ORDER-2020-38 : A Special Act to authorize the City of Melrose, acting through it's Liquor Licensing Commission, to convert up to three (3) retail food establishment licenses for the sale of wine and malt beverages to licenses for the sale of all alcoholic beverages for off premises consumption.

Transcript (~19 min @ 37:02)

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▶ 36:46 Kate Lipper-Garabedian: recommend for passage second we have a motion to recommend for passage made by councillor Mortimer and seconded by councillor Tremont ozi all in favor any opposed we'll make that recommendation to the full council thanks for joining us tonight and congratulations and best wishes to all of you who are ending your

▶ 37:07 Kate Lipper-Garabedian: terms tonight the next order on urgent and our last order tonight is order number 2020-38 a special act to authorize the city of Melrose acting through its liquor licensing Commission to convert up to two retail food establishment licenses for the sale of wine and malt beverages to licenses for the sale of all alcoholic alcoholic beverages for off-premises consumption we held this in committee and have made the committee agreed to a couple amendments in our most recent meeting just for those watching at home I believe majority of this committee moved to amend this to be all three of our licenses would be able to sell spirits yes counselor Mortimer I make a motion

▶ 37:53 Kate Lipper-Garabedian: to hold this order in committee second the motion made to hold this order in committee by counselor Mortimer seconded by counselor right on discussion

▶ 38:03 Peter D. Mortimer: Council Member thank you madam chair we received a letter from the mayor warning us falls that could occur I've spoken to city solicitors from other cities and one thing that they said to be careful of is that the if we leave

▶ 38:27 Peter D. Mortimer: this up to the liquor Commission then the state legislature can overrule us but if we make this an ordinance of our city and send it forward then they cannot steamroll us on this also there's a lot of technical details to work out I think the new mayor should have a little time to study this and weigh in on it to further degree if if there's a problem and this isn't handled correctly under the rules of our City Council we would not be able to bring this up for another six months that's why I think at this time the prudent thing to do would be to hold it in committee and why I made that motion so I asked for all of your

▶ 39:25 Francis X. Wright Jr.: support on that thank you counselor right just uh to follow up on um counselor mortimer um it's my opinion based on past experience that some of the proposed amendments that were being put forward have historically been rejected by the alcoholic beverage control commission i believe one city is challenging them with regards to the whole sale and nips but historically they have not allowed municipalities to ban those so i'm just concerned we go down a road where we put something in place that ultimately the legislature is going to throw out or change in a way that we don't anticipate because that's always a possibility once we hand something over to the legislature unless it's very carefully worded we give them an opportunity similar to all the memorandum is concerned to dictate what we can and cannot do so um we need the guidance not only of um this council i was going to say board and city solicitor van campen as to what amendments if any can be made so i think rather than rush this through I rather I know we're leaving but there's a fine group of people sitting right there we're gonna take these seats and are perfectly capable of taking up this order and considering it and acting in the best interest of the city so rather than again rush this through I'd rather see it handled in such a way that the new administration and the new City Council can take a comprehensive look at this make sure it gets done and gets done right and that we preserve and protect the businesses that we do have in melrose but we do it in the right way thank you any additional discussion

▶ 41:23 Michael P. Zwirko: counselor zorco thank you madam chair um seeing that we're still under suspension could i ask a few questions of the city solicitor at this time certainly seeing that he's here in the audience

▶ 41:37 Michael P. Zwirko: good evening thank you for being here so i just have a um so the last time we met on this um

▶ 41:45 Michael P. Zwirko: I believe it was just prior to Thanksgiving.

