Borough of Point Pleasant Beach Wharfside ABC License Expansion Hearing
The Mayor and Council of the Borough of Point Pleasant Beach met at 6:43 PM with Mayor Barrella and Council Members Loughran, Tooker, Cervino, Dixon and DiCorcia present. Councilman Mercun was absent. The Municipal Clerk read the notice indicating compliance with the Open Public Meetings Act.
Clerk Ellsworth explained that this was a special meeting of the Borough Council to rule on Wharfside’s ABC license application, for change in corporate structure and place-to-place transfer, for the purpose of expansion. Council is required to hold a public hearing on the matter because the Borough received a complaint letter.
Borough Attorney Gertner provided instructions to the Council: pursuant to NJSA33:1-4, it is the municipality’s duty, as the authority authorized to receive applications and issue licenses, to investigate applicants, to inspect premises seeking to be licensed, to conduct public hearings on applications and revocations, to enforce primarily the provisions of the particular chapter and to render decisions regarding same, particularly in light of the objection that was filed – Council’s sits, akin to a Board of Adjustment hearing, in a quasi judicial fashion – are charged, under your duties and obligations as sworn Council Members, to listen fairly and intently to the evidence, to render decisions using common sense, and to approach the issues in a fair fashion; thanked Clerk Ellsworth who did a lot of work to prepare Council, to be fair to the applicant, and to show what her perception is, as the record keeper; attorney acts as referee during hearing and will try, with the Mayor, to set forth the position of the Clerk as she perceives what is before us – will hear from Chief DePolo, as to what sort of complaints have occurred at the premises – will then turn the matter over to the applicant’s counsel to call witnesses/testimony – will open the matter to the public – Governing Body members can ask questions at any given point.
John Jackson, Esq, Counsel for the applicant, Chef’s International T/A The Wharfside: disagreed about having a hearing based on the complaint, which he claimed was not about the liquor license but against the Planning Board application for an addition – when submitted, there was a pending person-to-person transfer due to change in ownership from a public company to a group of private investors, which was held in abeyance pending completion of Police investigation –– that application, prepared by Michael Lombardi, an attorney and principal in Chef’s International, listed the entire premises of the Wharfside operation, for the first time – discussions with Clerk Ellsworth uncovered that the Patio Bar was not part of the licensed premises dating back to the 1970’s – the liquor license indicated lot numbers that did not include 98% of the property where the liquor license was located – here to straighten out that disparity.
Exhibit B1, Waterfront Development Plan dated 10/02/03, was submitted by Clerk Ellsworth and entered into evidence. Exhibit B2, showing tax lots owned by the Wharfside, was also submitted into evidence.
Attorney Jackson: the lots that were submitted on the liquor licenses are shown in the yellow area on B1, current restaurant and covered area – outside area to the left, where the Patio Bar is, was omitted – the liquor license had been renewed year after year for the enclosed structure of the Wharfside, but not the Patio Bar itself – with each renewal and Police investigation, the fact that the Patio Bar area was omitted was never discovered – liquor license renewal was intended for the Wharfside’s whole property – omission of the property in question was an administrative oversight on both parts – would like opportunity to correct the record – when Clerk Ellsworth gives her testimony, she will state that the area in the pink was never licensed – applicants will not concede to that, based on history, estoppels, usage, etc. – described the expansion application, approved by the Planning Board – Wharfside is an asset to the community and one of the anchors on Channel Drive – expansion would further promote that area – Exhibit A1, a document, created by Barlow and Associates, displaying elevations as submitted to the Planning Board, was marked into evidence (marked A4 at Planning Board meeting).
Upon questioning by Atty. Gertner, Atty. Jackson stated that he is not before Council, at this point, to ask to expand the liquor license, as per Planning Board approvals.
Mayor Barrella questioned, if application was acknowledged to cover lots 4, 5 & 6, in addition to lots 1, 2 & 3, would any construction on those lots be considered ministerial, so that applicant need not seek Council approval for expansion of the license to cover that construction.
Attorney Jackson agreed, on behalf of Chef’s International and the Wharfside, that any expansion into an additional structure would constitute an expansion of the liquor license and would not be permitted unless approved by the Council.
