A Johnston bar faced a call for closure by one of its neighbors, but emerged with its license in tact after appearing before Town Council last week.
Originally, the 101 Bar and Grill, also known …
A Johnston bar faced a call for closure by one of its neighbors, but emerged with its license in tact after appearing before Town Council last week.
Originally, the 101 Bar and Grill, also known as Bar 101, at 1478 Atwood Ave., faced a “hearing for the business to Show Cause why the BV-Full Liquor license should not be suspended or revoked due to a complaint submitted by Attorney James Marusak,” according to the agenda for the Nov. 8 Town Council meeting.
However, Assistant Town Solicitor Dylan Conley informed council that the hearing wasn’t necessary, since the business’s license was up for renewal that night.
“The town is not presenting evidence,” Conley said. “So I would just ask that instead of show cause hearing it be considered an objection to the renewal, and that counsel for the objector be able to present. I do believe he has witnesses. I don’t believe that’s necessary to identify the documents in this presentation. I would like to take all that in. And I can review it as he makes his presentation.”
Marusak took to the lectern before Town Council.
“I’m handing the floor to you for a full objection on the renewal,” Conley told him.
Marusak said he represents National Development Group Inc., a property management company with a building at 1450 Atwood Ave.
He handed a thick packet of documents to all of the council members and the Bar 101’s attorney, K. Joseph Shekarchi.
Shekarchi, a Warwick Democrat, is also the speaker of the Rhode Island state House of Representatives.
“Is that Mr. Speaker?” asked Marusak.
“Call me Joe Shekarchi,” Shekarchi replied.
“I’m a town solicitor myself, so I know, sitting on your side, that what we don’t want generally is battles over evidence, and arguments over questioning and the like,” Marusak told Town Council. “We have four witnesses here, if that was necessary. We have a property manager, we have a security detail, various members that can testify to all of the stuff that you are going to see in front of you today.”
He walked the council through the thick packet of evidence.
Marusak said that his client thinks Bar 101’s “license should either be suspended or revoked, or certainly not renewed.”
Marusak said his client “believed that there were state regulations that had been violated.”
“We brought it to the attention of the business regulations department,” he explained. “Basically, the first shot should be local town council. Since they would be an appellate hearing group they asked that we bring this to you. And we did.”
Initially, Marusak said his client wanted to retain anonymity.
“At the time, this was anonymous,” Marusak said. “My client wished to remain anonymous so that there would not be any type of repercussions. There’s no longer any question as to who put this in, and I did it on behalf of my client, National Development Group, who is within the 200 feet radius.”
Marusak said his client is “an owner of premises within 200 feet … a very busy plaza and it’s well kept.”
First, Marusak said his client takes issue with an alleged illicit expansion of the business, to the suite next door to Bar 101.
He said the applicants have failed to “describe the premises with particularity,” in building permits and alcohol license applications.
“You can not do what the licensees did here, and that is, give your address as 1478 Atwood … 1478 Atwood, as you know, is an entire building, it’s two floors, its got somewhere around 22, 24 businesses in it,” Marusak said. “It does not describe with particularity what the licensed premises are … Right off the bat, there’s a problem with the license.”
He described the building where Bar 101 is located as “a two-story commercial strip mall built in 1965.”
“It has 20,640 square feet of floor space and numerous separate units,” Marusak said.
He then referenced a “marketing publication that was put in by the owners of the building” which describes “the facility as Atwood Center, and it has the capacity for 22 stores, and a total, allegedly 50 or so parking spaces, situated on 0.63 acres.”
“Bar 101 occupied only two units, units 103 and 104,” Marusak said. “As of 2019, the adjoining unit, unit 105, was occupied by a launderer known as ‘Go Green Cleaners.’ I believe this was a purposeful way of keeping from the public, that there was another unit that was actually added to Bar 101.”
Marusak argued that although a building permit was issued in October 2020, a new Certificate of Occupancy, was not requested.
“How do you expand a business, without seeking a certificate of occupancy, without stating what the occupancy amount is for the area, how many people can go in there?” Marusak asked. “How many people are projected? How many are already in the business that was to go into it?”
Marusak pitched his client’s theory.
“I suppose that what happened was, they simply built it out,” he told the council. “They left the Go Green Cleaners above, they built a partition so you can’t look in, and proceeded to serve alcohol, food, etc. in the new expanded area. They did start calling that The Gathering, they called it a function room. But no matter what you call it, it’s an expansion of the area that was, I take it, licensed. And it was done once again, I believe, in a surreptitious fashion. And that violates very specific areas of the law.”
