[HISTORY: Adopted by the Board of Selectmen of the Town of Fairhaven effective 1-1-1995. Amendments noted where applicable.]
Consumption of alcoholic beverages in public — See Ch. 83.
The sale and delivery of alcohol and alcoholic beverages in the Town of Fairhaven by holders of licenses issued pursuant to MGL c. 138 is subject to the provisions of Massachusetts General Laws, the rules and regulations of the Alcoholic Beverages Control Commission (or any succeeding authority) and these rules and regulations, all as may be amended from time to time. It is the responsibility of each holder of a license issued under MGL c. 138 to be aware of the provisions of said chapter and all other applicable law. The rules and regulations contained herein are issued in addition to, and not in lieu of, the provisions of said Chapter 138 and other applicable law. As such, all provisions of applicable law and regulation shall apply. In the event the provisions of these regulations contradict the express provisions of any applicable general or special statute, the terms of the statute shall prevail.
Any captions or headings provided herein are done so solely for convenience and are not of any legal effect.
The following definitions, as appearing in MGL c. 138, § 1, along with any definition contained in said section not expressly set forth below, are hereby adopted. Notwithstanding any provision contained herein these rules and regulations to the contrary, any amendment or modification to the definitions appearing in said MGL c. 138, § 1, shall be deemed an automatic amendment or modification to the following definitions. Reference should be made to the General Laws for chapters or sections cited in the definitions.
The words listed herein shall, unless the context of these regulations or the General Laws or the rules of the Alcoholic Beverages Control Commission otherwise require, have the meanings as given herein this § 204-2.
- All alcohol other than denatured alcohol or alcohol described in MGL c. 94, § 303A.
- ALCOHOLIC BEVERAGES
- Any liquid intended for human consumption as a beverage and containing one-half of one percent (1/2 of 1%) or more of alcohol by volume at 60° F.
- A corporation chartered for any purpose described in MGL c. 180, § 2, whether under federal or state law, including any body or association lawfully operating under a charter granted by a parent body so chartered, and including also any organization or unit mentioned in MGL c. 40, § 5, cl. 12, owning, hiring or leasing a building, or space in a building, of such extent and character as may be suitable and adequate for the reasonable and comfortable use and accommodation of its members, provided that its affairs and management are conducted by a board of directors, executive committee or similar body chosen by the members at its annual meeting and that no member or any officer, agent or employee of the club is paid, or directly or indirectly receives in the form of salary or other compensation any profits from the disposition or sale of alcoholic beverages beyond the amount of such salary as may be fixed and voted annually within two months after January 1 in each year by the members or by its directors or other governing body and as shall in the judgment of the local licensing authorities and the Commission be reasonable and proper compensation for the services of such member, officer, agent or employee. Such club shall file with the local licensing authorities and the Commission annually within three months after January 1 in each year a list of the names and residences of its officers, together with the amount of salary or compensation received by each employee engaged in the handling or selling of alcoholic beverages.
- The Alcoholic Beverages Control Commission established under MGL c. 6, § 43.
- A building or part of a building owned or leased and operated by a person holding a duly issued and valid license as an innholder, under the provisions of Chapter 140 and provided with adequate and sanitary kitchen and dining room equipment and capacity for preparing, cooking and serving suitable food for its guests, including travelers and strangers and its other patrons and customers, and in addition meeting and complying with all the requirements imposed upon innholders under said Chapter 140.
- LICENSING AUTHORITIES
- The Commission or the local licensing authority, or both, as the case may be.
- LIQUEUR or CORDIAL
- All alcoholic beverages manufactured or produced by mixing or redistilling neutral spirits, brandy, gin or other distilled spirits with or over fruits, flowers, plants or pure juices therefrom, or other natural flavoring materials, or with extracts derived from infusions, percolations or maceration of such materials and containing no less than 2 1/2% sugar by weight.
- LOCAL LICENSING AUTHORITY
- The Board of Selectmen.
- MALT BEVERAGES
- All alcoholic beverages manufactured or produced by the process of brewing or fermentation of malt, with or without cereal grains or fermentable sugars, or of hops, and containing not more than 12% of alcohol by weight.
