[HISTORY: Adopted by the Board of Selectmen (now Select Board)
of the Town of Nantucket effective 3-1-2010. Amendments noted where applicable.[1]]
TOWN CODE REFERENCES
Alcoholic beverages — See Ch. 54.
Civil fingerprinting — See Ch. 108.
Zoning — See Ch. 139.
TOWN REGULATIONS REFERENCES
Signs — See Ch. 340.
[1]
Editor's Note: The Select Board approved the codification
of its regulations, as revised, 4-13-2022.
A.
By virtue of the authority contained in MGL c. 138, § 23,
and MGL c. 140, as amended, the Select Board of the Town of Nantucket,
serving as the Town's Liquor Licensing Authority (hereinafter the
"Board" or "local licensing authority") hereby promulgates these Rules
and Regulations Governing Alcoholic Beverages (hereinafter the "regulations").
The regulations shall supersede all previous applicable regulations
or policies issued by the Town of Nantucket (the "Town"). The Board
reserves the right to amend the regulations periodically as it sees
fit, upon advance notice.
B.
All licenses issued for the sale in any manner of any alcoholic beverage
shall be issued by the Board on the condition of full compliance with
the regulations. The failure to comply with the regulations and other
applicable bylaws or rules issued by the Town or state shall constitute
sufficient cause or grounds for refusing to grant said licenses, or
for suspending, canceling, or revoking any license already granted
by the Board.
A.
No person shall drink any alcoholic beverages, as that term is defined in MGL c. 138, § 1, as amended ("Chapter 138"), while on, in or upon any public way or upon any way to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, park or playground, or private land or place without consent of the owner or person in control thereof. All alcoholic beverages used in violation of the regulations and/or Chapter 54, Alcoholic Beverages, of the Code of the Town of Nantucket may be seized.
B.
No person shall sell, furnish or provide alcohol to any person under
the age of 21. In addition to the rules and regulations pertaining
to the licensing and sale of alcoholic beverages that follow, Nantucket
residents and visitors should be aware of the principle of social
host liability under Massachusetts law (MGL c. 138, § 34).
A "social host" is an individual who provides alcoholic beverages
to guests in his or her home, or other property (s)he owns or manages.
The law defines "furnish" as "to knowingly or intentionally supply,
give or provide to or allow a person under 21 years of age (except
for the children and grandchildren of the person being charged) to
possess alcoholic beverages on premises or property owned or controlled
by the person charged." Under Massachusetts law, a social host may
under certain circumstances be held liable (criminally and/or civilly)
for injuries caused by a guest who, having consumed alcohol at the
host's premises (even if the property owner is not present at the
time), does harm to himself or herself or to a third party. If the
guest is not of legal drinking age (i.e., under 21 years of age) and
the host knew or reasonably should have known that he/she was furnishing
alcohol to an underage youth, the host may be held responsible for
injuries or damage to the underage youth, or to third parties caused
by the alcohol-influenced actions. Furthermore, even if the guest
was not an underage youth, a social host may be liable for injuries
to third parties if the host knew or should have known that the guest
was intoxicated but, nevertheless, gave him or her, or permitted him
or her to take, an alcoholic drink.
C.
The State Liquor Control Act, MGL c. 138, regulates "alcoholic beverages"
as that term is defined by law. The law defines "alcoholic beverages"
to be "any liquid intended for human consumption as a beverage and
containing 1/2 of 1% or more of alcohol by volume at 60° F." Thus,
if a product is composed or manufactured so that it contains 1/2%
or more of alcohol by volume at 60° F., it is an "alcoholic beverage"
and subject to the Liquor Control Act. If a product is composed or
manufactured so that it contains less than 1/2% of alcohol by volume
at 60° F., it is not an "alcoholic beverage" and is not subject
to the Liquor Control Act.
A.
An applicant for a liquor license must meet the requirements of Chapter
138, the regulations, and any other applicable local or state law.
B.