Attorney Gertner further explained that expanding the liquor license to those lots does not cover any future structure built on those lots.
Mayor Barrella asked Attorney Jackson to stipulate that no future reference will be made to this hearing in any other application and Attorney Gertner explained exactly what that meant… it would be de novo hearing, viewed on its own merits….action this evening may not be used as a basis for the proposed expansion.
Attorney Jackson indicated that they were not seeking liquor license coverage approval for the expansion granted by the Planning Board at this time, because they are still in front of CAFRA and the DEP may not approve this.
Attorney Gertner asked for stipulation that Chef’s International would make liquor license expansion application prior to building permit application.
Attorney Jackson agreed – stated that Mr. Cooper and Mr. Fletcher, of Chef’s International, were present and had worked for Chef’s International since 1981 and 1966, respectively – model corporate citizen, celebrating its 50th year.
Councilman DiCorcia: oversight on management’s part that Patio Bar was operated without approval from the Governing Body – asking for forgiveness rather than permission to operate.
Attorney Jackson indicated that there were prior bars on the property – Mr. Baker’s understanding is that they got approval, but they, as well as the Borough, can’t locate copies.
Chief of Police DePolo and Municipal Clerk Ellsworth, were sworn in.
Clerk Ellsworth testified that the Change of Corporate Structure Application was filed in August, 2006 – all records on file indicate that the licensed premises were and are 101 to 105 Channel Drive, which encompasses lots 1, 2 and 3 – when the new application came in, it showed 6 lots and 4 buildings – this was an expansion to the old license from 3 lots to 6 and from 2 buildings to 4 – Clerk Ellsworth pointed out the two buildings in question, a 1-story building and a 2-story building – the area adjacent to them, which was licensed as well, is the open area deck with canvas awning; Clerk Ellsworth indicated that most applications are pretty specific – noted that page 3 of the application, for 1994-1995 renewal, denotes the entire building is to be licensed, as well as the adjacent ground.
Mayor Barrella: asked if application indicated inclusion of that back deck or adjacent property – adjacent could be interpreted as adjacent in proximity.
Clerk Ellsworth: no – as it is very specific – lot 1 is 101 Channel Drive, lot 2 is 103 Channel Drive and lot 3 is 105 Channel Drive – license doesn’t extend beyond 105 Channel Drive, which is lot 3; map submitted with application of August 2006 showed lots 1-6 – questioned which buildings on lots 4 through 6 were being licensed – current license encompasses a 1-story framed building in the back and 2-story framed building in the front, along with the open air deck – 2006 application, page 3, states 4 buildings are to be licensed: building 1 of 4 is main building, 2 of 4 is the Patio Bar, 3 of 4 is an outdoor patio food prep, kitchen and storage area, and building 4 of 4 is outdoor storage sheds – any adjacent area is marked ‘yes’ and indicated as the outdoor patio area.
In response to Councilman DiCorcia’s question about the Patio Bar never being licensed, Attorney Jackson replied that the area was licensed by Clerk Winkelhofer when it was a snack bar.
Councilman DiCorcia: after noticing the Patio Bar had doubled in size, asked how management could allow an expanded facility with no lavatory facilities nearby – Building Department claims that’s what’s been there – discrepancy when the right hand doesn’t know what the left hand is doing.
Mayor Barrella: Attorney Jackson claimed that you can’t go block and lot every year when renewing – understands counsel’s arguments that the theory of estoppels or laches applies here – but if your management can’t be held to that standard, than certainly the Borough can’t be held to that standard.
Attorney Jackson: honest mistake that no one picked up before – there was a fire in 1987 and major rebuilding – never anticipated the popularity this past summer – bathroom issue is a major problem – patrons have to go inside (the main restaurant) and it’s a long wait – Planning Board approved a temporary bathroom that will be added through a trailer this summer.
Councilman Loughran: asked about summer 2007 expansion of Patio Bar (it was the area toward the lobster dock….there all along – from river to lobster dock, 15’x35’).
Mayor Barrella: asked why, when the application came in August 25, 2006, seeking the place-to-place transfer and change of corporate structure, the hearing was not in March 2007 instead of March 2008; Clerk Ellsworth: was a large change in stockholders, which Police Department had to investigate –couple of the principals live in Florida and so it took a while for the Police to complete their investigation and fingerprinting; what was noted, at that time, was that they were going from 2 buildings to 4 and from 3 lots to 6 – Borough didn’t realize that the Patio Bar sat on lot 4.
