PORTLAND – Fans of the Cactus Club won’t have to worry about the Portland bar shutting down any time soon, even though city councilors voted last week against renewing its liquor license.

That’s because an appeal to the state liquor board could take six to nine months.

City officials say that allowing a poorly managed bar to stay open after having its license revoked is inviting more problems.

A bill proposed by a Portland legislator would eliminate the state hearing, requiring any appeals to be made directly to District Court.

The amendment proposed by Democratic state Rep. Diane Russell won the unanimous endorsement of the City Council’s public safety committee last week after a hearing at which nobody spoke against it.

“It’s an appeals process that really doesn’t add much value to anybody,” said committee Chairman Ed Suslovic.

Suslovic said the bill was crafted long before the council on Monday turned down the Cactus Club license. However, it does seem to target the approach taken by the club’s owner, Thomas Manning.

The council denied the Cactus Club license in February 2009, citing a high volume of police calls over the previous year, and Manning appealed, first to the state, then to District Court and ultimately to the Maine Supreme Judicial Court.

Throughout the process, he was able to keep operating, and he ultimately prevailed before the state Supreme Court in July 2010 on a technicality: He hadn’t formally received a decision notification within the required time frame.

Manning could not be reached for comment for this story.

Suslovic says the state Bureau of Liquor Enforcement review was more appropriate when the state was responsible for enforcing most liquor laws. The state eliminated most of its liquor inspectors in 2003 to save money, leaving enforcement to local officers. That makes the state appeal redundant, he said.

David Lourie, a former city attorney for Portland who represented owners of the Skybox in Westbrook, thinks the bill is a bad idea and that the state appeal is an important check on elected councilors.

“I think it would be grossly unfair to any bar owner,” he said. “My experience dealing with any municipality, including Portland, is city officials are elected officials. They’re not used to applying the law and acting as judges.”

The bill also would require a bar to seek a court stay in order to continue operating while the case is on appeal. Currently, bars can remain open while the denial is under appeal to the state and can seek to remain open if that decision is appealed to a judge.

Lourie said without being able to remain open during an appeal, even unfair council decisions would force someone out of business.

“Most places would be out of business permanently if they’re out of business temporarily,” he said. “Unless they get a stay, they lose clientele and with no way to pay bills, they go bankrupt.”

The state Bureau of Liquor Enforcement has heard an average of slightly more than two appeals per year since 2005, procedures that are conducted like court hearings with evidence and witnesses introduced before a hearing examiner. Sometimes, cases are settled just before the hearing, said Jeffrey Austin, supervisor of the bureau.

The bureau hasn’t overturned a municipal decision since 2005.

“On appeal, the decision of the city council has to be upheld unless the bureau finds by clear and convincing evidence that the decision is without justifiable cause,” said Gary Wood, Portland’s corporation counsel.

It has happened, though. Andy’s Tavern in Westbrook — the site that later became the Skybox — regained its license in 2002 after the state appeals board determined that the Westbrook City Council showed no justifiable cause when it turned down the bar’s license because it didn’t fit in the residential neighborhood.

Russell’s bill also would allow municipalities to designate another board to hear liquor license renewals. In Portland, that could mean creation of a liquor licensing board.

Suslovic said appointing such a board would take decisions out of the political realm.

Lourie said that part of the proposed legislation would be an improvement.

“They’re political animals,” he said. “They don’t do well trying to act as judges.”

No date has been set for a hearing on the proposal.

Staff Writer David Hench can be contacted at 791-6327 or at:

dhench@pressherald.com

 

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