All employees serving alcohol to the public are required to successfully
complete an alcoholic beverage server training program approved by
the Town. The requirement set forth in the preceding sentence shall
include and apply to the manager, assistant manager, and persons responsible
for viewing identification cards to determine the age of patrons for
service of alcohol. All employees engaged in serving or selling alcoholic
beverages and/or viewing of identification cards shall be certified
within 30 days of employment at the licensed premises. To the extent
an employee other than the manager or assistant manager serves alcohol
or views identification cards within the first 30 days of his or her
employment without having successfully completed an alcoholic beverage
server training program, the manager, manager of liquor license, or
manager on duty will be personally responsible for that employee,
and any violation of the regulations committed by that employee will
be treated as if the manager had committed the violation. Managers
and assistant managers shall have successfully completed an alcoholic
beverage server training program prior to assuming the duties of manager
or assistant manager. All alcohol servers are strongly encouraged
to attend periodic server retraining programs at least once per calendar
year. Server training certification must be current/valid and the
employee must renew prior to expiration of certification. Retention
of the records of training and retraining is the responsibility of
the manager and must be made available to the Nantucket Police Department
upon request.
C.
Certain practices, including, without limitation, "Happy Hours,"
are prohibited per MGL 138, § 12 and § 14 and
204 CMR 4.00 et seq.
D.
Cover charges are not permitted except in compliance with MGL c.
140, § 183D and 204 CMR 2.16.
E.
The Board has very broad discretion to determine whether or not to
issue a license in the Town of Nantucket and whether such license
would serve a public need in such a manner as to protect the common
good.
F.
The licensed premises shall be subject, at all times, to inspection
by the Nantucket Town Manager or his/her designee(s).
G.
The Nantucket Police Department shall have the authority to investigate
potential violations of the regulations and to conduct other such
enforcement as the Chief of Police deems appropriate, including the
use of plainclothes police officers for the purposes of ensuring compliance
with Chapter 138, the regulations, and other state and local laws
as may be applicable.
H.
Any prior restrictions or conditions placed upon a property housing
a liquor license establishment by another Town board or commission
will be construed as also having the agreement of the local licensing
authority.
A.
In accordance with MGL c. 138, § 12, the "official opening
and closing hours" are those which are designated on the licensee's
liquor license issued by the Board. Last call shall be at least 15
minutes prior to the official closing hour. No alcoholic beverages
may be served after the official closing hour. All tables and bars
must be cleared of all glasses, bottles and containers of alcoholic
beverages and all customers must be off the licensed premises within
1/2 hour after the official closing hour. Owners and employees must
be off the licensed premises no later than 60 minutes after the official
closing hour, provided that owners and their employees and contractors
may be on the licensed premises at any time for the purpose of cleaning,
making emergency repairs, providing security for such premises, or
preparing food for the next day's business. No employee or owner shall
consume alcohol on the premises nor serve any alcoholic beverages
at the licensed premises before the official opening hour or after
the official closing hour. Patrons are not permitted to bring alcoholic
beverages into the licensed premises for their own consumption. Common
victualler licensees are not permitted to keep alcoholic beverages
on the premises except for a reasonable small quantity that is used
in preparation of certain specialty foods.
B.
A violation of any of the aforementioned restrictions regarding the
hours of operation shall constitute a violation of the regulations
and may subject the licensee to modification, suspension, revocation
or cancellation of its license in accordance with Chapter 138.
A.
An application for change of manager of the licensed premises must be filed with the Board at least two weeks before the proposed effective date of the change, unless the approved manager has terminated his or her employment without prior notice to the licensee. In that case, the licensee must notify the Board of the name of the person who will discharge the duties of manager while he or she is absent pending selection and approval of a new manager by the close of the next business day following the manager's termination of employment. If the employment of the approved manager is terminated by the licensee, or if the approved manager is replaced, transferred, or for other reason due to action by the licensee is no longer acting as manager, the licensee must file an application for change of manager at least two weeks before the action is taken by the licensee and must obtain approval by the Board of the application before changing the manager. If circumstances other than those stated above require a licensee to make a change in manager without timely filing the required application, the licensee shall file the application at the earliest practicable time and must include a detailed statement of the reasons for its delay. If the Board finds that the circumstances of the delay justify the noncompliance, no sanction will be imposed. If the circumstances are not found to be sufficient, the Board may impose a day of suspension for each day of unjustified noncompliance, or such other sanction as permitted by § 207-16 of these regulations. When submitting an application for change of manager, the manager shall be certified as an alcohol server prior to submitting the application. Furthermore, approval of a change in manager may be conditioned upon proof of payment of all outstanding local, state and federal taxes and fees.
