Town of Southeast Zoning Board of Appeals Minutes of June 18, 2018

Transcription

1 Town of Southeast Zoning Board of Appeals Minutes of June 18, 2018 Timothy Froessel, Chairman Paul Vink, Vice Chairman Roderick Cassidy Greg Wunner John McNeill Mary Alice Shallo Steve Corozine Willis Stephens, Jr., Town Attorney Victoria Desidero, Secretary Cathy Chiudina, Assistant Secretary Present Present Present Absent Present Present Present Present Absent Present Work Session: Regular Session: 1. Partners Management, LLC (Bull & Barrel) 988 Route 22, Tax Map ID Public Hearing to review an Application for an Appeal of the Building Inspector s Notice of Violation Regarding the following Sections of the Zoning Ordinance: 54-11(C); ; ; and Mr. Liguori: Good evening members of the Board, my name is Michael Liguori, I m an attorney at Hogan & Rossi here in Brewster, NY. With me is Rick Cipriani; Rick is one of the principals at Bull & Barrel. He has made application to the Board to appeal the issuance of an appearance ticket and to request an Interpretation of your Board in connection with a live band that performed at the Bull & Barrel which raised the question as to whether or not the live music performance consisted of a Change in Use of the restaurant from a restaurant to a concert venue. That s the matter before the Board. We submitted copies of the appearance tickets that were issued to Rick (Cipriani) in connection with that event with a request for an Interpretation that we set forth in a letter attached to the application. I ll just give you some details about what had led up to that particular evening, the appearance ticket issuance, and thereafter our request to the Board. The Bull & Barrel on a number of occasions since its opening has had live music as part of its operation. We believe that to be an Accessory Use to a restaurant. In the Zoning Code, restaurant is listed as a permitted use. We know it doesn t have any accessory uses listed to it but we believe it s customary and incidental to the restaurant use. For this particular event the Bull & Barrel was hosting a band called Shilelagh Law. Shilelagh Law is very popular; more popular probably than the other bands that have played at Bull & Barrel in the past. We believe that this gave the Town concern about the Use. They had written a letter to Mr. Cipriani on the 16th of February of this year to not go forward. The band played on the 24th of February but in the time period Rick (Cipriani) had engaged an architect and had numerous exchanges with the Building Department as to what could be done to facilitate the Use without violating any particular Codes; notably maintaining the appropriate egress, where were people going to stand inside the facility, how the interior was going to be used, and how people can come in and out safely. Boardmember Cassidy: If I could just stop you right there: were tickets sold for the event? Page 1 of 27

2 Mr. Liguori: Yes. Boardmember Cassidy: So, it wasn t that you were there eating dinner and the band was playing? Mr. Cipriani: Let me I ll take over this because I have intricate knowledge of working with the Town and leading up to this event. So, I m going to just kind of rewind a little bit: we ve been in business five years here in the Town of Southeast in Brewster and we ve held multiple functions just like our predecessor, Sciortino s in the same Zoning District where either it s a wedding with a band; if it s an awards ceremony dinner; even if it was just the Republican Party having a meeting in our conference room where they go to the conference room, have their meeting and they leave. No food is purchased. No beverage is purchased. So, in that form the space might be deemed conference space. We ve done pre-ticketed events in the past as have other restaurants with the same CO Title restaurants, which I ll show you guys. But again, we had New Year s Eve Roaring Twenties even where it was a pre-ticketed event. Boardmember Cassidy: What restaurant was that? Mr. Cipriani: These are all me. These are my events that I ve done in the course of the five years, just a few to give you guys an example. Valentine s dinner and comedy show, dinner and show $50 per person pre-purchased in advance. The reason why myself and other restaurants do the pre-ticketed event is because restaurant s margins are razor thin, that I need to make sure that I have enough food for my customers and I don t run out to make them happy and then on the flip side if I order to much food for an event or a dinner event or dinner even and then that dips into my margins because of the food cost, it goes to waste or doesn t get used for that event. So, it s very difficult and doing this type of pre-ticketed even for multiple types of functions really helps the business perform optimally and I will show you an example of other restaurants in the Town of Southeast that have done that as well. But leading up to this event I received a text in late January from the Fire Marshall, Jeff, who said hey do you mind if I meet you onsite, just want to go over a few things. Absolutely, come on in, we spoke. I said yeah we have this tremendous band, they ve got a big following, their coming in in late February. We re doing everything with the proper egress. We ll work with you. We have parking arrangements set up, parking attendants; everything for the safety of the occupancy. I said yes, we had to do this one as well as a pre-ticketed dinner and a show. What actually occurred that night was multiple things: we re a 200-seat restaurant meaning I have 200 seats where people can sit and eat and the Putnam County Department of Health Permit is for 200 seats. The space is large enough that I actually could apply for a 405-person seat restaurant but I choose not to do that because of the my kitchen can t handle that. It s not good for business. So even though I have a 200-seat restaurant there s applicable space where people can stand and so forth in the restaurant. Mr. Liguori: There s a difference between seatage and Health Department and maximum occupancy under the Building Code. So, for instance, you can lawfully have over 400 people in the establishment under the Building Code and that s not a violation of any particular Ordinance. That s the maximum occupancy for the premises and I just wanted to note about the ticket, a ticketing event is a method of controlling your occupancy. There s a rationale between let s say having a ticketed event and an un-ticketed event where, for instance with this particular band, if you just said hey were hosting Shilelagh Law and let s say you charge $20 as a cover, you have no idea how many people could show up at your establishment. The numbers could be far greater than the amount of people who purchase tickets. The tickets effectuate a control and that s an important aspect of this. Boardmember Cassidy: Does the ticket include food? Mr. Cipriani: The ticket required for the 8:00 people, yes to sit down and have a reservation. Page 2 of 27

