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Newscapes Brewing Inc. Denial Decision

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Newscapes Brewing Inc. Denial Decision Order 87-20/21 Passage: 7-0 (Chong, Costa abstained) on 9/9/2020 Effective 9/19/2020 KATE SNYDER (MAYOR) KIMBERLY COOK (5) BELINDA S. RAY (1) CITY OF PORTLAND JILL C. DUSON (A/L) SPENCER R. THIBODEAU (2) IN THE CITY COUNCIL PIOUS ALI (A/L) TAE Y. CHONG (3) NICHOLAS M. MAVODONES, JR (A/L) JUSTIN COSTA (4) ORDER APPROVING THE RECORD AND WRITTEN DECISION RE: NEWSCAPES BREWING, INC. APPLICATION FOR A TAVERN CLASS IV WITH OUTSIDE DINING ON PRIVATE PROPERTY AT 163 WASHINGTON AVENUE ORDERED, that the record compiled in the August 31, 2020 City Council Agenda, back up material, and meeting minutes regarding the hearing on the application by Newscapes Brewing Inc. for a Tavern Class IV with Outside Dining on private property at 163 Washington Avenue, with a final City Council decision on August 31, 2020, is hereby approved as the official record; and BE IT FURTHER ORDERED, that the written decision attached hereto as Attachment A is approved as the final written decision of the City Council regarding the application by Newscapes Brewing Inc. for a Tavern Class IV with Outside Dining on private property at 163 Washington Avenue, with a final City Council decision on August 31, 2020. CITY OF PORTLAND CITY COUNCIL DECISION ON APPLICATION FOR A CLASS IV (TAVERN) LIQUOR LICENSE FILED BY NEWSCAPES BREWING, INC. 163 WASHINGTON AVENUE On August 31, 2020, the City of Portland City Council heard an application for a Class IV (Tavern) liquor license filed by Newscapes Brewing, Inc. In accordance with the City Code and state statutes, the City Council makes the following findings: 1. Newscapes Brewing Inc., owned by Jeffrey Curran, came before the City Council on August 31, 2020 with an application for a Class IV (Tavern) liquor license. 2. The application came forward with a recommendation to deny the liquor license from City Zoning Administrator, Ann Machado, who stated: 163 Washington Avenue is located in the B-1 (Neighborhood Business) Zone. Newscapes Brewing Inc is going before the City Council for approval of a Malt License (Class IV) to serve beer. Under Chapter 14 of the City Code, this use is considered a drinking establishment as defined in section 14-47. A drinking establishment is not listed as a permitted use (section 14-162) or a conditional use (section 14-163) in the B-1 Zone. Since it is not a permitted or conditional use in the B-1 Zone, Zoning must deny the request for a Malt License (Class IV) for Newscapes Brewing Inc. at 163 Washington Avenue. 3. The City Council also had before it a memo from Associate Corporation Counsel, Anne Torregrossa, which provided relevant statutory and ordinance sections. 4. At the City Council meeting, Attorney Torregrossa explained that a restaurant was a permitted use in the B-1 Zone, and that staff had encouraged Mr. Curran to apply for a Class IV (Restaurant) license, which would have received a favorable recommendation from the Zoning Administrator. However, Mr. Curran declined to follow staff’s recommendation. 5. Attorney Marshall Tinkle appeared on behalf of Newscapes Brewing and explained that Mr. Curran’s proposed use was a “retail” use that was permitted in the B-1 Zone, and that the City Ordinance defined that use to specifically include a tavern. 6. Mr. Curran also appeared on behalf of Newscapes Brewing and testified that he had previously been operating in the City but had to stop due to some mistakes. He stated that he declined to apply for a restaurant license because he intended to keep his operation small and felt there were many excellent restaurants in the City that he did not want to compete with. 7. The City Council deliberated on the application. Councilor Ray questioned whether, when Newscapes had previously been operating, it had any permits to do so from the City. Attorney Torregrossa explained that Newscapes did not have any City permits when it had operated previously. Councilor Ray also questioned whether Newscapes was pursuing alternative options to be able to operate its brewery and tasting room, to which Attorney Torregrossa explained that Newscapes had a pending petition to the Planning Board to change the zoning of 163 Washington Ave to support that use. That application would ultimately come to the Council for consideration. Finally Councilor Ray questioned whether “tavern” was defined in City ordinances. Attorney Torregrossa explained that tavern was not defined in Chapter 14, and that her memo reflected the definition of tavern in state law, which did not require any food service and was incompatible with the requirements of a restaurant under Chapter 14. 8. Councilor Cook commented that she had also looked for a definition of tavern in Chapter 14 and did not find one. 9. The Council unanimously finds that the Class IV (Tavern) application should be denied because it is inconsistent with the permitted uses in the B-1 Zone where Newscapes Brewing is located. 10. The Council agrees with the Zoning Administrator’s determination that a tavern is a drinking establishment. Drinking establishment is defined in Chapter 14 of the City Code 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 Sec. 14-47. Although there is no definition of tavern in Chapter 14, the state definitions and requirements for a tavern liquor license have no food service requirements and allow a tavern to serve only alcohol. See City of Portland Code of Ordinances Sec. 14-47; 28-A M.R.S. Sec. 2(T-1) (defining tavern as a place “where food may be sold”) (emphasis added); 28-A M.R.S. Sec. 1066-A (no food service requirements for a tavern). Absent any food service requirements, a Class IV (Tavern) license would allow the applicant to operate a drinking establishment. 11. The Council further agrees with the Zoning Administrator that The B-1 Zone does not permit drinking establishments, as that is not a permitted use (section 14-162) or a conditional use (section 14-163) in that zone. 12. The Council has the authority to deny a liquor license application based on, “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. Sec. 653(2). 13. Therefore, the Council DENIES the application for a Class IV (Tavern) license on the basis that it would not be in compliance with the City’s Zoning Code, which prohibits drinking establishments in the zone where the applicant proposes to locate his tavern. Date of Decision on the Record _September 9, 2020_____ Date of Written Decision signed _ September 9, 2020_ ___ _/s/ Kate Snyder______________ Mayor Kate Snyder .
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