B.
Upon receipt of an application for an original license, or in the case of a new manager, upon being advised of the new manager's identity, the Nantucket Police Department will conduct a background check of any proposed licensee or manager in accordance with Chapter 108, Civil Fingerprinting, of the Code of the Town of Nantucket, and such check will include a review of any existing criminal record. The licensing authority may reject any application where the licensee's or manager's criminal record indicates theft, unlawful sale, use or distribution of controlled substances, alcohol-related offenses, association with known felons or individuals involved in organized crime, a propensity for violence, or other behavior that, in the opinion of the licensing authority, puts the public at risk.
C.
Violation of any of the aforementioned restrictions regarding change
of manager shall constitute a violation of the regulations and shall
subject the licensee to possible sanctions.
A.
The Board regards the manager of licensed premises as the principal
representative of the licensee and, as such, having full authority
and control of the licensed premises and of the conduct of all business
taking place therein relative to alcoholic beverages, as referred
to in Chapter 138 and the regulations.
B.
Without limiting the scope of the previous subsection, the Board
will hold the manager of the licensed premises responsible for the
following:
(1)
Selection of qualified employees, including servers, clerks and persons
who are engaged in dealing with the public in any capacity;
(2)
Training of employees in all matters relating to the sale or service
of alcoholic beverages;
(3)
Assuring that employees serving alcohol to the public have successfully
completed an alcoholic beverage server training program for serving
alcohol responsibly, and provide for continual training of employees
engaged in serving and selling alcoholic beverages;
(4)
Ensuring that no criminal activity, including the illegal sale, use
or distribution of controlled substances, takes place on the licensed
premises or on any parking area of the licensed premises;
(5)
Promptly reporting to the Nantucket Police Department all instances
of attempted purchases or procurement of service of alcoholic beverages
by minors, including attempts to gain access to premises upon which
alcoholic beverages are served and from which minors are excluded.
In such instances, the licensee is expected to take appropriate action,
which shall include:
(a)
Reporting to the Registry of Motor Vehicles instances involving possession
or use of a false, forged or counterfeit license to operate motor
vehicles or identification card issued by the Registry of Motor Vehicles;
(b)
Confiscation of liquor identification cards or motor vehicle operator's
licenses presented by the minor; and
(c)
If a purchase was made or service was procured, the name of the licensee's
employee participating therein;
(6)
Enforcement of the regulations and any applicable state law with
respect to the operation of the licensed premises; and
(7)
Ensuring that the licensed premises, including the exterior, are
kept clean, neat and sanitary at all times.
C.
Except as provided herein, the manager of the licensed premises must
be a full-time employee or a corporate officer of the licensee, must
be engaged exclusively in the management of the licensed premises,
and must be a qualified seller or server of alcoholic beverages. When
the manager is not present at the licensed premises, the person in
charge of the business must be a qualified seller or server of alcoholic
beverages and designated by the approved manager to have charge of
the business in the manager's absence. The manager will continue to
be responsible for the operation of the business whether or not he/she
is present at the licensed premises. When the manager is not at the
premises, a method of contacting him/her promptly must be arranged
so that he/she can be reached at all times by the person designated
to be in charge of the premises in his/her absence. The provisions
of the first sentence of this subsection shall not apply to any licensee
holding a license issued under MGL c. 138, § 12, to a veterans
organization or to a licensee holding a license issued to a club under
said chapter.
D.
Failure of the manager to comply with the regulations may result
in his or her removal as manager or suspension or revocation of the
liquor license as the Board finds appropriate given the specific circumstances.
A.