Attorney Jackson: management wasn’t aware Patio Bar sat on lot 4 until about a week ago.
Clerk Ellsworth: the 2007 renewal included map B1, which wasn’t approved yet, so the existing map that had been used for prior years was sent to Trenton with that renewal application.
Chief DePolo gave testimony regarding the historical background of the property in question, from the Police Department’s perspective, and how Police responses have changed – in 2004 there were 4 calls; in 2005, 8 calls; in 2006, 9 calls; but in 2007, 37 calls; since the expansion, calls have quadrupled – not a typical problem spot, however, as patrons are typically a mature crowd with an increase in younger people this past year – Patio Bar was known as a locals bar prior to last year – calls were assaults, first aid, ordinance violations connected with alcohol, disorderly conduct – compared to other establishments, not a problem bar that needs constant attention – in 3rd place in terms of activity, behind Jenks and Martells.
Bob Cooper, President of Chef’s International was sworn in and testified: in 2007 the Patio Bar doubled its business over 2006 – Lobster Shanty, Wharfside and Patio Bar are viewed as one business, with 70% of revenues coming from food sales and 30% from alcohol sales – have had 11 disorderly conduct incidences, 12 borough ordinances – since 2004 the Patio Bar has had eight fights, which averages two per year – when business increased, hired professional security persons who were quick to call the Police Department to handle problems when they occurred – biggest problems were with already intoxicated people being denied entry and with those patrons who were asked to leave and refused; included bathrooms on newest expansion which should alleviate a major issue.
Councilman Loughran: some establishments purposely do not call Police in order to hide the number of incidents that take place there – asked Chief DePolo if he had any reason to believe that this has happened with the Patio Bar; Chief DePolo: not at all, in fact the Patio Bar was very proactive in seeking help from the Police – asked the Police for assistance in hiring security – acted in response to Mr. Bilotti’s complaint by having their security police the parking lot at closing time – management has always been cooperative.
Atty. Jackson asked Mr. Cooper if other factors contributed to the number of complaints that affected the Patio Bar, such as water taxi drop-offs and people using their parking lot even though they are not patrons of the restaurant; Mr. Cooper: yes…issues with patrons not being allowed to bring drinks outside the Patio Bar area or arriving a little intoxicated; it is a normal part of operations.
Councilman Cervino asked Chief DePolo about decibel rating complaints, and Mr. Cooper about the cause for doubling of business; Mr. Cooper indicated that improvements done last year were due to the repairing of failed bulkheads – were numerous levels of decking out there, but when bulkheads were replaced, took out the levels and raised everything above the flood plain, which made the area look bigger – Patio Bar has been dabbling in music over the years; Chief DePolo: one noise complaint last year, even though they have live music there almost every night – that complaint originated from Manasquan.
Councilman DiCorcia: asked Attorney Jackson if they would need DEP approval for bathrooms (did not believe so, as they are looking into an attractive trailer, which is a temporary structure).
Attorney Gertner asked Chief DePolo if he had any recommendations, from a health and safety standpoint, that he would like to see implemented (would like to see the Patio continue to close at 1AM and turn the music off at 10PM. – should also continue to provide added security and would like to see that as a stipulation – around three additional security persons seemed to work – would like them to move from the bar area to the parking lot during closing to assist the Police Department.
Councilman Loughran: concerned about patrons who park in residential areas away from the Patio Bar – after a few drinks, they may be more inclined to take risks when crossing Broadway – wouldn’t want to put an Officer there, as it is unsafe – reminiscent of the Beach House and people getting hurt on Ocean Avenue.
Mr. Cooper: have 140 parking spaces in main lot (Channel Drive), 10 spaces in the corner lot (Boston and Channel Drive), 66 spots at the corporate office lot (across the street on Broadway), can fit 11 cars at the Boston and Broadway lot, 35 spaces in the lot in front of the Wharfside, and have a lease agreement with Point Pleasant Packing (at the corner of Baltimore Avenue and Channel Drive) for 55 spaces that employees utilize in order to free up spaces for patrons – Point Packing has agreed to lease more spaces as needed – doesn’t know what the answer is about people crossing Broadway; Atty. Jackson suggested trying something like the Ocean County garage has, flashing lights when people are crossing.