▶ 41:52 Speaker 3: We had asked if we were going to make changes. The response we got from you is that the changes would be best made in the actual petition that we're sending to the legislature, and by the comments of my colleagues this evening, it seems like that may have changed. I'm just curious if you could speak to any of their comments about the precariousness of moving forward as proffered to us. Certainly. I think it's always advisable and obviously I did offer advice to this committee I think it was in October oh was it October maybe November but that making a restriction relative to nips or smaller bottle sizes was more appropriately done in the statute rather than in a regulation by the Liquor Commission that still stands that advice what is being alluded to is a challenge I believe in the city of Chelsea by a group of business owners to a NIP restriction that was passed by the Chelsea Liquor Licensing Authority I believe that's what it's called that challenge is pending at the ABCC I don't believe there's been any reported decision out of the ABCC the information I have is as recently as August the decision remained pending at the ABCC so that issue is still being deliberated and the question there is basically whether or not there was a reasonable basis for the liquor commission to impose that type of a blanket restriction and so that is a basically an open question at this point it's advisable to put that type of a restriction inside the statute as it would be in my view subject to less of a challenge at the state level the legislature obviously can certainly pass laws so long as they're compliant with the Constitution of Commonwealth right at the end of the day that's a different issue than what is in Chelsea a local regulatory change hence the reason why I thought it was more advisable to do it by statute rather than by regulation and I appreciate the clarification because it seems like the Chelsea item isn't applicable here for the way that we're seeking to have correct because our local Commission wouldn't be seeking to regulate a prohibition on nips correct so we could

▶ 44:07 Michael P. Zwirko: move forward this evening and with the home rule petition because our liquor license Commission it doesn't isn't issuing these licenses it's actually just the effect of the sale at a different level correct I mean this is a policy determination of this City Council under under safest legal approach would be to impose this type of restriction statutorily what rather than on a regulatory which is what word which is what is before us right understood okay thank you for the clarification because I did get a little confused by the comments by my colleagues so I just wanted to clarify that what we what we have before us and what if we choose to dispose of this in moving forward or holding in committee so it was helpful for the clarification this evening thank

▶ 44:53 Kate Lipper-Garabedian: you madam chair for the first time counts counselor right thank you mr.

▶ 45:01 Francis X. Wright Jr.: Van Kempen, I don't disagree with you that it's best to put any such language in a special act or through a homework petition, which will eventually hopefully result in a special act. There's a practical reality, which is if there has been a restriction on the ability of municipalities to ban NIPS, that it's quite possible that the legislature, which respects state authorities generally could get that language from the special act they have the authority not to pass the home rule petition as is unless we restrict them to do that in which case if they see language in there that they're not inclined to agree with that they can either not pass it which would not be in the best interest of the city because it could drag on for a year or two and then we get a non-passage or they could cut it out and then start changing any language in the home rule petition, is that correct?

▶ 46:00 Speaker 3: That's a fair statement. The legislature could basically defer passage of the special act until the ABCC decision is disposed of. I would just add that the most recent FAQ at the ABCC indicates that local licensing authorities are authorized to restrict nips and single beer bottles. So they're currently publishing a position that they may have to amend at some later point based on the Chelsea, the set of facts in the Chelsea case. But in the final analysis, it's a fair statement. The legislature could take the position that we will defer further action on this until the ABCC and ultimately the courts determine whether it's reasonable to restrict the seal of NIPS in a community by regulation.

▶ 46:47 Francis X. Wright Jr.: Thank you, Mr. Van Kempen. my point generally is that again why rush this through tonight why not let it stay in committee let this be looked at by the new administration worked on by the new City Council let's take a look at where we want to go what we want to do what our goals are and make sure it gets done correctly rather than rush through tonight because it's our last meeting so i'll end at that note uh counselor medeiros

▶ 47:21 Monica C. Medeiros: thank you and i just briefly i support the motion to hold this in committee and one of the other reasons is that you know we currently have a vacancy for the office of state representative at the state house so we don't even have someone there right now if we were to rush this through to really shepherd this for us on our behalf and you know that office will not be filled until at least the election is March 3rd so it'll be some time after that so I think there's no real rush to push it today and I think it would make a lot more sense to make sure that we have something that that fits with the wishes

▶ 47:58 Speaker 4: of this community before we send it forward to the legislature thank you you

▶ 48:03 Speaker 4: have counselor Swerko I'm sorry I'm having a lot of trouble night with the counselor thing I don't know why it's just nostalgia so yes looking at all of