In addition to submitting all of the liquor license application documents
as may be required by the Alcoholic Beverages Control Commission (ABCC),
the applicant for a liquor license of any type must submit a letter
to the Board summarizing its proposal and requesting a public hearing
before the Board. The Town Manager and Chairman of the Board will
jointly assign a date for such public hearing. As part of the application
process, the applicant must provide payment for the publication of
a legal notice to appear in a local newspaper for two consecutive
weeks prior to the assigned public hearing, in accordance with Chapter
138. At the public hearing, the Board will consider the application
for a liquor license and the input of any interested members of the
public. The Board's decision on the application will be communicated
to the applicant in a timely manner. The Town will provide a copy
of the regulations to each licensee at the time the new liquor license
is issued and at the time of license renewal. The licensee shall sign
a receipt to be maintained at the Town offices evidencing the licensee's
receipt of a copy of the regulations.
B.
In reviewing applications, the Board has very broad discretion to
determine whether to issue a license in the Town of Nantucket and
whether such license would serve a public need in such a manner as
to protect the common good.
The Board will also consider any or all of the following additional
information that can be reasonably offered in support of a particular
license application:
A.
The applicant is a qualified veteran's organization and seeks a club
license.
B.
The applicant proposes an establishment that offers a regular forum
for music and musicians to play and obtain exposure for their work.
C.
The applicant offers variety, or uniqueness, in its proposed establishment
or shop, in contrast to what exists in Nantucket at the time of the
application.
D.
The applicant proposes an establishment that offers a substantial
economic benefit to the Town of Nantucket.
E.
Proposals for establishments to be located in high-density retail
areas, either as new licenses or transfers, are discouraged if the
proposed location duplicates what is presently located in the area.
Once a liquor license is issued by the Board, no substantial
physical changes to the licensed premises shall be made without the
prior approval of the licensing authority, which requires the filing
of an "Alteration of Premises Application." For the purpose of the
regulations, a "substantial physical change" is defined as a change
sufficient to require a building permit.
MGL c. 138, § 23
A.
Applications for transfer of ownership or location of a liquor license shall be considered an original application and processed as such. Current holders of liquor licenses hold no property rights in said license and the Board is not required to grant such transfer requests. To the extent permissible under law, the Board reserves the right to impose sanctions pursuant to § 207-16 upon existing licensees who attempt to transfer their licenses for compensation. Approval of a transfer of majority ownership further may be conditioned upon the proof of payment of all outstanding local, state and federal taxes, including, without limitation, the following: the remission to the proper taxing authorities of sales taxes, excise taxes and withheld federal and state income taxes. Transfers of ownership to trustees in bankruptcy, court-appointed receivers or assignees for the benefit of the creditors, and those taking title or possession of the licensed premises by, through or under them will not be deemed to transfer or convey any rights to the license or the renewal or transfer of such license, unless provided by contrary law. Bona fide mortgagees in possession who are listed in the application as holding such interest shall be treated in the same manner as the original majority ownership licensee. A public hearing before the Board shall be required for any transfers of ownership or location, including, but not limited to, transfers to mortgagees.
B.
In the case of a license transfer, as in the case of an issuance
of a license, the decision to approve the transfer of location or
ownership, or both, is at the Board's sole discretion.
MGL c. 138, § 14
A.
Holders of liquor licenses issued pursuant to the regulations are
not eligible to hold one-day or special licenses. Any person or establishment
that has submitted an application for a liquor license to the licensing
authority is likewise not eligible to simultaneously hold a one-day
or special license. The following types of organizations are eligible
for one-day alcoholic beverage licenses under the regulations:
B.
Other organizations may submit applications for consideration by
the Board. The fee for a one-day license shall be established by the
Board from time to time pursuant to MGL c. 40, § 22F.
C.
Applicants for a Nantucket temporary pouring license (a one-day license)
must complete the required application form, pay an application fee
established by the Board from time to time pursuant to MGL c. 40,
§ 22F, provide a valid insurance liability certificate
and obtain all signature approvals before being considered for the
granting of a one-day license.
A.