Councilwoman Tooker: reaffirmed that their new plan would include more parking and asked if it could be done without CAFRA approval (unsure) – about 300 spots at maximum for 1000 people including staff – would be better for them to start working on the new parking now. (317 spots – Shanty has 444 seats, Wharfside 400, Patio 260, employees 80).
Exhibit A3, photo of what the Patio Bar previously looked like, was marked into the record. Attorney Jackson represented that the patio is the same size – the bar is configured differently.
Mayor Barrella: asked for measurement of bar in linear feet; Exhibit A4, showing final site plan with new building recently approved by Planning Board, was marked into the record. Atty. Jackson: bar itself is probably 25 feet bigger – indicated that, when he refers to the Patio Bar, he is referring to the area itself – the Zoning Officer was satisfied that it wasn’t a significant expansion.
Martin Fletcher, Comptroller and Vice President of Chef’s International, was sworn in and testified: worked there for 40 plus years and his father worked there before him – understanding was that Patio Bar was included in license – Patio Bar has been similar to what it is now for a minimum of 20 years – taking away back wall and removing awning, made it look bigger – didn’t envision success that it was last year – neighborhood concerns addressed by Mr. Cooper being there all the time and increased security – number of security people working per night varies dependent upon the number of persons patronizing outdoor establishment.
Mr. Cooper: indicated that last call for the Patio Bar is at twenty minutes to one – have had up to 5 or 6 security officers and that was sufficient on the busiest nights.
Councilwoman Tooker: indicated that she sometimes hears the music at Seymour Avenue, but it ends early enough.
Attorney Jackson: first and foremost a family restaurant and plan to keep it that way.
PUBLIC PARTICIPATION PERIOD OPENED AT 8:34 PM.
Rich Bilotti, 101 Broadway, was sworn in: location is both his residence and business – last summer, after a few incidents in July, patrolled motel parking lot and surrounding area from 10PM until 2AM-3AM – thought tonight was about adding that big building and addition to license – had issues when they went before Planning Board – about half a dozen facts that came out at this meeting were washed over at the Planning Board meeting – at that meeting, Mr. Jackson stated that there was no expansion at the Patio Bar, yet tonight he indicated that the deck area was 15-20 feet bigger – asked, if because of this, there was a way to rescind Planning Board approval for the new expansion – doesn’t object to what is being ruled on at this meeting and believes Council should grant expansion of the liquor license – here to object to Planning Board’s approval of the expansion application and the discrepancies in testimony there – asked if parking issues are being approved tonight and what would happen should Point Packing end their lease; Councilman Cervino: clarified that Mr. Bilotti had no issue with liquor license expansion to lots 4 through 6, but the physical expansion of the building; Rich Bilotti: concerned about misstatements made, but yes – been there about 17 years – was much different last summer, it’s now out of control – have several videos of public urination – witnessed two Police Officers struggle for 5 minutes with a drunken patron – incidents did improve over the summer, but want it improved a little more – parking lot could be better illuminated – suggested more security in lot and installation of meters along Channel Drive; Councilman DiCorcia: illumination could help improve the situation, as well as security.
Ben Dispoto, 311 Parkway was sworn in: Wharfside has parking for 262 cars – asked if they were over capacity (nothing documented and it comes down to a code enforcement issue); the Mayor asked if there is a capacity issue; Councilman DiCorcia: capacity has been addressed in the past, but only if there is a complaint – Fire Official will post the capacity limit and if there is a violation, someone will attend; Atty. Gertner: there is nothing documented in support of a violation of capacity – fine line between where Planning or Adjustment Board ruling ends and where liquor license review ends.
Anthony Lombardo, 309 Arnold Avenue was sworn in: asked to see drawings of bar area – asked about plans that went to Building Department and how big it is; Attorney Jackson: it was not viewed as an expansion by the inspector; Attorney Gertner: inspector not here to testify; Mr. Lombardo: does this kind of work and believes that Building Department did not do their job.