3 Chairman Froessel: Is there more than one show? Mr. Cipriani: There were multiple events going on that night so what I informed the Building Inspector is: a 200-seat restaurant; we only seat 140 people in the restaurant so we took away roughly 30% of the seating in the space, not a majority of the seating. Chairman Froessel: How many did you have standing? Mr. Cipriani: How many people were standing? If the room had 424 people in it and not just the room; meaning the banquet room, the mezzanine, the main floor, and outside there were 424 occupants in the building at that time. Boardmember McNeill: And really the combination is by removing the mechanical bull Mr. Cipriani: Yes. Boardmember McNeill: You took that so there was I mean that s a pretty big space to add additional occupancy. Mr. Cipriani: The point was: we didn t increase the occupancy Boardmember McNeill: No, no not increase it but I mean you Mr. Cipriani: The purpose for that is we want better flow to the bar because that s our revenue source for the night. Boardmember McNeill: Sure, right, right, sure. Mr. Cipriani: So, you can see Chairman Froessel: I just want to interrupt you for a second. I just want to drill this down a little bit. What was the night of the show that you guys ticketed for? Mr. Liguori: The 24th. Mr. Cipriani: February 24th, it was a Saturday. Chairman Froessel: How many shows did you have on February 24th? Mr. Liguori: Well, you should list the events because there were three separate events going on. Mr. Cipriani: Yeah, 8 pm was a fundraiser for the dance school by the local Irish Step Dance Team, Kelly Oster; 8:30 pm was a fundraiser for the Irish Fraternal Order of Police Steven Driscoll Memorial Pipe Band; 9:00 pm the Kelley Oster girls went back on; and 9:30pm Order of Police Steven Driscoll Memorial Pipe Band went on; at 10:00 pm the band went on for an hour and a half show. Chairman Froessel: If I bought a ticket for this event, I could attend all of those? I could show up at 8:30pm? Mr. Cipriani: Yes, you could show up at 6:00 pm if you wanted to. Boardmember Cassidy: Could I buy tickets for the event without purchasing food with the ticket? Were there tickets for sale where you could go and see the entertainment without buying food or alcohol? Mr. Cipriani: You had to purchase a ticket in advance so I had control of my occupancy of 400 people. Boardmember Cassidy: OK good, let s drill down. Can I buy a ticket, I don t want to eat I just want to see the show; can I buy a ticket that doesn t include food? Mr. Cipriani: I can't control what you do in my establishment. Mr. Liguori: Yes or no, that s all. Boardmember Cassidy: Could I go to the venue to watch the show without buying food. Mr. Cipriani: You could. Boardmember Cassidy: OK so the ticket wasn t for food. Mr. Cipriani: There was no ticket, it was just a name on a list; it really wasn t a ticket. Boardmember Cassidy: OK so it wasn t like the other events where it s like dinner and a show. I could just see the show? Page 3 of 27

4 Mr. Cipriani: No, you can other events you don t have to purchase food either. We have other events where it s $20 for food included or $10 for no food. So, a lot of things were going on that evening. We worked with the Fire Marshall up to the event and through the event working with the Building Inspector, bringing in my architect to give him satisfied drawings that the Building Inspector viewed and looked at that had proper egress where you can kind of see from all different spots where the exits are here, here, and out the back. These are all in compliance with A2 Code of the Building Code for 2010 when the building was erected, which has over roughly about 500 occupancy. So, the key was that we worked under that occupancy and that was the critical factor of why we did it the way we did because as Michael expressed. So, we have random people come in for dinner, they sit down for dinner, they eat, and then they go outside to the beer garden; they re done. I sit somebody else at the table without proper wrist banding or that even flow of you know what, we opened at 6:00 pm or we stop the general public from coming in before 6:00 pm, we had that 424-person count because our number priority was with the Fire Marshall and the Occupancy Code. The Fire Marshall came the night before the event, the day of the event at 6:00 pm before the event and showed up at the event at 10:30 pm at night and witnessed everything in a safe manner including a letter that I will read, this was an from Jeff (Bergstrom) to Michael (Levine) the day after. On Saturday night February 24th the Bull & Barrel had a sold-out event with a large-scale concert. On Friday evening I followed up with a meeting with Rick (Cipriani) and Wendy (Wulkon) and reviewed the evacuation plan, the safety plan, the fire lanes for emergency vehicles, they had a fire protection vendor who serviced the lights that day as well. Saturday late afternoon I stopped by to see the floor layout to make sure the entrance were clear and the tables and the bull was properly stored and the guest lists were printed out. Rick advised that he had 30 call ins to cancel. Saturday evening both Joe (Hernandez) and I visited the show began at the front door and the host had a 424 head count for the event. Rick said he was surprised that a lot had cancelled, over 50. The event was good. Seeing no issues by Joe (Hernandez) and myself we got to walk around the hall, no crowding issues and checked the exits which were all clear. We walked the building, seeing no problems. All in attendance got a wristband to keep track. Parking was not an issue and they could park with no concerns. The balcony was fine, not overcrowded, had 33 on the balcony. We didn t see any overcrowding issues; there was plenty of walking room inside the event. So, I felt it was a success that we worked with the Town and if it was deemed unsafe the Fire Marshall in his right could have closed us down or cancelled the event or had us pull out people in the event. Boardmember Corozine: Sorry, quick question just to verify the math on that: the total occupancy that you can legally have in that building standing and sitting together is what? Mr. Cipriani: Roughly 500. Boardmember Corozine: Roughly 500 and you re max that night was what? Mr. Cipriani: We had 424 including staff and consumers. Boardmember Corozine: OK. Mr. Liguori: I think one of the things that you know that the tough legal question I think is, is when do we go from black and white to something different? Is it the selling of tickets? You know is that the difference? You know is it the removal of table and chairs? So, you know when you take a step back and you look at how you manage something like this you could not sell tickets. I mean if we had not sold tickets it s entirely possible that we would not have been issued an appearance. It may not have gotten on the radar of the Town as far as the particular event. So, you know if it s that that changes the Use then when you take a step back and look at it you say well is it better just to charge a door fee or are we taking a look at a bigger issue. Is the bigger issue the fact that there s live music? We re hoping we re not looking at the Page 4 of 27