The following matters will be taken into account by the Board in
approving one-day licenses:
(1)
Admission age. The Board will not initially deny a one-day license
for a function at which minors are present, and require compliance
with the laws governing the sale or furnishing of alcoholic beverages.
(2)
Frequency. One-day licenses are to be issued primarily to applicants
sponsoring functions that are not held more than once annually. Except
for applicants that are in the business of catering or accommodating
individual functions, one-day licenses are not intended as an alternative
to a seasonal or annual liquor license.
B.
Acceptance of conditions. Acceptance of a one-day license by an applicant
under the regulations will be deemed to be an agreement on behalf
of the licensee to abide by the following conditions of the license:
(1)
Certification of servers. All commercial caterers must be licensed
by the Nantucket Health Department.
(2)
Hours of service of alcoholic beverages. For all one-day licenses,
the hours of sale and service shall be no later than 1:00 a.m. The
"last call" for all such licenses shall be no later than 12:30 a.m.
The function shall conclude no later than 1:00 a.m., at the same hour
as the license.
(3)
Number of persons on premises. The number of persons may not exceed
the occupancy limits allowed by law for the premises at which the
license will be exercised.
(4)
Police detail. The number of officers, if any, and the hours during
which a police detail will be required at the licensed premises and,
if required, for orderly parking and traffic control, will be determined
by the Nantucket Police Department. Generally, these hours will encompass
the entire duration of the function. The Nantucket Police Department
will consider the location of the premises, availability of on-site
parking, the number of persons estimated to be in attendance and the
time and duration of the function in making its determination.
C.
Additional provisions. The following additional provisions shall
apply to one-day licenses:
(1)
Departmental approvals. The Board of Health and the Building Department
must approve the licensed premises, including, where applicable, food
service equipment. For any function to which the general public will
be admitted, the Building Department must approve the licensed premises
as meeting handicap accessibility requirements.
(2)
Neighborhood impact. The applicant or such other person designated by name, address and local telephone number in the application will be responsible for the orderly conduct of the function for which the license is issued. Consumption of alcoholic beverages outside of the premises within which the licensed function is to be held will not be permitted. Music, noise, or other function-related activities must not create an undue imposition upon any adjacent residences, inns, guest houses and the like. (Refer to Chapter 101, Noise, of the Code of the Town of Nantucket.) Police detail officers will be instructed to respond appropriately to complaints. Such response may include an order to terminate the event or otherwise limit the offending activity.
(3)
Submission of applications. Applications must be complete with all
necessary endorsements when submitted to the Town Administration Office
and must be submitted a minimum of 10 business days in advance of
the date on which the licensed function is scheduled to take place.
D.
Application requirements. When submitted, each application must be
approved by the Town's Health Department, Fire Department, Building
Department, and Police Department (as to whether a police detail is
required). Final approval is given by the Town Manager, who is authorized
to approve, on behalf of the Board, one-day licenses meeting the requirements
of the regulations. Applications that are denied by the Town Manager
may be appealed to the Board for approval and shall be accompanied
by the Town Manager's summary of reasons for declining approval. The
Board must receive such appeals for approval no later than 12:00 noon
on the Tuesday of the calendar week before the week in which the function
is to scheduled to take place. A hearing must take place during a
regularly scheduled meeting of the Board. The applicant shall received
notice of the date and time of the hearing.
The regulations, in their most current form, shall be mailed
to all licensees with their renewal application and with each application
for change of the licensed manager. The regulations shall be appended
to each liquor license issued by the Board. The licensee may not pick
up his/her license until the licensee has signed a receipt acknowledging
that a copy of the regulations has been received. A copy of the most
current regulations shall be maintained at the licensed premises at
all times, and shall be available for inspection upon request. On
or as soon as possible after the effective date of the regulations,
the Town Administration Office shall mail a copy of said regulations
to each licensee in the Town.
Application and licensing fees for annual and seasonal liquor
licenses shall be set from time to time by the Select Board.
A.
The licensee shall ensure that the Nantucket Police Department, the
Nantucket Fire Department, and authorized agents of the licensing
authority have immediate access to the licensed premises at all times
and under all circumstances.
B.