- Space, in a suitable building, leased or rented or owned by a person holding a duly issued and valid license as a common victualler under the provisions of said Chapter 140, and provided with adequate and sanitary kitchen and dining room equipment and capacity for preparing, cooking and serving suitable food for strangers, travelers and other patrons and customers, and in addition meeting and complying with all the requirements imposed upon common victuallers under said Chapter 140. No advertising matter, screen, curtain or other obstruction which, in the opinion of the licensing authorities, prevents a clear view of the interior of a restaurant shall be maintained in or on any window or door thereof after the said authorities have ordered the removal of such obstruction and have afforded the licensee thereof a reasonable opportunity to remove the same.
- An establishment where alcoholic beverages may be sold, as authorized by this chapter, with or without food, to be served to and drunk by patrons in plain view of other patrons, all entrances to which shall open directly from a public way. The business conducted therein shall be open to public view from the sidewalk level and the establishment shall be properly lighted. No window facing a public way shall be obstructed by any screen or other object extending more than five feet above the level of the sidewalk on which the establishment abuts, but in no event shall any screen or obstruction prevent a clear view of the interior of said "tavern."
- All fermented alcoholic beverages made from fruits, flowers, herbs or vegetables and containing not more than 24% of alcohol by volume at 60° F., except cider containing not more than 3% or containing more than 6% of alcohol by weight at 60° F.
A restaurant licensee shall sell alcoholic beverages only in the dining room or dining rooms of the restaurant.
A hotel licensee shall sell alcoholic beverages only in the dining room or dining rooms and in such other public rooms or areas of a hotel as the local licensing authorities may deem reasonable and proper and approve in writing; provided, however, that sales may also be made by a licensed innholder to registered guests occupying private rooms in his or her hotel, and in the dining room or dining rooms and in such other public rooms or areas of buildings on the same premises as the hotel and operated as appurtenant and contiguous to and in conjunction with such hotel, and to registered guests occupying private rooms in such buildings and in the case of condominium accommodations that are located appurtenant and contiguous to and also upon the same premises as a hotel, sales may be made by the hotel licensee as the licensing authority may deem reasonable and proper and approve in writing.
A war veterans corporation licensee shall sell alcoholic beverages only in such areas of the premises as authorized by its license.
A club licensee shall sell alcoholic beverages only in such areas of the premises as authorized by its license.
It shall be the applicant's responsibility to file all applications in a timely manner and upon such forms as prescribed by the Commission or the local licensing authority.
All applications for an original license under MGL c. 138, § 12, 15 or 30A, or for the transfer of such a license from one location to another, or for a change in the description of a licensed premises shall be subject to the provisions of said Chapter 138, including but not limited to § 15A of said chapter. No action shall be taken on any such application until the licensing authority holds a public hearing upon the same, as prescribed by law.
No license may be transferred from any individual or entity to another without the approval of the local licensing authority. Such a transfer may take place only after such approval has been obtained and all requirements of applicable law have been met.
No license may be transferred from one location to another without the approval of the local licensing authority. Such a transfer may take place only after such approval has been obtained and all requirements of applicable law have been met.
A detailed written description of the premises, along with a detailed floor plan of the premises, shall be filed by each applicant for the issuance of an original license or transfer of a license in which a change of the existing floor plan, a change of address or a change of description of the premises is contemplated. No physical renovations or alterations affecting the floor plan of any licensed establishment shall be made nor shall any exits or access to exits be changed until such time as the licensee submits a plan to the local licensing authority for approval, and such approval is given. Such a plan and approval of such a plan shall also be required for the addition of any fixture, amusement device, whether coin-operated or not, and any other item to be placed within the premises which shall reduce the existing floor space. Such a plan shall be submitted to the Building Commissioner for his or her determination as to whether any such addition will result in a reduction of the establishment's legal occupancy limit. The Building Commissioner shall report his or her determination to the licensing authority with reasonable promptness.
Renewal of restaurant license. No license to sell alcoholic beverages issued to a restaurant shall be renewed unless and until the holder thereof shall satisfy the licensing authority that he/she is in good faith operating a restaurant and that such restaurant is provided with proper equipment for the service of food to travelers and strangers. The licensing authority may at any time make investigation on its own initiative as to the compliance with license requirements.