Max Gagnon, 304 Parkway was sworn in: if the Wharfside renewed their license on an annual basis, it’s their responsibility to make sure all the information is correct – asked if they’ve been getting away with this at ABC all these years – commended Clerk Ellsworth for picking up on error – asking Council to grant permission on something that wasn’t part of their original application – Council needs to do much more research before they can approve this license expansion, as a connection to something that was thought to be grand-fathered; Attorney Jackson: a couple arguments, as in a hearing you can gave alternative positions – there is a lapse argument, an estoppel argument – the surrounding businesses have grown around this and it is grand-fathered as documents don’t go back to when this establishment first started; submitted that if he understood Mr. Gagnon correctly, and the establishment was shut down, it would be a waste of an absolute jewel of the Jersey Shore; Mr. Gagnon: not his intent to have them shut the business down – want to find where the error was originally made, and fine the people for submitting an incorrect license every year.
Mayor Barrella: asked for clarification as to why it took so long for Chef’s International to come before the Council since their application was filed in 2006; Attorney Jackson: his clients had no idea that there was anything wrong with the application until “now”; Clerk Ellsworth: application came in after the renewals were issued for 2006/2007 – 2007/2008 renewals were all 12-page applications that needed to have maps attached to them – her office went over the 23 applications for 2007/2008 with fine tooth combs – map that was submitted with renewal application for the 2007//2008 season included the expansion – since the expansion and change of corporate structure had not been approved by Council, the woman who always drops off the Wharfside applications was called and she was told that the expansion map could not be sent to the ABC with the application and that the map currently on file would be sent with the renewal – once you send the 12 page renewal application to the ABC, that becomes the record for the next 8 to 10 years – the expansion application showed them going from 2 buildings to 4 buildings – at that point, no one had discovered that the Patio Bar was actually on lot 4; Councilman DiCorcia: they also send things to the ABC – we only double check what they send to the ABC if there is a question – oversight by Wharfside management, as Clerk Ellsworth pointed out to us; Mayor Barrella: clarified that what was being submitted, since 86, was incorrect, but was believed to be a correct representation – we need to tighten up our approvals; Attorney Gertner: there is no remedy here – there is administrative oversight, which is different from perjury – testimony from Borough Clerk (keeper of records) and by the Wharfside, that this is a ministerial oversight.
Joe Bilotti, 101 Broadway was sworn in: music played at Patio Bar is not soft dinner music – are attracting people in their early 20’s – believes Planning Board approved the expansion without properly noticing the public of its intended use; Attorney Gertner: that is a Planning Board issue and not before this Council; Joe Bilotti: could find only one occupancy notice for 470 people at the Wharfside restaurant – did not find occupancy notices at any of the other establishments – figured total occupancy at 1681, but there are only 329 parking spaces – drunken patrons are secondary, when compared to lack of available parking – motels are required to have 1.5 spaces per unit – asked if there were regulations for how many spaces a restaurant is required to have, in comparison to available seating (beyond scope of this hearing); Attorney Jackson: in response to question on whether parking situation was discussed during the Planning Board meeting, engineers in attendance used multiple formulas to calculate that; Mayor Barrella: parking situation not related to the issue currently being debated at this hearing and any comments made on the record at this time will not be carried over to any other hearings regarding parking; Joe Bilotti: upsetting that this establishment is making hundreds of thousands of dollars, parking all over town for free, while his motel must have 1.5 spaces per room and is being charged an additional hotel/motel tax by the town – not fair – what was once a respectable seafood restaurant has now turned into a young peoples’ night club – rock bands are attracting a rowdy, pick-up crowd – exiting drunken patrons are brawling in our streets and urinating on our lawns between 11PM and 2AM and it’s going to get worse – concerned what will happen with increased occupancy engendered by Planning Board expansion approval – worst of all, our streets are once again becoming a free parking lot, with cars pouring out into residential areas – these people are angry – it’s not right what’s going on here.
PUBLIC PARTICIPATION PERIOD WAS CLOSED AT 9:12PM.
Joe Bilotti asked and was allowed to be heard one more time: at the Parker House, and in Seaside Heights, they sit with a counter – when it reaches capacity they stop allowing people in – would like that enforced here and see bands eliminated – would solve a lot of problems – if they don’t count, will call the fire inspector.
