Borough of Point Pleasant Beach Jenkinsons Pavilion ABC License Hearing
The Mayor and Council of the Borough of Point Pleasant Beach met at 6:40 PM with Council President Loughran and Council Members Mercun, Tooker, Cervino, Dixon and DiCorcia present. Mayor Barrella was absent due to previous commitment. The Municipal Clerk read the notice indicating compliance with the Open Public Meetings Act.
Council President Loughran set a time limit of 10PM for meeting and opposing Counsels agreed.
Borough Attorney Gertner: discussed hearing procedures with the attorneys for both the applicant and objectors – the Clerk will lay a foundation by testifying as to what the records of the Borough show – Police Chief will testify, primarily, about the noise complaints that have been received – there has been a flurry of correspondence between the parties in the last 48 hours – attorneys will expand on this – there are two issues that have been addressed by the objectors – one issue is noise emanating from the site and the other is whether or not the original 1979 expansion was properly granted – the applicants will present their case and have the right, at the end of the objector’s case, for rebuttal – the objectors will present their case – Council will have the opportunity to deliberate and enunciate basis for any voting.
Municipal Clerk was sworn in and testified: received several noise complaints – following ABC regulations, scheduled hearing before renewal, which was publicized – both complainants and liquor license holder were notified; current tax maps were revised in 1982 – liquor license was expanded to north pavilion in 1979 – tried to find something that showed how the property looked at or around that time – presented exhibits marked into evidence as B1 (map dated 3/28/1980) and B2 (including property record cards and building sketch from 1988 revaluation, photograph of the property dated 11/23/85 and resolution that expanded the license to the north pavilion).
Chief DePolo was sworn in and testified: received two noise complaints in 2005, three in 2006 and eleven in 2007 – complaints revolved around noise from music from both bands and DJ’s – no summonses were issued over the summer of 2007 – no substantial problems with noise complaints prior to 2005 – Police Department does not have a decibel meter for noise ratings – noise complaints were received between 4:24 p.m. and 9:20 p.m., primarily on weekends – three to four received on the same day – mostly from different residents in Harborhead condos.
Ron Gasiorowski, Attorney for Jenkinsons: asked Chief to corroborate noise complaint analysis marked Exhibit A1 (had one more complaint, on June 30th, that wasn’t listed in the analysis) – introduced Exhibit A2, aerial photograph of site as it basically presently exists – noted that 3 individuals made up basically 80% of the complaints – asked if there were any complaints of public drunkenness or failure of the manager to cooperate with police officers (no) – asked how noise ordinance is enforced (common sense approach).
Roger McLaughlin, Attorney for Objector: asked Chief DePolo to corroborate document, provided through OPRA, containing incident reports for Jenkinsons North for the period of 7/01/06 to 12/31/07, which was marked as exhibit O1 and includes all documentation of complaints anytime police were called to the site (corroborated) – includes noise complaints as well as other complaints not listed on Exhibit A1 – asked Chief how Police Department enforces DEP noise regulations and noise ordinance, that include decibel levels, without using a decibel meter (common sense – what the officer believed was unreasonable noise).
Attorney Gasiorowski: asked about Chief’s credentials and how long he’d lived in Point Pleasant Beach; introduced exhibit A3, copy of resolution, dated 5/01/79, which expanded the Jenkinsons Pavilion liquor license to the north pavilion; asked if Chief was aware of the presence of what is currently known as Jenkinsons North prior to 1979 (yes) and aware that Jenkinsons made an application to the municipality to have that license extended to that north facility (no) – asked Chief if Harborhead Condominiums were in existence in 1979 when Jenkinsons expansion took place (no); Jenkinsons North did not construct a commercial establishment adjacent to a residential complex, but rather, it was Harborhead that chose to build their complex in proximity to a commercial establishment – anybody who would have purchased these units, particularly along the front, were aware of this building and facility (cannot testify as to their awareness).