It is each license holder's and applicant's sole responsibility to properly complete all forms and applications, to insure all notices and other legal requirements are met in applying for a license, renewal, change of location or description of premises and to provide all supporting documentation required for any such application.
No license or permit under MGL c. 138 shall be granted unless the fee therefor has been paid into the state treasury or Town treasury, as the case may be. Any positive action taken on such license or permit prior to the payment of the fee or fees shall be deemed conditional and shall be effective only upon the payment of the required fee; provided, however, that nothing contained herein shall be deemed to waive the prepayment of any such fee as may be authorized by law. The fee schedule in existence at the time of adoption of these rules and regulations shall remain in effect until otherwise amended as provided for by law.
The local licensing authority may, after hearing or reasonable opportunity therefor, cancel any license issued under MGL c. 138 if the licensee ceases to conduct the licensed business. If the local licensing authority determines that a license should be canceled as aforesaid, the licensee shall have the right to appeal said decision as provided for in MGL c. 138, § 77, as may be amended from time to time.
A licensee shall be presumed to have ceased to conduct the licensed business if said business has been closed for more than seven calendar days. This presumption is rebuttable. Each licensee is required to notify the licensing authority whenever said licensee knows, or has reason to know, that he, she or it shall cease to conduct business for a period of more than seven calendar days. A licensee's failure to provide such notice may be deemed as evidence of the licensee's intent to cease to conduct the licensed business.
A licensee submitting an application for renewal of a license expiring on December 31, 1995, and each renewal application submitted thereafter, shall warrant and represent by the submission of said application that the licensed business has not been closed for a period of more than seven calendar days as of December 31, 1995, or December 31 of any subsequent year.
No licensee shall store, keep for sale, sell or deliver alcoholic beverages in any area of the licensed premises not specified on the license and not shown on the floor plan for the premises.
The sale, delivery and consumption of alcoholic beverages must be plainly observable by other persons on the premises. Any booth, stall or enclosure which prevents such an observation is prohibited.
The sale, delivery or consumption of alcohol may take place only in those areas of the premises as allowed by law.
No licensee shall restrict access to the premises to any individual or refuse to sell alcoholic beverages to any individual solely on the basis of any individual's race, color, religious creed, national origin, sex or ancestry. It is the stated policy of the local licensing authority that all licensees must comply with this provision, unless such licensee is otherwise exempt under applicable law, and all licensees are required to abide by all local, state and federal laws pertaining to their individual establishments as to the sale to the public. Nothing contained herein shall require a licensee to serve to a member of the general public who has been lawfully excluded from the premises as a result of a no-trespass notice, restraining order, court order or other legal process or order, or who is intoxicated, not a member or guest of a club or veterans' corporation licensee or who may otherwise be lawfully excluded from the premises. Nothing contained herein shall be deemed as allowing the sale of alcohol or alcoholic beverages to persons who are legally underage.
No licensee required by the terms of its license to sell or deliver alcoholic beverages to the general public may hold any private function or party; provided, however, that nothing contained herein shall be deemed to prohibit a licensed establishment from maintaining private function room(s) if otherwise permitted by law and the licensee has obtained all other necessary licenses and permits.
All hours of sale by a licensee shall be during the time periods noted on the license. Additionally, no holder of a restaurant license shall be entitled to serve alcoholic beverages before or beyond the posted hours of operation of the restaurant.
No sale of alcohol or alcoholic beverages shall be permitted before or after the time periods stated on the license. When a license allows for the consumption of alcohol or alcoholic beverages on the premises, within 15 minutes after closing, all bottles, glasses or containers used for drinking purposes shall be cleared off the tables and bar, and no alcoholic beverage shall be consumed more than 15 minutes after closing. This prohibition applies to all persons, including but not limited to patrons, members, guests or employees. No later than 30 minutes after closing, all patrons, members, guests or other members of the public shall have vacated the premises. Nothing shall prevent the licensee, his or her employees or agents from remaining in the premises so long as in the performance of such task or tasks as authorized by law.
No alcoholic beverage shall be sold or delivered on any premises licensed under MGL c. 138 to an intoxicated person.
