Greg Roach's Berkshires Blog
Saturday, March 31, 2007
  Whereby my fascination with gets topical
After the dustup between the Mountainview "Restaurant" and the town of Clarksburg started getting ridiculous, I have been trying to figure out Massachusetts's liquor laws for myself. makes the laws easy to find, but they are not terribly easy to interpret.

I've been in the hospitality industry for 24 years. I've been licensed in three states to serve and sell alcoholic beverages. I am TIPS certified and well trained in the field alcohol service management. My experience includes managing food and beverage at an NBA Arena, the World Trade Center-Seattle and at various restaurants, clubs and banquet halls.

For what it is worth, the law in Massachusetts is befuddling compared to those in the other states I've dealt with. Here is the definition of a "Club" for alcohol purposes:
"Club'', a corporation chartered for any purpose described in section two of chapter one hundred and eighty, 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 clause twelfth of section five of chapter forty, 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 first 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 first 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.
Did you catch that? The law is pretty tight about what constitutes a club. It even regulates when and how bonuses based on liquor sales can be paid to employees.

So here is the legal definition of a restaurant for liquor licensing purposes:
"Restaurant'', 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 one hundred and forty, 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 one hundred and forty. 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.
And here is a Tavern:
''Tavern'', 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.
Those are pretty damn loose. But did you notice the clause in the restaurant section about
"... preparing, cooking and serving suitable food for strangers, travelers and other patrons and customers,..."?
It seems very clear that a "restaurant" must be open to the general public. In Mountainview's case, their succesful argument to the AABC was that the food stored in their kitchen was for banquets, which are generally *not* open to the general public, but rather a select group of invited guests. I am puzzled how the Clarksburg Board and AABC never seemed to mention or even notice this fact. Add to this the fact that Mountainview restricted entry to those 'of age' during most hours of open operation and their clientele becomes an even narrower group. Oh , and don't forget that they did not serve prepared food during these open hours which means that they were not exercising their "common victualler" license during these hours. (Ya' gotta love the colonial language!)

What it boils down to is that a restaurant could also fit the definition of a tavern and, in some cases, a tavern could also hold a "common victualler" license and thereby meet the definition of restaurant. In culinary terms, we call this type of confusion a "clusterf**k".

So, let me go back to something I suggested in Andy's comments several months ago. There should be a simple test for taxation and licensing purposes that legally differentiates between a "tavern" and a "restaurant". (You can keep all the jargon about windows and doors if you like.)

If a food and beverage operation receives equal to, or greater than, 50% of its revenue from food sales, it is a "restaurant". If it sells more booze than food, then it is a "tavern".

Wasn't that easy?

Are you listening Beacon Hill?

UPDATE: I have it from a very good source that Mountainview did, indeed, run a small fried food menu available during bar hours. With this knowledge, it appears that they are square under our Commonwealth's goofy liquor laws. And, supposedly they are opening Friday night with a small, but full service menu.

Also, an insurance professional has assured me that the ratio of booze to food is how the insurance industry in Massachusetts determines rates. They know the difference between a bar and a restaurant.
Excellent analysis--A-One--right on--good for you---plus I wonder if the State ABCC is governed by the Open Meeting law---when has one out of three ever constituted a quorum for a decision?????perhaps the first move- and it costs nothing as opposed to a court appeal- is to file a compliant with the Ethics Commission----I have no idea-- but it seems nobody has pursued this angle--- chbpod
I disagree, I don't think that is a valid test at all. I can think of few scenarios that would flunk the test. Also when an establishment first opens, how is one to know what is a restaurant and what is a tavern.

I would think the Frieght Yard Pub would be close if not out right flunk this test. Certainly both the Pitchers mound and Mike Bloom's place (name excapes me at the moment) which originally open as restaurants would flunk. How about the former EGL?

What if every fourth drink where rung up as food? Sure the food and liquour costs would be out of whack, but food/booze percentages would work. Or how about an all you can deal for $10 bucks and the customers drink $50 worth of booze while consuming the food?

There has to be some formula of intent plus inventory/menu offerings plus sales, but even then there would be a few that would make it work to their advantage.
Interesting points, Greg, but what about the case law?

I say this because I read the statute to say that a restaurant is so defined if it is:

1) In a building
2) Whose owner/lessor/rentor has a common victualler's license
3) In which is contaned a valid kitchen, dining room, and:
4) Has the equipment and capacity for preparing, cooking, and serving food to the anyone who walks in off the street.

Nowhere does it say the food has to actually BE cooked and served, just that the equipment and capacity for it to be served is there.

If the town of Clarksburg goes by this definition of "restaurant", there was no question that the Milazzos had the equipment, capacity, licenses, and permits for a restaurant. The state inspected and found it. Therefore, statutorily, they meet the requirements and the denial of the license was correctly overturned on appeal by the state.

If the town has a leg to stand on, it's not a statutory one. They'd have to go research cases of this type and find out what the overriding case law is.

If the town doesn't want to spend the money to keep the peace at the MV (by the way, how do drunks and fights go away if they start serving nachos and clam chowder?), why don't they just go dry and make the entire problem go away?
It's really very simple-- just walk in off the street and ask for a tunafish sandwich (toasted wheat) if they can't accomodate you they have not demonstrated a capacity to serve--------so as I read the varous news articles on this issue-- it seems that Clarksburg does not give out Tavern licenses---just restaurants and clubs-- BUT I do remember a real dive----on Route 8 just South of the Middle Road intersection---some -almost 40 years ago-----almost think the name was Southview---but I really can't remember---Andy would be of no help--- he'd have been 2 years old---anyway what ever the name-- not a restaurant and not a club--- chbpod
Snoop - The formula could be whatever the state decides, but the only number that means anything is one that represents the amount of alcohol served. Also, it is easy enough to scam the tax man, which is why any such formula should be easy to verify. Using widely accepted "cost of sales" formulas is the way to go. If a place is too far out of wack- then they get busted.

Which leads me to Ross's point - Your argument makes my point exactly - under the current law, taverns masqerade as restaurants. Based upon what I've read, I have to assume that Key West and The Purple Pub (RIP) are both licensed as restaurants (just guessing. I could be wrong), which is absolutely ridiculous. They are bars, plain and simple. So is the Mountainview.

This post is not so much about Mountainview as it is about the screwy nature of MA's liquor laws.

And the fact is that many states use a variation of the formula and it works very well. Our present system appears to have been cobbled together from three periods (19th century, post-prohibition and 1980s era MADD) rather than being comprehensive and well thought out. Read the regs yourself and decide whether they could use an overhaul.
Greg is correct-- clarity is needed-
Pod, I belive the place you are thinking of in Clarksburg was called Sunnysides.
Bingo-- I was sure it began with "S"-- maybe I have been reading It's Your Dime too much and couldn't get Southview out of my thought process--chbpod
I have seen more ridiculous rules than these. I took a look at the sign hanging up in a bar in Adams (the standard-looking one with the legal age warning) and found that it is illegal to sell alcohol on any election day, and that it is illegal for a non-US citizen to serve you alcohol. I know that at least the first rule is ignored. I think the latter one must be a Town of Adams rule, unless I misread it (the state does require that the manager and directors of the business be US citizens).
It is the whole set of rules that is ridiculous. I used these only because of the relevance to Mountainview.
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