Attorney Jackson: this is an administrative error, dating back about 30 years – everyone going there assumed what was there was approved – applicant is a partner with the community and about to celebrate its 50th year as an icon of Point Pleasant Beach, Ocean County and the Jersey Shore – part of town’s rich economic engine; in response to increased crowds last summer, management was responsible and hired security guards who worked with Police – main problem, lack of bathrooms, was addressed with Planning Board separately – a responsible corporate citizen was doing what it thought it had permission for all along, as did everyone else – restrictions aren’t necessary, as Wharfside has been working with the town voluntarily, doing anything they have been asked – while there are parking problems, that is true for all of Point Pleasant Beach – applicant has more parking than anybody – just looking to clear-up an administrative oversight.
Attorney Gertner: Governing Body should be governed by a reasonableness standard, not beyond a reasonable doubt for approval or denial, and give those reasons for the record.
Councilman DiCorcia: became active in 1979, when a liquor license extension for Jenkinsons South to Jenkinsons North was granted – that created problems as do all expansions of liquor licenses; occupancy issues, as indicated by Mr. Bilotti, need to be addressed all over town; has been opposed to liquor license extensions, but this case is very unique – suggested Governing Body approve this expansion with restrictions as to lighting and security improvements in the parking lots; Mayor Barrella: asked if Councilman DiCorcia would also ask that they continue ending live music at 10PM and closing at 1AM.
Attorney Jackson: would like to have this remain in effect on a voluntary basis only – would be the only bar with this restriction – 1 noise complaint in 50 years, doesn’t warrant restrictions.
Councilman Loughran: asked if there was an occupancy limit for the Patio Bar or if the rules differed for outside.
Attorney Gertner: advised that it is a code issue but he can ask to supplement the record.
Attorney Jackson: agreed to comply with occupancy limit set by the Building Department.
Motion by Councilman DiCorcia, to grant the liquor license expansion with stipulations discussed above and listed below, was seconded by Councilman Loughran:
1) provision of additional security, including a minimum of one security person in the parking lot
2) increased illumination in the parking lot lamps in both lots
3) 10PM cessation to music played outdoors
Clerk Ellsworth: asked for clarification on the motion as to what buildings have been approved for expansion. (Wharfside building, coolers, patio kitchen, Patio Bar all deck area, Patio food counter area, Outdoor Patio Bar, storage sheds; all property owned by the Wharfside at this location should be covered by the liquor license except for upper and lower floors of 2-story dwelling that is being rented out and the storage areas that are unfit for occupancy.)
Motion by Councilwoman Tooker, to amend the original motion to add the restriction that bathrooms need to be ready for use by Memorial Day, was seconded by Councilman DiCorcia and carried by the following roll call vote.
VOTE: Council Members Loughran, Tooker, Cervino, Dixon, DiCorcia….YEA
Mayor Barrella directed Clerk Ellsworth to call the roll on Councilman DiCorcia’s original motion which now includes Councilwoman Tooker’s amendment.
VOTE: Council Members Loughran*, Tooker**, Cervino***, Dixon****, DiCorcia….YEA
*Councilman Loughran: was an unintentional oversight – applicant has good intentions to continue to supervise the premises and alleviate some of the problems mentioned by Council and Mr. Bilotti.
**Councilwoman Tooker: don’t view as something new – something that’s been existing – issues from summer 2007 have been addressed and things have changed – conditions on the license will help.
***Councilman Cervino: up until Attorney Jackson’s closing remarks about merits of the applicant, was going to vote no – changed vote, in part, due to Mr. Jackson’s presentation of different perspective and observations of the nature of this corporate group; the jobs; and Councilman DiCorcia’s restrictions.
****Councilman Dixon: until recently, there haven’t really been any complaints about that area – been a good neighbor for fifty years – was obviously an oversight on both parties – they tried everything they could to try and make it safer – it is being monitored better – they are getting bathrooms.
Mayor Barrella: thanked both Mr. Cooper and Mr. Bilotti – both have very well-run businesses on Channel Drive and Broadway that are back to back – Point Pleasant Beach is lucky to have them both – hopes everyone remains good neighbors.
Motion was adjourned at 9:44PM.