5 bigger issue because we think live music is something that is appropriate. It s customary with the restaurant use. We think historically that s consistent with what s gone on here in the Town or what s been permitted to go on, both here and at other restaurants. So those are the questions that we have and that s the basis for how we geared the request to the Zoning Board of Appeals which is, you know, exactly where is the line, it s not precisely in the Zoning Code. Mr. Cipriani: I ll share some information as after I received these violations I did some research amongst similar restaurants in the Town that I ll share this information with you and I think it will open your eyes a little bit. Tilly s Table, we all know Tilly s Table is a restaurant on Tilly s Farm. It is run by a company called Homestyle Caterers. It is on Putnam County property so it is not governed by the Town of Southeast but hence it is a restaurant. We can agree? Town Attorney Willis Stephens: It s not governed by the Town of Southeast Zoning Code. Mr. Cipriani: True, OK. So, Tilly s Table, as the restaurant is called, does a Valentine s dinner special which is a pre-purchased, ticketed event. Boardmember Cassidy: Is food included in that purchase? Mr. Cipriani: It doesn t say. Interactive Murder Mystery Dinner at Tilly s Table, purchase tickets, but that s also music, dancing, entertainment. Boardmember McNeill: And dinner. Mr. Cipriani: And dinner. Tilly s Foster did a beer festival. Purchased a ticket for no food. Just so happens that this beer festival that they hosted had the same band Shilelagh Law. Here s a picture of a stage that they personally built for the band to play outside at the restaurant. They also put up tents to serve beer which I do not believe food was included. Clocktower Grill; Rich is a great professional chef. On his website today, live music every Friday night. This also now raises the question of what s incidental to a restaurant. Is he really just brokering a business here where on June 30th he s kicking off Independence Weekend with a prepared dinner at the Clocktower Farm in Sherman, CT but he s selling tickets as Clocktower Grill in Southeast for an event somewhere else. Is that indicative or inclusive to what a restaurant can and cannot do? I m going to move on to one that I think really will hit home here is Las Mananitas. We re all familiar with them, right? Here s a copy of their Certificate of Compliance issued in 2014, Operational Permit Las Mananitas, restaurant. The difference on my Certificate of Occupancy says restaurant and brew pub. The Town does not supply a definition of what a brew pub can or cannot do. I happen to just do some research to understand and say well you know restaurant and brew pub are two separate entities that I m allowed to do within my facility per the CO. I didn t go so far except to go over to the Town of Kent. Kent in their Zoning definitions has something called Bar or Tavern. I just want to read this to you so you can see some comparison: An established licensed under the Laws of the New York State primarily for the sale or consumption of on premise of alcohol or non-alcoholic beverage and which may provide live entertainment. Food may also be served but it is secondary and incidental to the business. A grill, nightclub, cabaret, saloon, pub, public house, beer garden, or similar establishment shall be considered to be a bar or tavern. So, Las Mananitas is issued a restaurant as a permit. We talked about how, you know I personally think it s my civil liberty and right if I want that mechanical bull there or not, that I can choose to pull it out any given day or night if I want to have it there or not. It s obviously an incidental use to grow my business and marketing it has helped us. Las Mananitas has an outside space. It s vacant here. I think during normal business hours, during the day, they don t put anything within that space. Occasionally they have catered events where they put outside tables with dining that are mobile. They also so happen to leave that space open for live entertainment, DJ, recorded music, portable dance floor, smoke machine, laser light show, and port-a-johns. Page 5 of 27