The sale or delivery of alcoholic beverages to a person under the age of 21 years is prohibited. No establishment licensed under MGL c. 138, § 12, shall permit a person of legal drinking age to purchase any alcoholic beverage or deliver any alcoholic beverage to a person under 21 years of age. No such licensee shall allow a person under the age of 21 to consume any alcohol or alcoholic beverages on the premises. Each licensee under MGL c. 138 shall make sales and deliveries only to persons as expressly provided for under the provisions of MGL c. 138.
Any licensee, or agent or employee thereof, who reasonably relies on a liquor purchase identification card as authorized by MGL c. 138, § 34B, and issued by the Registry of Motor Vehicles for the Commonwealth of Massachusetts or a valid operator's license issued by said Registry pursuant to MGL c. 90, § 8, or on a valid passport issued by the United States government, or by the government, recognized by the United States government, of a foreign country, or a valid United States issued military identification card for proof of a person's identity and age shall not suffer any modification, suspension, revocation or cancellation of license for delivering or selling alcohol or alcoholic beverages to a person under 21 years of age. Any licensee, or agent or employee thereof, who reasonably relies on such a liquor purchase identification card or such a valid operator's license issued by said Registry pursuant to MGL c. 90, § 8, for proof of a person's identity and age shall be presumed to have exercised due care in making such delivery or sale of alcohol or alcoholic beverages to a person under 21 years of age. Such presumption shall be rebuttable, provided that nothing contained herein shall affect the responsibility of the licensee not to serve any person who is intoxicated.
Nothing contained herein shall prevent a licensee from employing any person 18 years of age or older for the direct handling and selling of alcoholic beverages or alcohol. Notwithstanding the provisions of Clause (14) of Section 62 of Chapter 149 of the General Laws, any licensee may employee a person under the age of 18 who does not directly handle, sell, mix or serve alcohol or alcoholic beverages.
In the event that the legal drinking age is either increased or decreased, or in the event that the laws regarding the age of employment of persons are amended, these rules and regulations shall automatically be amended to conform to applicable law.
The issuance of a license shall not be deemed a compliance by the licensee with any other law or regulation. It is the licensee's sole obligation to comply with any other laws or regulations. It is expressly understood by the licensee that the local licensing authority, when allowed by law, may take action against the licensee for failure to comply with the provisions of other laws or regulations.
By submitting any application required herein or under the provisions of MGL c. 138, and by accepting any license granted, the licensee or proposed licensee warrants and represents to the local licensing authority that said licensee shall be in compliance with all rules, regulations and laws governing the operation of their business prior to selling any alcohol or alcoholic beverages under said license, including but not limited to all Building Code requirements, occupancy requirements and state and local health rules, regulations and laws, and the licensee acknowledges and understands that the granting of any such license is a condition precedent to the exercise of the rights granted under said license.
Nothing contained herein these regulations shall be deemed to entitle a holder of a license to sell or deliver alcohol or alcoholic beverages other than as provided for by the specific license granted.
The issuance of licenses to persons who are not citizens of the United States is subject to the requirements and prohibitions of the General Laws. Corporations are advised to consult the General Laws regarding the citizenship requirements for stockholders, directors, officers and managers.
All sales records required by law shall be maintained and made available to the local licensing authority as provided for by law. The licensee shall submit to the licensing authority upon its request a list of all employees. Such list must be submitted within seven calendar days of receipt of the request.
All licenses, permits and building certificates required for the operation of the licensee's business, club or organization shall be posted in a conspicuous place and made available to the local licensing authority or its agents, and the licensee shall post in a conspicuous place all notices and postings required by law pertaining to the sale, delivery or consumption of alcohol and alcoholic beverages.
The licensee shall keep all portions of the licensed premises to which the public is granted access illuminated to such a degree as to ensure safe movement of the persons legally on the premises and to provide persons the ability to observe all such areas of the premises. In no event shall the premises be illuminated to a lesser degree than may be otherwise required by law.
Illegal gambling in any form is prohibited.
The licensee shall not permit or allow any person or persons to conduct any illegal activity on the premises, whether or not such activity is in an area to which the general public has access.