Attorney McLaughlin asked Chief DePolo: if he was aware that all the property was originally owned by Jenkinsons and Jenkinsons sold the property to the individual who built Harborhead (yes); when the North Pavilion turned into the Inlet Bar and Grill (didn’t recall); if north pavilion, when license was transferred, was a beach pavilion serving beach goers hotdogs, hamburgers (yes); if operated during the day to serve people that were going to the beach (primary operation was during the day); if it was still used in 1979 as a beach pavilion serving simple food items to people going to the beach and the only difference was they could serve a beer since they had a liquor license (yes, as best as he could recall); asked if it’s a fair representation to say that there are a number of things that currently happen at-the Inlet Bar and Grill – it’s a banquet facility people rent to hold parties (yes) – operates as an establishment where alcohol is served, music is played and its open beyond daylight hours (yes) – the banquet type of facilities/events that take place there involve people renting the establishment, or portion of the establishment to hold birthday parties, sweet 16 parties, or other types of celebrations (Attorney Gertner: I’m not sure that the witness can testify to the business arrangement; Chief DePolo: aware that businesses have corporate parties) – asked if that type of activity was not taking place at that location between 1979 and the early 1980’s (couldn’t answer ) – asked if there is any value to the Police Department having a decibel meter and certified operator (another tool, but officers certified to use it have been frustrated because cases involving them are very difficult to prosecute – municipal prosecutors have felt that its just not a worthwhile tool).
Councilman Mercun: asked Chief what time establishment closed in 2007 (didn’t know when they actually closed their doors – liquor license laws mandate closing by 2AM).
Councilman Loughran: Mr. McLaughlin asked about other licensed establishments which were as close to residences as Jenkinsons – number of them in town-that are within, and maybe even closer than Jenkinsons North, such as the Ark, Broadway, Offshore, Marlins and VFW (correct).
Councilman Dixon: asked if any of the callers ever signed a noise complaint (no)
Councilman DiCorcia: asked if they were ever asked to sign a complaint (always given the opportunity) – there are no decibel readings, no levels – the issue is noise and offices are instructed to use common sense (correct).
Attorney McLaughlin: asked, when speaking about the other establishments that are as close as 50 feet to residential units, how many have music outside (the VFW might have occasional bands outside for their barbecues during the day).
Councilman DiCorcia: have music at Elks occasionally.
Attorney McLaughlin: asked if Chief was aware that the Inlet Bar and Grill uses the beach itself for catered events (knew they have platforms on the beach, outside the building) – they use platforms on the beach – people are actually on the beach and music is played on the beach (people are on the platforms, but as far as a band being out there, couldn’t testify to that)- asked if the building is open to the beach area (have pull-down garage doors – opening those garage doors would open up the complex – there’s a deck in the back and actually, on the north side, I think there’s a deck).
Attorney Gasiorowski: objected – whether or not there’s music played, which could be heard on the beach is irrelevant – Jenkinsons has an easement to utilize that beach.
Attorney McLaughlin: not irrelevant to the question of whether or not this licensed premises is unique or different from the other licensed premises in town – not irrelevant to the level of noise that would be experienced by the residences that are only 50’away – the music that’s played, regardless of how it’s played, is exposed to the outside (couldn’t say whether they’re inside or sometimes they’re outside) – when garage doors are open, certainly it’s exposed to the outside (correct) – if it’s on the beach, certainly it’s exposed to the outside (correct) – that’s different than the other licenses in town that Councilman Loughran mentioned, with the exception, perhaps, of the occasional outdoor Elks party (Martell’s and the Patio Bar both have outdoor music) but Martell’s doesn’t have residences within 50 feet.
Attorney Gasiorowski: asked if complaints list name of officer responding (correct) – if all of these officers are trained to make decisions as to whether or not violations of local ordinances are taking place or have taken place (yes) and if that would include noise ordinances (correct) – if any of those officers signed a complaint against the owners of Jenkinsons North (no) – if Chief considered two noise complaints in 2005 and three in 2006 a tolerable situation (obviously, would like to have none – but two is really the price of doing business) – if flare-up in 2007 was some kind of aberration (unusual) – if Chief was aware that the employee who was responsible had been fired (no).
Attorney McLaughlin: asked Chief if fact that officer did not sign a complaint meant there wasn’t a violation (objection) – asked if officers are trained to attempt to resolve situations like this between residents and businesses, during the summer months, to try to keep the peace (Borough Attorney: that’s been asked and answered as the Chief has talked about the way these ordinances have been enforced as a reasonable person, common sense approach) asked if Chief agreed with Attorney Gertner (agreed with both of their statements).