6 This is a portable dance floor that was installed for the night of Cinco de Mayo this year. He s Luis the port-a-johns outside for the increased occupancy. Also, here s a picture of a tent that he used to cover his patio space. What I have here is a Notice of Violation from the Building Inspector to Las Mananitas, who is operating as a restaurant, who has live music, DJ, portable dance floor, smoke machine, port-a-johns, and laser light show. The Building Inspector has observed that you ve done work at 1250 Route 22, tent. This work is in violation of the Town Code. So, the Building Inspector issued Las Mananitas a Notice of Violation for the tent that they put up for that event, but nothing about a dance floor, music, entertainment, DJ, or anything along those lines. So that s when I go to my Certificate of Occupancy that says restaurant and brew pub and I go back to the Town doesn t really have a definition of brew pub and I ve been operating the same way for the five years. The other concern is my Operational Permit, which I do not have a 2018 Operational Permit since February when the Town cashed my check. It just hasn t been issued to me, I don t know why. My 2017 Operational Permit is for 315 people; my 2015 Operational Permit is for 350 people. The number is different on forms for different years and nothing has changed. I don t know who is keeping these records or where they re getting them from because you are supposed to use the A2 Building Fire Code with signed, stamped drawings that have been provided to the Town. One last bit, my liquor license from New York State how do they refer to a restaurant; I have a restaurant/brewer s license to perform as a restaurant and a brewery. It is permitted and it says it on here, let me see: DJ, live recorded music, dancing, yard garden area so New York State views what I have is the ability to perform live music and then again, I mentioned the letter, the that the Fire Marshall inspected us that night and said we were in compliance, it had nothing that we were operating well within our means. Mr. Liguori: Just a recap from the legal end: so, we have a Boardmember Cassidy: Can I see the liquor license? Mr. Liguori: Sure. So, we have an Appearance Ticket and a court date with a potential maximum fine of $250 for the Zoning Code. We could plead guilty and just be done and walk away but it doesn t answer the question as to where do you go from here? Do you discontinue the Use as far as the use of ticketing, is that the precise issue? Is it the fact that tickets were sold or is it the live music itself? That s really what we re trying to get to the bottom of and that s the purpose for the request for the Interpretation to the Zoning Board. There are no bright lines in the Zoning Code as it relates to this particular Use so we felt it was appropriate to come to the Board. I mean we could try to fight it in court and file a Motion to Dismiss based on, I think, a number of factors but at the end of the day it doesn t really solve what the problem is. Boardmember Vink: Logistically you run into some issues when you ve got something the size of Shilelagh Law using a restaurant as really in essence using it as a concert venue. I really don t think there s any question about that. Whether you are taking names at the door or just limiting the number of people that can come in. Mr. Cipriani: Mr. Vink, do you mind if I ask you a question? Boardmember Vink: Sure. Mr. Cipriani: When you go to a concert hall are you able to have a sit-down dinner? Boardmember Vink: Often. Mr. Cipriani: Where would that I m not Boardmember Vink: Daryl s Place has sit-down dinner and any number of places in Danbury. Mr. Cipriani: Are they a restaurant or a concert venue? Mr. Liguori: It s a cabaret. Boardmember Vink: OK, it s a cabaret. Page 6 of 27

7 Mr. Liguori: It s a different Use. Boardmember Vink: Well no, again, you don t have a cabaret license here do you? Mr. Liguori: Well that s a liquor license thing. Boardmember Vink: No, not necessarily; in White Plains you have a Cabaret License that you get from the City and it has nothing to do with your liquor license. So, I m saying that the Use here was clearly for a concert that you sold beer at or alcohol, whatever liquor you sold. That s where you were making your money. Mr. Liguori: But is that just because of the band or is it Boardmember Vink: No, it s because of the logistics of how it was set up. I think now let s go by contrast to what happens every Friday at Clocktower. Sometimes they have a full band out in the courtyard. There s no admission fee, there s nothing else; you re not required to purchase anything, you re not required to eat dinner. Sometimes they have the bands inside depending on the weather. You re not required to buy a beer; you can walk in and there s no coverage charge if you walk in and go watch the band. Boardmember McNeill: Bull & Barrel does the same thing every Friday or Saturday night you can go in and see a very small venue. Boardmember Vink: That I think is the distinction; between that setup and what you do on a regular night Boardmember McNeill: This just happened to be a more popular band. Mr. Liguori: Exactly. Boardmember Vink: But in my mind when you re talking about a band that size, you re now talking about scheduling a concert. Boardmember McNeill: Where do you draw that line? Mr. Cipriani: Wait, wait, typical concerts Boardmember Vink: When the restaurant is incidental to the concert. Mr. Cipriani: Typical concerts, when I think of a concert in Giant s Stadium or somewhere, you get a ticket, you buy them in advance; what we did is just take pre-purchased a name at the door. You use the word ticket but no one ever from me or my company ever got a ticket that said the date and the time of the event. It was basically a pre-reserved reservation to say buy it in advance because we have an occupancy limit so we need you know we turned away over 100 people. Boardmember Vink: Was not the point of this to get people in there to listen to the music and buy a beer? This was not incidental to a restaurant: this Use. Your regular Friday night perhaps is and I think in most restaurants and many, many restaurants do exactly that; they have a small band two piece, even a full band, it really doesn t matter but it s really incidental to the restaurant use and that concert in particular was not incidental to the restaurant use. It was the purpose of the evening and it s a difference. It s a distinction Boardmember McNeill: What about Mahopac Golf Course? They had the same band there two weeks ago. Boardmember Vink: I don t care about Mahopac; it s not in Southeast. Boardmember McNeill: You don t have to, I m just saying, well neither is Daryl s House. Mr. Cipriani: This event that I put on was to churn up business. I had a 100 I ve never had 140 reservations sit in my restaurant on a Saturday night at the same time. That s what this thing brought me. It brought me the food sales and the incidental food and beverage that goes with it. So, I can print out my food tickets for the night and show you throughout the whole night everyone ordering food, either at the bar or at tables because we had the kitchen open the whole night. I would tend to agree with you if I shut the kitchen and only served beer and had a band on the stage but that s not how I operate. It was a complete sit-down dinner with Page 7 of 27

