SalemNews.com, Salem, MA

December 6, 2013

Judge: Eatery not properly notified of sanction

Julie Manganis
STAFF WRITER

PEABODY —

A judge has issued an injunction stopping the city of Peabody from enforcing a “rollback” of the hours a Walnut Street restaurant is allowed to serve alcohol. The city’s Licensing Board imposed the sanction last month after numerous reported incidents there, including a stabbing. 

The board voted last month to restrict for six months the hours that Oliveira’s Steak House could serve alcohol, in response to incidents that occurred there, including fights, drug activity, underage drinking and noise complaints. The penalty, which took effect Dec. 1, prohibits the restaurant from serving alcohol after 10 p.m. 
 
The bar had previously been allowed to serve alcohol until 1 a.m.
 
While there is no legal route to appeal a restriction on hours to the state Alcoholic Beverages Control Commission, a lawyer for the restaurant yesterday filed a complaint asking for a Superior Court judicial review of the decision and, ultimately, a reversal of the order. 
 
During a hearing on a request for a preliminary injunction late yesterday afternoon, Salem Superior Court Judge Howard Whitehead found that the public notice given to the owners was “fatally defective” because it did not specifically state that the restaurant was facing sanctions that night. 
 
Instead, the public notice simply refers to a discussion of communications received from the police department “with regard to recent incidents that have occurred” at the Walnut Street restaurant. 
 
That was one of three arguments advanced by Jack Keilty, an attorney for the restaurant. Keilty also argued in court filings that the incidents that served as the basis for the sanction occurred outside the restaurant, and that the board failed to make findings of fact that would allow the decision to be reviewed by a higher authority.
 
Assistant city solicitor Adam Buckley argued that what happened on Nov. 25 at the hearing “should not have been a surprise” to anyone. The owners were served with copies of letters and logs of incidents dating back to 2011, Buckley told the judge, including the two most recent serious incidents, a stabbing on Oct. 12 and a fight that led to two arrests on Oct. 13. 
 
Buckley pointed to letters from then-police Chief Robert Champagne expressing concerns about public safety and the constant need for patrol officers to be stationed outside the restaurant — and how some incidents occurred even with that police presence. 
 
“The city’s position is that they acted appropriately in rolling back the license hours based on what was presented at the hearing,” Buckley argued. 
 
Whitehead noted that Keilty’s filings with the court included copies of those letters and a list of incidents and that the decision of the board was not unreasonable given the interests of public safety. 
 
The judge went on to suggest that rather than wait for the case to work its way through the court, which could take months, the Licensing Board “start from square one” and schedule a new hearing. 
 
The injunction granted yesterday will remain in place until the court appeal is resolved or a judge takes some further action. However, it would not apply to any new actions by the city. 
 
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.