Marusak claimed the bar intentionally kept their intentions hidden.
“It’s our position … that what you have in front of you is not just a run of the mill ‘Oh Geez,’ ‘Aww Shucks,’ I didn’t do it, I forgot,” Marusak argued. “This is something much worse than that and it’s hard to say that about a neighbor. But we’re saying it. It is much more. We believe it’s a violation of laws, codes, ordinances, regulations that are egregious, and knowing in fashion. It’s a disrespect to this commission. It’s a disrespect to the Department of Business Regulation. It’s a disrespect to our system of laws. And it is a big disrespect to the neighbors in that area.”
Marusak repeated that he and his client were “asking (Town Council) to revoke the license.”
“If you do not revoke, we think you should suspend and also fine, the operator and the owner of the premises,” Marusak said. “I think they’re both, under the law, equally liable. And if the suspension is over, the condition of the suspension would be that you can come back under the following conditions.”
Marusak requested at least seven conditions be placed on the owners of Bar 101. Those conditions included footing the bill for private security and placement of video cameras inside and out.
“Third, we believe that security cameras should be placed, in both the interior and the exterior,” Marusak said. “They should be accessible to the town, to the town’s officials, including your building inspectors, your fire inspectors, your police. And they should also be available, upon request, to any abutter within 200 feet. So they can see whether or not this operation is properly and safely being run.”
Marusak said his client has spent around $55,000 in private security to monitor parking by patrons of Bar 101.
He also requested that Bar 101 no longer utilize the expanded space in the adjoining storefront.
“There should be no use of Unit 105,” Marusak said. “That is unlicensed area.”
Shekarchi, representing Bar 101, offered a rebuttal to Marusak’s claims.
“There’s been no violations,” Shekarchi said. “A violation doesn’t happen until you make a ruling there’s a violation. These are alleged by him. I hear a lot of ‘he feels,’ and ‘he believes,’ and ‘he thinks,’ but that’s not, in and of itself, conclusive. The burden’s on the them to prove, necessarily, that these violations occurred.”
Shekarchi agreed to one stipulation: delaying the bar’s license renewal until new, more detailed paperwork could be filed.
“I think that application probably should be amended,” Shekarchi said. “For the long term benefit of all parties involved.”
Shekarchi questioned why Marusak’s clients have spent so much money investigating their neighbor.
“As far as the show cause, I heard a lot of things today,” Shekarchi said. “A lot of things I didn’t hear. I didn’t hear how many if any cars had been towed. And why would you spend $55,000 trying to get private detectives, and pictures, and videos, and Instagrams, unless you had some motive, other than cars parking? What we believe, I’ll give you my beliefs, and they’re not true unless you can prove them, but it’s still a dispute between two landowners, and my client’s the little guy getting caught in the middle. Let’s squeeze the little guy, and the rent he pays, and then maybe one can buy the other one out, one can force the other one out.”
Shekarchi said his clients have maintained the peace on the premises.
“My client informs me that there’s never been any violations inside of the place,” Shekarchi argued. “No one’s been served for underage drinking. There’s been no arrests for unruly patrons inside. He’s run a clean operation inside.”
He argued the pandemic was to blame for the lack of updated signage at the business.
“You said it’s been going on for two years,” Shekarchi said. “Yeah. Because we had COVID. It’s very difficult to get workers at this time right now. That’s not his fault.”
He also said the virus led to the expansion.
“Did we increase the size?” Shekarchi asked. “Yeah. Because of COVID. And you have more space between everybody. But we didn’t increase capacity. It’s just over 100. And it didn’t change. We didn’t change anything. We followed the requirements as laid out by the town.”
Bar 101’s attorney said discrepancies on the applications and building permits were simply honest mistakes and possible misinterpretations of local regulations.
“We have 39 cities and towns; 39 cities and towns fill them out differently,” Shekarchi said. “There’s no right or wrong way. You do as much as the building inspector requires you. This has been reviewed. It’s been accepted. It has not been deemed incomplete. We followed the law. We did what was required under the town.”
Shekarchi also argued that complaints regarding “the parking situation” are “not necessarily grounds for suspension or revocation.”
“Those things all need to be proven,” Shekarchi said. “What’s going on here? Who would spend $55,000 to try to squeeze a little guy out of business? He’s acted in good faith. There’s nothing sinister about the operation of the bar. The building inspector was in. He inspected it.”