8 tickets that do I do 140 seats on every Saturday night? No, this brought me incremental business because of the incidental use to what I have, in my opinion. Mr. Liguori: And I agree with Rick (Cipriani) in that if we had limited the restaurant use I think we could argue about a change in Use, that we were no longer operating as a restaurant and you know when you look at the Code you see that food and beverage are tied together. You can t just have a bar here in the Town of Southeast, you can only have a restaurant. So, in this case if Rick (Cipriani) took away 30% of the tables and then shut the kitchen down I think well, we d be pleading guilty in court as opposed to appealing to the Board of Appeals and trying to seek some form of Interpretation because the restaurant continued to operate as a restaurant for the entire evening. Boardmember Cassidy: For me the distinction is you re selling tickets to the show. If you sold tickets to the show and dinner was included, to me there s a big difference. So, you re not charging for the band at all and you re just charging for food and alcohol, there s a big difference. I think once you start selling tickets, whether it s a paper ticket or not, once you sell admission for the band it no longer becomes incidental to the restaurant. Mr. Liguori: Would you hold the same argument if he didn t if he just had a door charge? Boardmember Cassidy: If he had a cover charge for the band? I don t know that I would. Mr. Liguori: Here s why I ask because we were batting this around in my office today in preparation to come to the Board and looking at the differences between ticketing and coverage charges and, in this particular instance, the big issue is you don t have control when you only have a cover charge and I think it s precisely related to the band, right? If this wasn t Shilelagh Law and it was just Joe Blow and you know his four-piece band, I don t think we d be standing here. I think we d be you know that happens every Friday night and continues to happen without incident. Boardmember McNeill: And you had two other forms of entertainment prior to the band? Mr. Liguori: Right, right, there were two other things going on. Boardmember McNeill: They were eating dinner, they were watching the show so it wasn t just Shilelagh Law that we re talking about. There were those from the Irish dancing school there too who also brought people into your restaurant who sat down, had their dinner, had their drink. Boardmember McNeill: They paid whatever the people who wanted to see Shilelagh Law paid also, correct? Mr. Cipriani: Correct. Boardmember McNeill: Basically, if you wanted admission into that place and you wanted to just see the FOP Band, you paid the same thing to see Shilelagh Law. Mr. Liguori: And you could have left when they were done. Boardmember McNeill: You could have left when Shilelagh Law came on you could have walked out the door. Mr. Cipriani: Correct. Mr. Liguori: The point I was making about the difference between the cover charge and the ticketing is the control aspect and we think that Boardmember Cassidy: You can t do a head count at the door and stop when you get to some magic number? Mr. Liguori: Well you can but Boardmember Corozine: You re responsible for the control of the restaurant regardless of the event. Mr. Liguori: Well yes, but you have some semblance of control as to who is coming to your restaurant. Page 8 of 27

9 Boardmember Corozine: Logistically it s easy; you have people coming in one door. Mr. Liguori: And to us or at least from the legal perspective if we re looking at a rational application of the Zoning Code I think we re going to err on the side of hey look do you want to prohibit a control method or not because if you say to me ticketing is the problem, OK fine we don t ticket anything but we have huge problems every Friday night because we continue to have very popular bands who show up and people come in, they buy food, they operate the restaurant but let s say 750 people came up as opposed to the 400 or the 100 that Rick (Cipriani) turned away. Mr. Cipriani: That would bring up additional parking problems because if 700 showed up and there s parking for 400, I can't control that because I don t know who is coming. Boardmember Cassidy: But you had an extra 100 people show up. Mr. Cipriani: No. Boardmember Cassidy: I thought you said you had 100 people show up that you had to turn away. Mr. Cipriani: No, the number would have increased, we pre-sold 400 tickets and 50 did not show up for the night so we were light on the number. It s very similar to like on a Friday or Saturday night: people come in for dinner, they stay with their family. Guess what happens? Or they come in before 9:00 when security comes, what do they do; 20-year-olds? They go hide in the bathroom, they go outside, they wait until 10:00, they pop back up with their friends and now I have someone under 20 in the bar but we blanket the place and we have to rewristband everyone which takes away time and strategy of really how to get that accurate number so myself and my partner deemed the best way to control the crowd for this popular band was to do a pre-cover charge admission that would get you in for the night and that s how we knew we were dead solid on that number because I worked with the Fire Marshall for five times in a two month period because I wanted to make sure I said if I m over 501 or whatever the hell it was, shut me down because I just I deserve it. Boardmember Cassidy: What was the admission price? Mr. Cipriani: $10 or $20, I m not sure, I m not sure. Ummm $20 pre-sale online. Mr. Stephens: Can I ask a question? When you were marketing this event, was there an Occupancy Certificate that limited the number of people you could have in your restaurant. Mr. Cipriani: I was going off of my as-built drawings Mr. Stephens: That s not the question I asked you; was there an Occupancy Certificate or an Operational Certificate Mr. Cipriani: Not for 2018 was not issued yet even though the Town Mr. Stephens: When you started marketing this was when? Mr. Cipriani: I m sorry, when we marketed the event? Probably in October of the prior year. Mr. Stephens: And what was your Occupational? Mr. Cipriani: I don t know. I have two different forms Operational Permit? Mr. Stephens: Operational Permit. Mr. Cipriani: I ve two different numbers for two different years from the Town. Mr. Stephens: What s the most recent one? Mr. Cipriani: 2017 said 315 or 325, I think, one of those two. Mr. Stephens: So, at the time you were marketing 400 tickets you were planning on selling more tickets than you had allowed occupancy? Mr. Cipriani: My stamped architectural drawings Mr. Stephens: I m talking about the Certificate that was issued, the Operational Certificate that limits the number of people in the place. It was 315, is that correct? When you started marketing this? Page 9 of 27