Councilman Mercun: commented on Attorney McLaughlin’s letter, covering 1) objection to 1979 extension of the premises to Jenkinsons North and statement that resolution was in error, 2) opinion there should be no renewal until all zoning approvals are obtained, and 3) opinion that the North Pavilion operation is a nuisance and harmful to the quality of the life because of the noise – requested that focus remain on these issues – asking questions of Police Chief that he can’t answer is subjective – wants to hear from the residents – process could move along more quickly if the witnesses called are examined for the knowledge they choose to share – concern of this hearing is the operation of Jenkinsons North and should stay focused on that.
Borough Attorney: balance needs to be struck – would like to make certain that questions of witnesses are pointed as much as possible to what their specific knowledge is – obviously no one wants to inhibit the making of a record – asked opposing Counsels to make brief, three-minute opening statements which may help to focus the Council on what they plan to show.
Attorney Gasiorowski: starting point of this particular matter was that the license in question was expanded to what is known as Jenkinsons North in 1979 – will show that, at the time of expansion, Jenkinsons owned what is referred to as Lot 3 and all of Lot 2, which consisted of all of the property east and west of the Boardwalk, at which Harborhead Condominiums is presently located – a contract was entered into between the developers of Harborhead and Jenkinsons in which all of the property east and west of the Boardwalk was purchased, except for that area where Jenkinsons North Pavilion is located – the reason they did this was because they needed all that area, when they came before the Planning Board, for the density issue of 60 units at Harborhead – after acquiring property, Jenkinsons was granted an easement in perpetuity to utilize all of Lot 2, which consisted of the beach area – there is an agreement which says that if the residents of Harborhead have a problem, it can be corrected by giving notice to Jenkinsons, who must rectify within 270 days; in 1981 Jenkinsons created what is now known as Lot 3 – that license has remained there for 30 years of uninterrupted service through all renewals – in the 1994 renewal hearing, the previous attorney for Harborhead Association admitted that Jenkinsons North had a right to be there and didn’t question the right of Jenkinsons North to have the license at that sight – they questioned loudness of noise – prior Council listened to that testimony and renewed their license with no conditions attached – from 1994 to 2007 there have been basically no complaints – seemingly 2007 was an aberration – upon proceeding with applicant’s case, will outline what actions will be taken to ensure this does not happen again.
Attorney McLaughlin: three issues raised on behalf of Harborhead residents; first issue is whether or not ABC license can be legally renewed at the north pavilion – clarified that there is one license that pertains to both Jenkinsons main pavilion and the north pavilion – objections pertain only to the north pavilion area – explained rights of the local ABC Board to approve, deny or renew licenses with conditions – opined that what Council did in 1979 was illegal and does not bind present Council – what prior counsel for Harborhead did in 1994 is irrelevant from legal perspective and not binding on either current residents of Harborhead or current Council – question is whether it’s proper, under ABC law, to allow a license to be utilized at two disparate locations, separated by thousand of feet, and a number of other properties; second issue is zoning – not up to this Council to make zoning decisions, but it is reasonable, proper, appropriate and legal to make any licensee get every zoning approval necessary for its operation – Borough record is clear that Jenkinsons has never gotten any approval for the north pavilion – they have been told repeatedly, over the years that they need to go before the Board of Adjustment – Council should not renew their license until they do; third issue is noise complaints – Council will hear from the residents of Harborhead.
Councilman DiCorcia: asked, if it was Attorney McLaughlin’s contention that, in 1979, the Governing Body illegally made this transfer to the north end (yes) – asking for jurisprudence beyond Council’s control – Council is meeting to hear a noise complaint.
Borough Attorney: reiterated that there has been a flurry of activity within the last 48 hours – applicant should have the opportunity to research and respond to that if they so choose.
Councilman Mercun: looked at case supplied by Mr. McLaughlin – does present a significant issue – need some legal research on the subject matter.