After the meeting, Johnston Building Official Ed Civito said he saw no problems with the building permits filed by the owner of Bar 101.
“We would like the opportunity to apply for a new renewal license,” Shekarchi said. “But I don’t think at this point a revocation is called for, or a suspension is called for.”
Shekarchi mentioned more egregious violators; bar owners tied to murders in nearby Providence.
“You read about in Providence, when licenses are suspended; emergency orders are granted,” Shekarchi said. “It’s when there’s a shooting. There’s never been a shooting here. Or when there’s a drug deal. Or something really really severe going on. The punishment that’s requested by my brother does not fit the potential minor oversights or violations in filling out applications.”
Shekarchi asked the Town Council to allow his client the opportunity to re-file for license renewal. He said he’s sure the case will still progress through other layers of regulatory boards and the courts.
“And ultimately I’m sure there will be an appeal,” Shekarchi said. “I’m sure it will go to DBR, and then I’m sure it will go into the court system. But to act to put this man out of business is a grave injustice to a hardworking businessman in the town because the two landlords next door, the two landlords, are fighting over parking.”
Marusak returned to the lectern and responded to Shekarchi.
“We haven’t made allegations,” Marusak told the Town Council. “We’ve presented you with proof … This is about one person, one business person, one property owner, trying to protect his property. And objecting to what the problem is.”
He argued that the regulations are in place to prevent crime and tragedy.
“There are no violations and no arrests?” Marusak asked. “Well I suppose that’s true. What we’re trying to do is prevent that type of thing from happening. You know, code violations is what happens when The Station fire occurred; all over the place, ignoring code requirements.”
Shekarchi loudly objected to Marusak’s comparison to The Station nightclub fire, a 2003 inferno in West Warwick that killed 100 people and injured more than 200.
“Objection!” Shekarchi shouted. “I have to object. There’s been no evidence of any fire code violation. To make that analogy about the fire code is really inappropriate.”
“I’m not making that analogy,” Marusak replied. “I’m just saying that you don’t need an arrest before you should enforce. You don’t need a tragedy before you enforce.”
Town Council Vice President Joseph Polisena Jr. stopped Marusak.
“That’s a pretty grotesque analogy,” Polisena said.
“Then I apologize to you,” Marusak said, attempting to strike a conciliatory tone. “But it’s absolutely, as far as I’m concerned, it was meant to only illustrate that … prevention is what the law is about. And my apologies to you if I went over the line on that one. I didn’t intend to and I really think I … respectfully, I don’t think I did.”
After the arguments, Conley offered legal advise to Town Council.
“This is a renewal hearing,” Conley said. “They have a right to object … Burden is for the objector to show they are not fit for renewal.”
Conley said that the state’s “standard for imposing a penalty on the licensee for the actions of patrons is impossibly high.”
“By way of example, I very recently presided over a case in which a patron murdered another patron in front of the establishment,” Conley said. “This is the same establishment where there was another shooting and the owner of this establishment brandished an assault rifle in response to that shooting. The DBR has stayed my penalty; I did not even seek to revoke as a result of the murder. I (sought) decreased hours. The Department of Business Regulations is of the opinion that was too strict and they are allowed to open as if no event had occurred at the premises at all.”
Conley asked Town Council to compare the two situations.
“So when you think about what level of responsibility licensees have for the actions of their patrons when they occur outside of the premises, it’s as close to zero as you can imagine,” Conley explained. “So if you compare a brandished assault rifle, then a shooting incident, followed by a murder in which the state believes that it’s appropriate for that bar to be open, issues related to parking are insufficient to impose penalty upon a licensee.”
Conley also deflated Marusak’s case that Bar 101 had “unlawfully” expanded the business. He referred to the license applications and building permits.
“(The) only property identified is the entire property … what in fact happened is that the entire building was approved,” Conley said. “A smaller space within the building was originally used. Then an expansion was also used. But that still is within the entirety of the premises that was originally licensed and approved.”
Conley suggested the board move to disregard the complaints made by Marusak and his client.
“The town based on the presentation this evening, and our own review of the record, has no objection to the renewal of the license,” Conley said. “The town doesn’t see any evidence sufficient to impose penalties on the licensee from the actions of third parties related to parking.”
Town Council then voted unanimously to uphold Bar 101’s licenses, and granted them an extension to the board’s next meeting on Dec. 13. Shekarchi said his client would be able to file a revised application for the liquor license renewal by then.
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