10 Mr. Cipriani: Could be but let me ask you a question Mr. Stephens: It s a yes or no. Mr. Cipriani: Isn t Occupancy not part of the Zoning Board s decision? It s not part of their guidelines. It s Code 56 not 138 of the Zoning Code, it s a building function. Mr. Stephens: You re appealing a Determination of the Building Inspector which included, I believe, and the Building Inspector is here so maybe we should hear from him, as to what it was that he found objectionable in what you re proposing. Mr. Liguori: I think that one of the distinctions is whether or not that s solely a New York State Building Code issue or if that s a Town of Southeast Town Code because we ve appealed the Town of Southeast s Code provisions to the Board as being the only Board having jurisdiction over that. We re not appealing the so there s a State Building Code question. Mr. Stephens: You re appealing the Determination of the Building Inspector. Mr. Liguori: We are, that s right on the Use. Mr. Stephens: Well, there are a number of aspects of that Determination. Mr. Liguori: We know that. That s right. Mr. Stephens: Oh, so you re picking and choosing which one works best for you? Is that Mr. Liguori: No, no I think we don t I don t think the Zoning Board has the authority over the New York State Building Code so why would we appeal to them? We d have to appeal to the Division of Codes if we had an issue with that. Mr. Stephens: Are you planning on doing that? Mr. Liguori: I don t know. We haven t decided what we wanted to do. Mr. Stephens: Was an Occupational or an Operational Certificate issued by the Town of Southeast? Mr. Liguori: I think they Mr. Cipriani: They failed to issue the 2018 Mr. Stephens: For 2017? Mr. Liguori: There is one for 17. Mr. Stephens: OK and that is when you started marketing this event? Mr. Cipriani: But no tickets were sold. We can market an event we didn t have the online portal to do it. So, in 2018 Mr. Stephens: Were you advertising 400 tickets were available? Mr. Cipriani: No, no, it s a hidden number that just we knew. I have, I don t know if it s with me here In February or late January, I ed Bonnie (Colombo) at the Town and said the 2018 Operational Permit is not on your website and it is still not on the website, can you please send me the application? She forwarded me the application, I filled out my check, they cashed my check in early February, and I have not been issued my 2018 Operational Permit where I had provided to the Building Inspector stamped drawings. Now, in addition to that, because he felt that we were limited by our Town Health Department 200 seat occupancy count, a letter from the Department of Health stating what I mentioned earlier; a 405-seat restaurant with additional space limited by the Fire Code. Because there are no septic issues, I can have up to 405 seats plus any additional space based on the Fire Code. That information has been in Mike s (Levine) possession for about two to three weeks now and I am still waiting for the issuance of Mr. Stephens: How long? Mr. Cipriani: About three weeks. Mr. Liguori: Months. Mr. Cipriani: The new information from the Health Department has been there two to three weeks and I just have not received my 2018 Operational Permit. Page 10 of 27

11 Mr. Stephens: OK. Mr. Liguori: But to the point, I would think if there s a question about whether or not he advertised 400 tickets available, I don t know if that was the case. Mr. Cipriani: No, the goal was it was a hidden number that when we got to 300 we were going to stop and then sell the rest at the door but due to the success and the response from the consumers we said you know what, this is the best way to sell it out and we ll call it at 400. When our occupancy was even higher we said we re done at 400, we re not trying to sell any more tickets because 400 is what we feel comfortable controlling in that environment. Boardmember Vink: Before we go any further, I neglected to swear you in. Could you raise your right hand for me please? Do you swear the testimony that you are about to give and have given so far in this meeting has been the truth to the best of your knowledge? Michael Liguori, Attorney at Hogan & Rossi, and Bull & Barrel Owner Rick Cipriani were sworn in and the mailings were verified to be in order. Chairman Froessel: I think I d like to hear from the Building Inspector. Mike (Levine), could you just come up and give us a rundown of essentially the nature of the violation that was given and how you interpret the Code? Building Inspector Michael Levine: Sure. Michael Levine was sworn in. Mr. Levine: I guess the reason I m here is that the Building Inspector has the authority and responsibility of enforcing the Zoning Code in our Town. When this event that was held February 24th first came to my attention. The first thing I did was verify it. I went to, I think, the Facebook site for the restaurant, saw the advertisement for Shilelagh Law, and the cost per ticket. Then I went to the Zoning Code and I looked to see what the Uses that were permitted for the NB Zone were. You ve probably all looked at the Zoning Table, in the NB Zone you re permitted to have a restaurant, permitted to have personal services, professional services, and so on. Looked at the definition of restaurant; basically, restaurants in our Town are by definition they serve food to people seated at tables or counters, that s the way the definition reads. Took into consideration the layout of the restaurant as I knew it and the capacity of the restaurant that was in our file. I tried to get some idea or handle around how this restaurant would deal with 400 or 500 people as opposed to a 200 or 250 seat restaurant, which is what it s permitted for and what I came up with was the great potential for overcrowding. So, we re talking about a couple different issues here: one is kind of a Building Inspector hat and the State Code and the Building Code and the other side is Zoning. From a Building Inspector s side, one of the things that we did do was we reached out, we tried to ascertain whether or not the event, if it had 500 people or 450 people there, could safely function without the risk of someone getting hurt and there being a real issue at hand. I did send the Fire Marshall there to discuss things with the operator. Zoning Department or Zoning Code, I had to look at what s our responsibility as a Town, what s our responsibility as a Building Department to enforce that provision of Code. I came to the conclusion that they were not operating as a restaurant. They were taking the restaurant space, this space where a lot of the tables are; to accommodate the band. They were emptying out this upper section of tables, they were taking out the bull, which was there as an amusement to meet the theme requirements for the restaurant, and they were emptying this whole area out. By doing that, instead of 15 sq. ft. per person it goes down to 5 sq. ft. per person for people to stand in a place to watch the band. By doing that, they were able to bump up their occupancy greatly. Now again, Building Code, could that be done? Yes. Zoning Code, is it a change of Use? The way I looked it was yes. Based on that Determination Page 11 of 27