▶ 48:15 Michael P. Zwirko: i'm nostalgic counselors work go thank you madam chair so we have a letter here excuse me we have a letter here from mayor broder um that outlines um his thoughts on this um outlines the thoughts of the melrose chamber of commerce which has also sent us correspondence and you know we we debated uh for a good healthy amount of time the last time we met on this order and reading from the mayor's letter here it says i respectfully ask for your favorable action so certainly i work in litigation at my my day job there's litigation is always active if you were to stop the legislative movement of things because of pending litigation litigation nothing would ever change the benefit of that is is that because things are always fluid in a just society a ruling comes out things can certainly be overturned i think that we are we're talking a little bit about apples and oranges here the legislature can always amend a home rule petition they've done before in the past they've looked at home rule petitions and approved them they've rejected them that's always a threat i think we're not doing anything that's out out of bounds and in fact i actually think we're doing what's called careful consideration of this order and it was discussed ad nauseum over the greater part of 2019. i don't support holding this in committee i think we can certainly move forward tonight without further delay if this is delayed if it fails this item can't come up before the new council until june further kicking the can down the road even from a home rule petition standpoint we've had a lot of healthy discussion about this we've heard from our community i think we can move forward in a positive way on this order thank you uh counselor mcnaught hi

▶ 50:07 Jeff McNaught: i just have thank you madam chair i just have some thoughts after speaking with some residents and with some business owners since our last meeting and our last deliberation on this and it seems the only reason i raise these thoughts is it seems as though the conversation tonight is about nips and whether we can move forward with this or not so i throw these thoughts out only because i wonder if there's an appetite i'm not throwing out a motion to amend anything but i wonder if there's an appetite to do so if we remove the restriction on the sale of nips or we strike i believe it's section two of the proposed order let me just look at my notes here i did make some I think we have to acknowledge that we're making, if we pass this order at any point in time, we're making this for a few different reasons. One, I think, is convenience for our residents. I believe it was President Forbes in our last meeting who said it's time. I do believe it's time. And I should say, in my discussions with residents and with business owners, I have been a bit swayed. I did vote for the 750 milliliter limit. the last time we met and I've been swayed a bit on that I think we need to acknowledge the responsible business practices of the businesses in Melrose who do sell beer and wine and I think that they would do just as responsible a job if they were allowed to sell more obviously the the point of revenue going to Saugus, Malden, Wakefield all that border us is an obvious one I don't think it's the main driver in this but I raise all this to say you know if we don't have to hold this in committee if there's an appetite to say you know let's let's vote on this tonight and we can remove this restriction if if folks are in favor of that we might we might be able to move this forward I'm not trying to rush anything I know that some concerns were raised about alcoholics and young people being able to purchase alcohol that's to my knowledge not happening now we have the letter from Chief Lyle on file saying that the sale of beer and wine has not increased at least significantly any alcohol related incidents in the city of Melrose we also have the letter from Mayor Broder that says it does seem as though he's in favor of the order but he says I simply asked this is page two i simply ask that the council proceed carefully in crafting that limit i think the limit is referring to the 750 milliliters and hearing now the concerns with other cities and towns especially chelsea i think putting that limit in could cause us some obstacles i know that the stores that will sell or likely sell alcohol in town sell a lot of baskets and gift things and the like i can see these types of items going in those baskets i don't see a 750 milliliter bottle going in a gift basket i think that would be a rather large bottle of alcohol to put with some crackers and food and the like but i think i'll just end by saying i don't want to belabor the point but i'll end by saying again it's convenience for residents it's uh acknowledgement of the good job that our business owners do in melrose already and i think would continue to do and it's

▶ 54:06 Manisha Bewtra: revenue for the city of melrose thank you thank you councillor beecher um i uh through the chair i wanna um well i don't really have a question for the my other uh colleagues but i really appreciate the perspective that councillor mcnaught brought forward and i would if we consider making such an amendment i would support it i too i think i share councillor sorco's perspective in terms of um wanting to move forward with this but i also understand the desire to not not rush it through so I think if if there is an appetite for making some

▶ 54:51 Kate Lipper-Garabedian: amendments I would support those before we vote on the motion before so just to hold in committee can I just ask study solicitor my colleague counselors were co-mentioned that with this couldn't come back to the City Council until June can

▶ 55:06 Speaker 3: you clarify that for us I think I believe he's referring to the rule of the City Council which indicates if a matter is rejected it cannot be refiled

▶ 55:17 Michael P. Zwirko: within six months 37 of the board of the City Council's rules thank you and just

▶ 55:22 Kate Lipper-Garabedian: for people who are watching at home I just think it would be helpful for them to understand that so we have a motion to hold this in committee duly second it all in favor I think we might and all any opposed it sounded like that was a majority to hold in committee but can we just raise hands to confirm that all in