MEMORANDUM

TO: City Council; Mayor Snyder CC: Jon P. Jennings, City Manager FROM: Anne Torregrossa, Associate Corporation Counsel DATE: August 24, 2020 RE: Tavern liquor application for 163 Washington Ave

Jeffrey Curran has submitted an application for a Tavern (Class IV) liquor license for his property at 163 Washington Avenue. That application is before you with a recommendation not to approve by the Zoning Administrator, on the grounds that a tavern is not permitted in the B-1 Zone where the property in question is.

This memo outlines the Council’s powers with respect to granting or denying a liquor license and provides the relevant ordinance and statutory provisions. Also attached is an older memo by Gary Wood, former Corporation Counsel, outlining the process for hearing disputed liquor license applications.

COUNCIL POWERS TO GRANT OR DENY A LIQUOR LICENSE

Applicants for a liquor license in Maine have to receive approvals from both the municipal officers (the City Council) and the State. State law provides that, “In granting or denying an application, the municipal officers . . . shall indicate the reasons for their decision and provide a copy to the applicant.” It goes on to provide that a license may be denied on various grounds, including, “Noncompliance of the licensed premises or its use with any local zoning ordinance or other land use ordinance not directly related to liquor control.” 28-A M.R.S. § 653(2). For a Class IV license, the Council may only grant or deny the license applied for.

BRIEF HISTORY OF THE PROPERTY

163 Washington Avenue (the “Property”) is a two-family home in the City’s B-1 Zone. The B-1 zone does not allow breweries or drinking establishments, but does allow restaurants.

Despite being incorrectly zoned, Mr. Curran began operating a brewery at the Property in 2018 without any permits. The City learned of this in 2019 when he applied for a tasting room license and told Mr. Curran that he needed to stop his brewery operations, which he says that he has done.1 Since that time, the City has been attempting to help Mr. Curran find a path to produce2 and/or serve his beer at his property.

Mr. Curran’s current application is for a Tavern (Class IV) license. A tavern does not have any food service requirements under state law and staff considers a tavern to be a drinking establishment, which

1 Mr. Curran subsequently sued the City and various staff members in Superior Court. The City prevailed and the court dismissed Mr. Curran’s case. That dismissal has been upheld by the Law Court.

2 The only way for Mr. Curran to operate a brewery at the Property would be to obtain a zone change. Mr. Curran has submitted a request to rezone his property, which is currently pending with the Planning Board. is not permitted in the B1 Zone. Although staff has encouraged Mr. Curran to apply for a Restaurant (Class IV) license, which is a permitted use in the B1 Zone, he has declined to do so.

RELEVANT CITY CODE PROVISIONS

The B-1 Zone allows restaurants under limited circumstances. City Code § 14-162(2)(h). However, it does not allow drinking establishments or breweries. See City Code § 14-164 (“Uses not enumerated in sections 14-162 and 14-163 as either permitted or conditional uses are prohibited.”); see also City Code §§ 14-162, 14-163.

The Zoning Code defines a restaurant as, “Any food service establishment, as defined by section 11-16 of this Code, with indoor seating capacity for ten (10) or more patrons.” City Code § 14-47. However, the Zoning Code also defines a drinking establishment as, “any establishment required to be licensed to sell alcoholic beverages for on-premises consumption, which is not regularly used for the purpose of providing full-course meals, as defined in Title 28-A of the Maine Revised Statutes, on the premises.” City Code § 14-47. Title 28-A defines full course meal as consisting of, “a diversified selection of food that ordinarily cannot be consumed without the use of tableware and that cannot be conveniently consumed while standing or walking.” 28-A M.R.S. § 2(R)(1).

In addition, however, The B1 Zone also places additional restrictions on restaurants. Those restrictions are described in City Code § 14-162(2)(h):

Restaurants are permitted in the B-1 zone and on the ground floor level of buildings in the B-1b zone provided they meet the following additional requirements in addition to the vehicle trips standards of in Sec. 14-162.a.2:

a. As set forth in the City of Portland Technical Manual, section I, the city traffic engineer shall require a traffic study when it calculates the proposed use will generate in excess of a total of 50 peak hour vehicle trips.

b. Maximum total floor area for use of the public shall be two thousand (2,000) square feet.

c. The hours of operation shall be limited to between 6:00 a.m. and 11:00 p.m. each day.

d. Food service and consumption are the primary function of the restaurant.

(emphasis added).

Therefore, a restaurant – as distinguished from a drinking establishment – in the B-1 zone is a food service establishment, with indoor seating capacity for ten or more patrons, that regularly provides a diversified selection of food that ordinarily cannot be consumed without the use of tableware and that cannot be conveniently consumed while standing or walking, and that is limited in size and hours of operation, and where food service and consumption is the primary function of the restaurant.3

RELEVANT STATE LAW PROVISIONS

A Class IV liquor license allows a licensee to sell malt liquor for on premises consumption. 28-A M.R.S. § 1005(1). Among the premises eligible for a Class IV license are a restaurant and a tavern. 28-A M.R.S. § 1005(3). For purposes of the liquor statutes, restaurant is defined as, “a reputable place operated by responsible persons of good reputation, which is regularly used for the purpose of providing food for the public, and which has adequate and sanitary kitchen and dining room equipment and capacity for preparing and serving suitable food for the public.” 28-A M.R.S. § 2(Q) (emphasis added). One of the conditions for a liquor license (including a Class IV license) granted to a restaurant is that, “at least 10% of the gross annual income must be from the sale of food.” 28-A M.R.S. § 1062.

In contrast, state law defines a tavern as, “a reputable place operated by responsible persons where food may be sold and malt liquor may be sold at tables, booths and counters.” 28-A M.R.S. § 2(T- 1) (emphasis added). For a license granted to a tavern, there is no food requirement at all. 28-A M.R.S. § 1066-A.

Therefore, the restaurant (Class IV) license more closely aligns with the City’s zoning requirements for a restaurant in the B-1 Zone. A tavern (Class IV) license has no food requirements and would permit Mr. Curran to operate a drinking establishment, which is not permitted in his zone.

3 In correspondence with staff, Mr. Curran has repeatedly taken the position that a restaurant is any food service establishment (“FSE”). However, an FSE could include a brewery, tavern, bar, and wide variety of other uses. Mr. Curran’s interpretation entirely ignores the distinction between a restaurant and a drinking establishment in the Zoning Code’s definitions, and also entirely ignores the additional requirements placed on restaurants in the B1 Zone.