No alcoholic beverages shall be sold to anyone under the age of 21
years. It shall be a defense to any alleged claim of sale of alcohol
to a minor if the licensee can show that the minor produced a valid
Massachusetts driver's license, a valid Massachusetts liquor identification
card, a valid passport issued by the United States or by a government
of a foreign country recognized by the United States government, or
a valid U.S.-issued military ID card. Licensees may accept out-of-state
licenses as proof of age but licensees shall bear the risk that such
licenses are invalid.
C.
A delivery of alcohol is considered a sale and must be received by
an individual 21 years of age or older, with proper identification
(off-premises license holders/establishments).
D.
The licensee shall ensure that all business taking place within the
licensed premises, and within areas under the licensee's control,
is conducted in a responsible manner so that no activity shall detract
from the quality of life in the Town generally, or in the neighborhood
in which the licensed premises is located specifically. This shall
include, but not be limited to, ensuring that there is no disorder,
unlawful use or sale of drugs, indecency, prostitution, assaults,
lewdness or gambling on or about the licensed premises.
E.
No alcoholic beverages shall be sold or delivered to an intoxicated
person.
F.
Alcoholic beverages may be consumed only from open containers (on-premises
license holders/establishments).
G.
No licensee may display any advertisement or sign on the outside
facade of the licensed premises upon which appears any brand name
of an alcoholic beverage product. Signage on the exterior of the premises
is subject to advance approval by the Historic District Commission.[1]
H.
No patron may remove any alcoholic beverage from the licensed premises,
unless the patron is removing from the premises a resealed bottle
of partially consumed wine as regulated by Chapter 138 and the regulations
of the ABCC (on-premises license holders).
I.
No patron may purchase more than two drinks at one time (on-premises
license holders/establishments).
K.
No licensee shall make any distinction, discrimination or restriction
on account of race, color, creed, sex, sexual orientation or ancestry
relative to admission to the licensed premises or treatment of any
person within the licensed premises.
A.
Purpose. The purpose of this section is to improve the ability of
the Board to prevent alcohol abuse and violation of the liquor laws
of the Commonwealth and the requirements of the regulations. It is
the intent of the Board that this section will help to achieve reasonable
uniformity in the imposition of sanctions and to avoid confusion in
the minds of the public, patrons and licensees due to a lack of understanding
of the consequences of violating the liquor laws and the terms of
liquor licenses. This section is intended to empower the Board to
consider the circumstances of each case and provide a mechanism for
which licensees can ensure their compliance with the regulations.
B.
General provisions.
(1)
No licensee shall permit any illegality to occur on the licensed
premises. The manager shall at all times maintain order and decorum
on the licensed premises and in the immediately surrounding area and
shall cooperate with Town officials in ensuring safe and orderly licensed
premises.
(2)
All violations of the liquor laws and the terms of liquor licenses
are to be reported to the Board by the Nantucket Police Department
or by any licensee or manager that becomes aware of an offense involving
the licensed premises within two weeks of said violation. Failure
to report a violation involving the licensed premises constitutes
a violation of the regulations and may subject the licensee to sanctions
in accordance with the procedure set forth herein.
(3)
Sanctions for offenses shall be consistent with the Town's general
goals of protecting public safety and the general welfare. Sanctions
will also be imposed with the goal of preventing future offenses.
(4)
The nature and severity of the sanctions imposed by the Board will
be decided according to the nature of the offense and the presence
of aggravating or mitigating circumstances as further described herein.
(5)
Sanctions may consist of any one or more of the following as appropriate:
revocation of license; suspension of license; criminal prosecution
of offenders by the Nantucket Police Department, including customers
and patrons as deemed appropriate by the Police Chief; and/or mandatory
participation in alcohol abuse and offense prevention programs.
(6)
The Nantucket Police Department is encouraged to recommend to the
Board the terms under which an offense be resolved. Any such recommended
resolution must be in writing, signed by the manager of the licensed
premises or license holder charged with the offense and approved by
the Police Chief. The recommendation must include a statement detailing
the facts determined in the police report and found as part of the
Department's investigation. The recommended resolution is not binding
upon the Town unless and until approved by the Board.