12 I put together a draft letter. I sent it up to Town Counsel to review. He said my Determination was reasonable. I sent out my first letter to Mr. Cipriani, also copied the building owner, which is Partners Management. Bull & Barrel goes by Stateline Enterprises and Bull & Barrel Brew Pub. So, I basically told them that I did not feel that the event was permitted in the NB Zone. I said the CO is for a restaurant and brew pub and the entertainment must be considered incidental. The event planned is a live concert with tickets sold for admission. Based on the information received from the Fire Inspector, 400 tickets had been sold for the event. Clearly, this Use is not incidental to the restaurant and brew pub. I told them what the permitted occupancy was for that space. I asked that the event be cancelled. Following receipt of that letter, Mr. Cipriani came to my office, discussed many things with me much of what's been shared with you this evening. I gave it careful consideration. I spent a lot of time on it and after consulting with the Town Planner, again with Mr. Stephens, I put together another letter on February 16th where I included the definition of a restaurant and basically reiterated my position that this was a change in Use and it was not permitted in the NB Zone. I received another letter from Mr. Cipriani. Again, I wrote a final letter the day before the event. I basically made it clear that the Building Department was holding its position that this was not an approved use in the Zone. Finally, the day the event came I did send out the Assistant Building Inspector and the Fire Marshall as a means of protecting the people that visited the venue that night, OK? They were there with simple instructions: make sure that people can get to the points of egress, make sure that we have a count, make sure if the count is over 500 people that we stop the show. We notified the Putnam County Sherriff's Office of our strategy and they were on call in case that situation arose. Fortunately, we did not stop the event; I think we would have been in our rights to have done so based on the change of Use but we did make it clear that if this was to go on we were going to follow up with formal enforcement and that's what we did, we issued multiple tickets to multiple parties. There are two partners that I'm aware of in Stateline so both Rick (Cipriani) and Wendy Wulkon, who are the two partners, received four violations. Stateline Enterprises received the same four violations and Partners Management, who is the building owner, received the same four violations. All of those violations were again Zoning violations. They had to do with the fact that they changed the Use, they didn't have a CO for that Use and that's where we're at. We've had a subsequent meeting with Mr. Cipriani and his legal representation regarding the charges. We gave him some recommendations; Town Counsel and I gave him recommendations as to how he might move forward. The letters that I gave him did indicate that he had the right to Appeal my Determination to this Board as the Code spells out. But getting back to the matter of the Use: when I received the Building Permit application from Mr. Cipriani in 2013 it was for a restaurant. There's a brew pub there, yes, they make their beer; that's the brew pub element. They had to get special approvals from the Health Department for that production of beer on premise. We issued a Certificate of Occupancy for a restaurant and brew pub. We issued subsequent Tenant COs and Operational Permits that specified occupancy for each assembly area. Restaurant versus concert venue: I still don't see how you can empty out an area of your restaurant, fill it with people standing room only, and still call that a restaurant. Mr. Liguori: Las Mananitas has I think, what did you count? Maybe 1000 people on Cinco de Mayo and the tables were removed. I mean it goes on here in Town; it's not out of the ordinary. Mr. Cipriani: I'd like to point I don't know if DeCiccio's in Brewster: supermarket or bar or both? Two Zoning Uses in one Zone? I don't know the answer to that but I will say in the NB1 Zone, besides restaurant, we are allowed what's called Small Scale Recreation and Small-Scale Recreation I assume is where my mechanical bull falls under, not under restaurant. The Page 12 of 27

