substantial evidence in the record.

The entry is:

Plaintiffs' 80B appeal is DENIED.

Dated at Portland, Maine this / * day of ,2006.

Justice, Superior court

I Date Filed AUGUST 26 2005 CUMB ERLAND

County

Docket NO.

Action 80B APPEAL

I

ORNE BROTHERS INC DBA THE ICE HOUSE TAVERN THE CITY OF PORTLAND

VS. I

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Plaintiff's Attorney Defendant's Attorney I

GARY M PROLM ESQ GARY WOOD ESQ I

482 CONGRESS STREET 389 CONGRESS ST I

I

PORTLAND ME 04101 I

PORTLAND MAINE 04101

(207) 773-3712