Borough Attorney: understands Mr. McLaughlin’s argument – the applicants haven’t really had the opportunity to respond to that – judges, in certain circumstances when expert witnesses are not available, allow case to go forward with testimony of witnesses that are available – Council could reserve on making those decisions – applicant is here – paid for an expert to speak on noise – objectors are here, and some folks who will testify only as to noise – ask that even though that is a dispositive question, that these experts be allowed to proceed with testimony – the applicant should be guided by putting on testimony which would provide some factual foundation to that legal question – perceives that some of those questions are issues of the easement, agreement which touches on noise complaints, and some of the fundamental 1979 questions – asked that Council proceed so that witnesses that are here and public that’s been noticed may be heard (Councilman Mercun: all parties interested should realize that no decision will be made tonight in order to give Council the opportunity to obtain the required information – both Counsels should present Council with facts that will either support or distinguish this application from the “Circus” case – would like to hear the evidence).
Attorney Gasiorowski: did in fact respond to Mr. McLaughlin’s letter, with copy to Mr. Gertner – referring to “Circus” case, which dealt with a State Statue requiring that no one person can own more than 2 licenses – admittedly, this person owned three licenses – renewed on a yearly basis and, when questioned, acknowledged this was a violation of the law – court ruled issuance of that third license was basically void – never should have issued it because it was legally improper to do so – based on that that, license was not renewed – problem with Mr. McLaughlin’s argument is that these are conclusions being made by Mr. McLaughlin – disagreed that applicant has to go back to 1979 and re-prove what was done then.
Attorney Gasiorowski: called Robert Hazer who was sworn in and testified: was manager at Inlet Restaurant and Bar from 1980 to 1982 – currently employed by Casino Beach Pier in Seaside Heights, which is affiliated with ownership of Jenkinsons North – employed by one or the other for 28 years – physical facility of Jenkinsons North is basically the same today as it was in 1980 – had live music on weekends, in early 80’s, with parties during Benihana Grand Prix and tube race – haven’t been there today or this year, but would assume the type of facility and entertainment present in 1980 is same thing as is present today.
Attorney McLaughlin: asked about the last time he was there when the establishment was open (was there earlier this winter, but doesn’t recall when he was there when it was open in the summer – maybe 1990’s); if there were any condos across the Boardwalk in 1980 (started building in 1981 or 1982); if their were platforms on the beach (wooden one by two platforms) – asked when they were open (8:30 or 9:00 at night).
Edward R. McGlynn, General Counsel to Jenkinsons Pavilion since 1995, was sworn in and testified: noise complaints were brought to the attention of principals of Jenkinsons and he was instructed to embark upon course of conduct that would remedy the problem – never met bar manager, but was told he was fired – met with representatives of Harborhead, in Mr. McLaughlin’s office, and discussed what the principals of Jenkinsons were willing to do in 2008 to ameliorate their concerns – sought out professional assistance with regard to curing possible noise problem – Florida sound company provided quote for new sound equipment – hired sound engineer to testify this evening and discussed with him possible proposals to be implemented at the site – intend to purchase sound suppression system controlled by computer, with safeguards to prevent musicians and disc jockey’s from producing sounds louder than the computer will allow – represented to complainants that band size would be limited to three – have steel drummer, but would ban playing of snare-based drums, tom-toms, floor tom-toms, cymbals, etc., as well as horns – also told them live music would cease by 10:00 p.m.; informed Council that he was the Borough Attorney in 1979, when the original license expansion occurred and before his career in state government as Deputy Attorney General, Deputy Chief of Staff and Chief of Staff to the Governor – tendered resignation as Borough Attorney in March of 1982 upon entering State service – had no affiliation with the applicant until 1995.
Councilman Cervino: asked about conditions (referred to them as “Memorandum of Understanding” – live music limited to no more than 2 instruments with provisions on drums and horns – installation of sound suppression system, controlled solely by Jenkinsons personnel – cessation of live music by 10PM at the Inlet – provision of new manager’s cell number.
Attorney McLaughlin: asked if meeting in his office was in response to letter addressing issues and complaints of Harborhead residents (yes); about whether Jenkinsons had obtained any use variances or site plan approvals for Inlet Bar and Grill from the Planning Board or Board of Adjustment (no, but there is certainly a legal question as to whether or not that is required).