(7)
Depending upon the nature of the violation, if the Police Department
and the manager of the licensed premises and/or license holder charged
cannot agree on a recommended resolution, the Police Department will
make any additional investigation it deems necessary for a complete
presentation of the facts and will file a detailed written report
with the Board.
(8)
Notice is to be provided to a licensee of an alleged violation of
the regulations. The notice will include the date of the event giving
rise to the possible disciplinary action, a description of the event,
and a clear identification of the provision(s) of the regulations
that is/are alleged to have been violated as a result of the event.
Said notice will also provide the licensee with the date upon which
the Board will hold a hearing concerning the licensee's alleged violation.
A notice containing the above-mentioned information shall be sent
to the licensee via certified mail/return receipt requested no less
than 10 days prior to the date of the hearing before the Board. Licensees
are entitled to retain counsel to represent them at the hearing if
they so desire.
(9)
The procedures stated in the regulations shall be an indication of
the range of sanctions available to the Board. The Board will refer
to these guidelines in deciding whether to approve a negotiated recommended
resolution.
(10)
The Board may consider but is not required to accept a negotiated resolution recommended by the Nantucket Police Department. The Board is empowered to consider alternative sanctions consistent with § 207-16 of the regulations, and applicable state law.
(11)
The Nantucket Police Department and the Board will maintain
a public record of offenses and their dispositions that will be indexed
according to the licensee/manager, server and purchaser involved.
(12)
In the event that the Board decides to deny an application for
a new license, refuse to issue a license or modify, suspend, revoke
or cancel a license, the Board will provide the licensee with a written
statement of reasons such action was taken against the licensee, a
copy of which will be simultaneously mailed to the ABCC.
C.
Determination of sanctions. Sanctions will be determined according
to the following procedure:
(1)
Offenses for which the Board may issue sanctions include, without limitation, those offenses as listed in Subsection D of this section.
(3)
The Board may take into consideration the number of violations involved
in the particular offense.
(4)
The Board may take into consideration the alleged offender's acceptance of responsibility as described in Subsection F.
(5)
The Board shall also consider any relevant actions taken by the ABCC.
(6)
The Board may take into consideration previous written warnings issued
by the Town to the licensee. The Board may consider the date(s) of
the written warning(s), the reasons therefor, and the similarity of
the incident resulting in the warning with the incident at hand.
D.
Common offenses.
(1)
Sale outside of permitted hours (MGL c. 138, § 12);
(2)
Purchase by person under age 21 (MGL c. 138, § 34A);
(3)
Employment by licensee of person under age 18 for direct handling
or selling of alcohol (MGL c. 138, § 34);
(4)
Sale or delivery to a person under age 21 for own use or for use
of another (MGL c. 138, § 34);
(5)
Sale to an intoxicated person (MGL c. 138, § 69);
(6)
Hindering or delaying an investigation by the ABCC or authorized
agent of the Board (MGL c. 138, § 63A);
(7)
Failure to post notice of penalty for driving under the influence
and driving while drinking from open container of alcoholic beverage
(MGL c. 138, § 34D); and
(8)
Failure to comply with section 204 CMR 4.03 of the ABCC regulations,
which, in pertinent part, provides as follows: No licensee or employee
shall:
(a)
Offer or deliver any free drinks to any person or group of persons;
(b)
Deliver more than two drinks to one person at one time;
(c)
Sell, offer to sell or deliver to any person or group of persons
any drinks at a price less than the price regularly charged for such
drinks during the same calendar week, except at private functions
not open to the public;
(d)
Sell, offer to sell or deliver to any person an unlimited number
of drinks during any set period of time for a fixed price, except
at private functions not open to the public;
(e)
Sell, offer to sell or deliver drinks to any person or group
of persons on any one day at prices less than those charged the general
public on that day, except at private functions not open to the public;
(f)
Sell, offer to sell or deliver malt beverages, wine or mixed
drinks by the pitcher or in other community-type container commonly
referred to as a "scorpion bowl" (Nothing in this subsection shall
be construed to prohibit the sale of pitchers of beer.);
(g)
Increase the volume of alcoholic beverages contained in a drink
without increasing proportionately the price regularly charged for
such drink during the same calendar week; and
(h)
Encourage or permit, on the licensed premises, any game or contest
which involves drinking or the awarding of drinks as prizes.