The local licensing authority or its agents may at any time enter upon the premises of any person or entity who is licensed by it to ascertain the manner in which the licensee conducts the business carried on under such license. All duly appointed police officers for the Town of Fairhaven holding the rank of detective, sergeant or above shall be deemed the authorized agents for the local licensing authority. The Building Commissioner shall be deemed an authorized agent for the purpose of inspecting the licensed premises to ensure compliance with the floor plan required to be submitted by these regulations. Nothing contained herein shall be deemed to limit any individual's authority to enter the premises as may be otherwise provided for by law. Additionally, the local licensing authority may appoint such other individuals as agents as it deems fit.
Any person who hinders or delays any authorized agent of the local licensing authority in the performance of his/her duties, or who refuses to admit or locks out any such agent from any place which such agent is authorized to inspect, or refuses to give such agent such information as may be required for the proper enforcement of MGL c. 138 shall be punished as provided for under MGL c. 138, § 63A.
After a hearing held in conformance with the applicable provisions of law, if any license holder is found to be in violation of these rules and regulations or the rules and regulations of the ABCC or any applicable law, the licensing authority shall impose such minimum penalty or penalties for violations of law or rules and regulations as provided for in Appendix A of these rules and regulations, it being expressly stated that the penalties provided for in said Appendix A shall be the minimum penalty imposed for those violations listed, and the Board may impose more severe penalties or take such other action as provided for by applicable law if the Board determines the facts warrant the same. In the event that there is found to be a violation of any said rule, regulation or law, and no specific penalty is provided for in Appendix A, the licensing authority will look to Appendix A as a guideline in fashioning a penalty.
These rules shall become effective January 1, 1995, and shall remain in effect until rescinded, modified or amended by the local licensing authority as set forth below; provided, however, that an amendment, revision or insertion of any statute, act or resolve, or change of or new rule of the Alcoholic Beverage Control Commission, or vote of Town Meeting which by its terms would rescind, amend, modify or be applicable to these rules and regulations shall be deemed to have done so and shall become a part of these rules and regulations without the necessity of notice and hearing required under Subsection B.
The Board of Selectmen, or any succeeding authority acting as the local licensing authority under the provisions of MGL c. 138, as may be amended, may rescind, modify or amend these rules and regulations as follows:
A public hearing shall be held on any proposal to rescind, modify or amend these rules and regulations, in whole or in part.
If the licensing authority is the Board of Selectmen, notice of said hearing shall be posted in the same manner as required for a meeting of the Board of Selectmen; provided, however, that such notice only for the purposes specifically stated herein shall be posted no earlier than 14 days prior to the hearing. In computing said time period, the date of the hearing shall be included but not the date of posting.
Said notice shall include a brief statement of the intended action and that any person may inspect a more detailed statement of the proposed action at the office of the Board of Selectmen.
After the close of the public hearing, upon a majority vote of the licensing authority, these rules may be so rescinded, modified or amended.
Any such action shall become effective 30 days thereafter.
Nothing herein shall be deemed to delay the effective date of any applicable statute, act or resolve, change of or new rule of the Alcoholic Beverages Control Commission, or vote of Town Meeting. The same shall become effective as provided for by applicable law.
In the event of any conflict between these regulations and the General Laws or the rules and regulations promulgated by the Alcoholic Beverages Control Commission (or any succeeding authority), the following rules of interpretation shall apply: the General Laws shall prevail over all rules and regulations; the rules and regulations of the Alcoholic Beverages Control Commission shall prevail over the rules and regulations of the local licensing authority, all subject, however, to any applicable law providing otherwise.
These rules shall apply to any licensee or applicant for any license issued pursuant to MGL c. 138.
The local licensing authority shall not be required to provide any notice of any rescission, change, amendment or modification of these rules, other than required herein or by applicable law. It is the licensee's duty to be aware of and abide by these rules and regulations as amended from time to time. Any notice of an approved rescission, change, amendment or modification which may be provided by the local licensing authority on any one or more occasions will be done gratuitously and shall not be deemed to have imposed any such obligation upon the authority on any such occasion, and the authority's failure to do so shall not be deemed a defense or mitigating factor to any action conducted pursuant to § 204-10.
The provisions of these rules and regulations are separable, and in the event that any one or more rule or regulation is deemed invalid, the remaining shall have full force and effect.
Any hearing to amend, modify, suspend or revoke any license for any lawful reason, including but not limited to a violation of these rules or any applicable law, shall be conducted in accordance with the provisions contained in MGL c. 138.