Alexander Litwornia, President of Litwornia Associates, an environmental, traffic and transportation firm located in Medford Lakes, was sworn in and testified to questions posed by Attorney Gasorowski: professional engineer working in traffic, transportation and noise for about 30 years, including sound barrier designs for roadways, noise barriers for gas stations and kennels – reviewed and worked on designs for improving noise levels at various nightclubs with outdoor music – testified before and represented numerous Planning Boards and Boards of Adjustment throughout the State of New Jersey – holds New Jersey certification to read decibel meters and issue citations – will provide curriculum vitae to supplement the record; reviewed Point Pleasant Beach noise ordinance as pertains to police powers to enforce noise violations – reviewed DEP regulations for noise violations, including standards which call for different decibel readings in daytime (7AM – 10PM) and nighttime (10PM – 7AM) – summer noise from beach and sound of conversations from people on the Boardwalk or in a bar or restaurant are not regulated – amplified voices are – Rutger’s course defines noise as unwanted sounds – noise(s) are not necessarily violations of State statute – what one person considers a violation may not meet the criteria of being over 65 decibels and meet the State statutes of what is required – amplified sound is regulated by statute – walked the site and reviewed literature on proposed sound suppression system – couple of ways to reduce sound – one is to reduce the source and minimize the amount that’s coming out of the source – the other is to create a barrier between the sound and the receptor as most sound travels in a straight line of sight – was retained by applicant to look at proposed solutions and make recommendations – a programmable amplifier is different than instrument amplifiers – program the maximum volume and at the same time take noise reading with a certified meter at receptor, where noise will be cut to meet state standards – after it’s calibrated, anyone turning the amplifier to maximum setting will not exceed state standard – to have the amplifier operate properly, need to also have directional speakers installed so that the sound is aimed away from the residences and towards the ocean – agree with smaller bands of two people with no drums or horn instruments – no live bands after 10PM is necessary due to change in state standards, after 10PM, from 65 to 50 decibels – bands are usually situated in the northeast portion of the rear of the building, so suggested construction of a sound wall or sound barrier that would direct sound away from the receptors, which are the condominiums – the wall would direct the sound toward the ocean and inhibit it going towards the residences – explained DEP criteria and how noise is measured – applicant has agreed to utilizing the above-mentioned sound suppression recommendations, which when completed will achieve compliance with NJ DEP noise standards – an additional consideration would be to close or modify some of the door entranceway in the front of the building.
Attorney McLaughlin: asked Mr. Litwornia: if he had reviewed proposal of Florida sound engineer (yes); if he had ability to analyze proposal to determine whether it would be successful and compliant with State regulations (feels proposals will work, but programmable amplifier is something that has to be adjusted in the field); if music was played outside on the beach area, what would keep noise from violating the State regulations at the residential property line (package of things already enumerated in testimony); clarified that all music, whether live, recorded or played by DJ, would go through the programmable sound system (yes) and that ownership would control the programming (yes); if Mr. Litwornia’s firm would perform initial calibration (yes) and how, if Borough doesn’t have a decibel meter and certified personnel to operate it, will the Borough know on an ongoing basis, that the system complied; how long it would take to test and calibrate a new sound system for the Inlet Bar & Grill (probably two months); how many decibels it takes to shake a building (would have to look at the specific building to see how it’s built and constructed).
Councilman Cervino: asked Mr. Litwornia why applicants hadn’t already implemented these proposals, given the history (prior to last year, only had one or two complaints – addressing now – felt that complaints were due to renters of facility providing their own bands – thought rental agreement should be looked at more carefully); what decibel is harmful to human hearing (over 80 or 90 continuously – usually the pain threshold is 120 or 130).
Mr. McGlynn: part of the “Memorandum of Understanding” is that there would be a provision in contracts with whoever was leasing the facility that they would have to use that sound system and not bring their own amplification.
After some discussion, it was decided to continue the hearing to May 13, 2008 at 7:30PM.
Attorney Gertner: asked that Attorney McLaughlin provide amplification of his previous correspondence, with evidentiary attachments, within the next five days and that Attorney Gasiorowski provide his response by May 9th, so that he could review both and provide comments to Council before the 13th.
Meeting was adjourned at 9:55 p.m.