E.
Aggravating circumstances.
(1)
Failure to request identification card, operator's license or passport;
(2)
Juvenile appearance of underage purchaser;
(3)
Use of altered identification;
(4)
Refusal to cooperate in investigation;
(5)
Multiple sales to an underage purchaser on same occasion;
(6)
Quantity of beverage sold;
(7)
Staff not suitably trained;
(8)
Underage server;
(9)
Violations of other laws such as: prostitution, solicitation, drugs,
gambling, disorderly conduct, cigarette sales to minor;
(10)
Concealing violation(s);
(11)
Furnishing false information to investigator;
(12)
Exceeding lawful capacity of licensed premises;
(13)
Intimidating or coercing witnesses or attempting to do so;
(14)
Offense occurring while under suspension or penalty;
(15)
Sale occurring while license suspended; and
(16)
Occurrence of any personal injuries or fatalities related to
the underlying violation.
F.
Mitigating circumstances.
(1)
Reasonable reliance upon identification card, an apparently valid
motor vehicle operator's license, United States passport, passport
issued by a country recognized by the United States government or
United States issued military identification card for proof of identity
or age. (MGL c. 138, § 34B);
(2)
Acceptance of responsibility by the licensee as shown by:
G.
Imposition of sanctions.
(1)
The Board's imposition of sanctions will be consistent with the regulations
and any applicable state statutory provisions. Note that these are
guidelines only. Those persons who violate said regulations or state
statutes may expect one or more of the following consequences as appropriate
in the sole discretion of the Board:
(a)
Suspension of license for a stated number of days. Licensees
are advised that the following chart only represents guidelines for
use by the Board when making its final decision in response to a liquor
license violation. The Board, in accordance with the aggravating or
mitigating factors as presented above, shall retain the authority
to deviate from these guidelines in such cases as it deems appropriate.
|
Violation
|
Sanction
|
|---|---|
|
First violation
|
Written warning
|
|
Second violation
|
1-day to 2-day suspension
|
|
Third violation
|
3-day to 4-day suspension
|
|
Fourth violation
|
5-day to 6-day suspension, regardless of amount of penalty suspended,
if any
|
|
Fifth violation
|
7-day to 15-day suspension
|
|
Sixth violation
|
16-day to 30-day suspension
|
|
Seventh violation
|
31-day to 1-year suspension, or revocation; or revocation of
license and prohibition on reapplying for a 1-year period
|
(b)
Suspension of license for a stated number of days with a portion
of the suspension deferred upon condition that no further offenses
occur within a specified period of time and that licensee waives its
right to hearing upon such further offense.
(c)
Revocation of liquor license or suspension for a specified period
of time after a hearing for cause.
(d)
Mandatory participation in prevention program(s) by licensee/manager
and server as appropriate.
(e)
Public notice of the offense and disposition.
(2)
While the Board will endeavor to impose sanctions upon licensees
in a manner consistent with the regulations, where exigent or special
circumstances warrant, such as a violation of the regulations resulting
in serious personal injury or death, the Board retains the authority
in such circumstances to immediately order a full hearing, provide
the licensee an opportunity to present evidence, and to revoke a license
where the evidence so warrants such an action by the Board.
H.
Reporting of violations and penalties imposed.
(1)
The Board shall receive annual reports from the Nantucket Police
Department detailing violations of the regulations for the reporting
period, and the sanctions imposed by the Board for said violations.
Reports shall be submitted to the Board no later than November 1 of
each year. The Board will use these reports to analyze the factors
that are commonly associated with violations, such as over-serving,
underage serving, absence of serving training or registration, etc.
(2)
As previously stated, the Board reserves that right to amend the
regulations as it deems necessary. It is the responsibility of the
licensee to keep abreast of any changes to the regulations that may
affect its establishment.