13 definition of Small Scale Recreation says "and other places of public or private entertainment." Can my event that night be deemed private entertainment because it was for a private crowd as a pre-purchased event? If DeCiccio's can operate under two forms of a restaurant and a bar then why can't we operate as a restaurant and small-scale entertainment? It's another way to look at it. Mr. Levine: As far as the use of the bull, that would be similar to having a pinball machine in your venue, OK? It's considered an amusement by the State of New York. Small Scale Recreation is a Zoning designation. If Mr. Cipriani wanted Small Scale Recreation as part of his approval he would have had to make that application when he applied for the Use and his Certificate of Occupancy. He would have gone to the Planning Board for review and either gotten an approval or not but he can't just change his Use whenever it's convenient for him. Chairman Froessel: Do you have a copy of the advertisement for that event there? Mr. Cipriani: I believe I I have to see if I have one. I also just want to make a quick point and Michael (Levine) touched on it but he didn't touch on the real details of why I'm so adamantly having to defend myself here and it goes under two reasons. One, and foremost, is that the Town of Southeast, under the advisory of Mr. Will Stephens, had the Fire Marshall call the State Liquor Authority and report us for potential Zoning violations. If we are found with Zoning violations they can revoke our liquor license and, hence, put us out of business. That's one reason why I'm fighting for my business here. Number two, in my lease, if I have any Town violations they can terminate my lease. Chairman Froessel: That's in any commercial lease. Mr. Cipriani: Sure, but they've already tried terminating me twice with two Supreme Court visits so they would love to terminate my lease right now because of something so silly like this. So that is one of the reasons why I'm also here fighting for this because I also believe it's right. Boardmember Vink: Understand though that you were warned about that before you actually did the event so you were warned that your event was in violation by the Building Inspector Mr. Cipriani: 5:30 on Friday night before the event. Mr. Levine: Well, the first letter was on February 1st. Chairman Froessel: By the way, let me just say: we don't have a copy in the application packet; it doesn't have your February 1 letter. Mr. Levine: Everything that I've talked about today I have a copy for everyone. Chairman Froessel: That would be great. Mr. Cipriani: If you want to take this and pass it down, that's the poster that was used for the event. (Multiple voices inaudible) Mr. Stephens: You may want to mark this into the record somehow by referring to the document. Chairman Froessel: I will make a record right now of what we have Mr. Levine: Again, going back to the determination I made: if this type of event is permitted on an ongoing basis, the nature of the Use for that facility is completely different than what's approved and what I perceive as permitted in the NB Zone. Mr. Liguori: Therein lies those words are really critical, which is 'what I perceive to be permitted.' That's why we're here, that's why we have a Zoning Board of Appeals to analyze that. So, I think we have a legitimate question before the Zoning Board, which is 'hey, when does that Use change?' We have a right to appeal a Determination of the Building Inspector. That's our right. Michael (Levine) looks at the Code if something is unclear and makes a determination and then we have the ability to bring it to this Board to see if they agree or Page 13 of 27

14 disagree. I don't think it's more complicated than that, which is that we have a Code that doesn't even permit live music. So, if we really wanted to get down to brass tacks nobody can have live music in the Town of Southeast. It's not in the Zoning Code. He can't cater a party that you know there are other things that he would not be able to do. Let's say the Republican Committee calls up and says 'hey, we want to have a meeting at the restaurant but we're not going to buy any food, can we meet?' Yeah, sure. It's this amount of money. You can't do that: that's not what a restaurant is. There are a lot of functions that restaurants have that are not in black and white. Chairman Froessel: I don't think the issue necessarily is just live music. I think it's more than that. Mr. Liguori: No, no, hold on. And that's why we geared our interpretation the way that we did. We wrote it to gear it to what had gone on so that we knew that what specifically happened that night is what we're challenging, OK? That's the question that we put before the Board. Boardmember Vink: But I think you do need to look at what everyone's perception of what a restaurant is and what a restaurant does. A restaurant often holds meetings, a restaurant holds private parties, and restaurants around here have live music. Mr. Liguori: Yes. Boardmember Vink: In their function as a restaurant they do all those things, that's part of the business plan. I think the distinction here is, in fact, this specific event and how it came about and how the setup of the interior was changed to accommodate the band and the number of people that were being brought in to the event. It's an event. It's not a regular restaurant night, it's an event. This was an event. Mr. Liguori: That's where we disagree in the sense that it could be any band. Boardmember Vink: That's right, it could be. Mr. Liguori: But you're saying that it's because this band we have a Zoning problem. Boardmember Vink: Because Chairman Froessel: I don't think the band has anything to do with it. Boardmember Vink: Because of the way you changed the makeup of the restaurant physically in order to accommodate the band. Mr. Liguori: So, is it one seat that gets removed? Is it five seats? I mean these are the questions. Boardmember Vink: Let's look at it the other way. All those (multiple people talking inaudible) Mr. Liguori: I would not argue with you at all if we took all the seats out. How could it be a restaurant? You can't sit down and eat. Boardmember Vink: You could always eat at the bar. Mr. Liguori: Not if you don't have. well you could stand at the bar and eat but I think we could all agree that that's not a restaurant use. Boardmember Cassidy: So, then removing 51% of the tables then is a problem because now you're less of a restaurant than anything else. Mr. Liguori: If that's part of the criteria then OK, you know. Boardmember Cassidy: I'm still stuck on the selling tickets. Mr. Cipriani: We removed 30% of the seats and reduced the seating from 200 to 140. What he is saying is that yes, we removed the bull and we removed here but as we removed these we added tables here as well. So, tables that were removed we also added here just because we wanted to free the flow to the bar. With this current layout, which is my as-built in my occupancy, regardless of when I removed tables and the bull, and Michael (Levine) asked me to Page 14 of 27