In The City That Doesn’t Work, I described a trove of licenses that were supposedly approved by phantom commissioners who were not yet on the Board of Licenses. When the City charged me $190 for spending 12 hours and 40 minutes on my public records request at $15 per hour, I asked for a breakdown. The Licensing Administrator, I learned, spent 4 hours and 40 minutes finding the documents, while a team of five Assistant City Solicitors and a paralegal consumed the remaining 8 hours processing them. The legal team devoted part of the 8 hours to blacking out (or, as lawyers say, “redacting”) scattered check numbers, insurance policy numbers, email addresses, home addresses and phone numbers whose disclosure might invade personal privacy. But the lawyers also logged no small amount of time conferring with each other. Two of the lawyers, in fact, had a half-hour meeting regarding my request.
What were those five lawyers talking about? Were they trying to come up with legal reasons to withhold documents that they didn’t want me and the rest of the public to see? Was I effectively paying them for their efforts to do so?
Shown above is the time log maintained by the City of Providence Public Records Unit in connection with my public records request #16-595 for all documents in the files of the Board of Licenses concerning Happy Beats Inc. and other entities. The highlighted names at the left include five Assistant City Solicitors Kathryn Sabatini, Mario Martone, Samuel A. Budway, Etie Schaub and David Ellison, as well as Paralegal Ramona Liberato and Licensing Administrator Serena Conley. Also highlighted is a 30-minute meeting on December 21 between Sabatini, who was principally responsible for responding to the request, and Martone, who regularly appears before the Board of Licenses on behalf of the City. For the original document, click here.
Happy Beats Redux
Let’s pick up our story where we left it in The City That Doesn’t Work. In November 2011, Happy Beats Inc., doing business as Therapy, applied to the Providence Board of Licenses to operate an after-hours entertainment venue from 1:00 to 4:00 a.m. at 62 Dyke Street in Olneyville. In December 2011, the Board conditionally approved Happy Beats’ application “pending approvals from Fire, Fire Alarm, Building, Health, and City Tax Clearance.” Approval from the building department, in particular, required compliance with all applicable zoning regulations. But after a June 2012 public hearing, the Zoning Board of Review denied Happy Beats’ request for an exemption from the parking requirements of the city’s zoning laws. In denying Happy Beats’ request, the Zoning Board relied heavily on the views of Public Safety Commissioner Steven Paré, who testified that “fire apparatus will not be able to get through.” Fire safety was no trivial matter in the state of Rhode Island, which had endured the 2003 Station Nightclub fire, one of the deadliest in U.S. history. The Zoning Board’s decision was never appealed or reversed.
Nonetheless, in January 2014, Licensing Administrator Serena Conley improperly issued a license to Happy Beats, even though it had failed to comply with the Board of Licenses’ original conditions. In short, Happy Beats did not have a valid license to operate from 1:00 to 4:00 a.m.
These facts came to light as a direct result of the public disclosure of documents in the Licensing Administrator’s files. None of these facts could have been lost on the team of five law school graduates, who supposedly spent 8 hours poring over the files looking for material that could be legally redacted under the Rhode Island Access to Public Records Act (APRA, for short). When Assistant City Solicitor Kathryn Sabatini met with Assistant City Solicitor Mario Martone at 4:19 p.m. on December 21, 2016, Martone had already assured the commissioners of the Board of Licenses three hours earlier, “Yes, my understanding is that there is a license.” Relying upon Martone’s statement, the commissioners gave Happy Beats special permission to have a caterer serve alcoholic beverages on New Year’s Eve, even though Happy Beats, now doing business as Dusk 2 Dawn, did not have and never had a liquor license.
Controlling the Flow of Information
When Mayor Jorge Elorza ran for office in 2014, he campaigned on the theme of transparency in government. After Elorza took office in 2015, the Public Records Unit of the Law Department installed new online software to handle the hundreds of public records requests that the City receives every year. That certainly sounds like a fulfilled campaign promise. But the beefed-up Public Records Unit in fact turned out to be an instrument to carefully control the flow of information coming from the City.
The Public Records Unit has employed four principal means to control the flow of information that the Mayor and his administration do not want disclosed. First, it has become apparent that all requests for information from any City department now have to go through the Unit. Second, the Unit routinely takes advantage of a provision in APRA to request an additional 20-business-day extension above and beyond the usual 10-business-day deadline. Third, taking advantage of another provision in APRA that allows it to charge $15 per hour and making inflated estimates of the time needed, the Unit has required those seeking public records to make advance payments that have often run in the hundreds or even thousands of dollars. Fourth, the Unit’s legal team scours the requested documents for anything that might even remotely provide a legal basis for redaction under APRA.
When I made a public records request for copies of the Mayor’s daily schedules, the Public Records Unit responded that it would charge me $4,980 in advance to deliver the requested documents. That’s 332 hours at $15 per hour. I managed to pare the cost down to $60 by asking only for those calendar entries in those pages that mentioned “call time.” When I asked for copies of the agendas of the public meetings of the Board of Licenses that were maintained by the Licensing Administrator, I got pages upon pages with absolutely every handwritten notation obscured by a black box. When I asked for copies of transcripts in the case of Lori Franchina, a Fire Department lieutenant who won an $806,000 jury award against the City and other defendants for sexual harassment and discrimination, the Public Records Unit withheld the documents on the grounds they were trade secrets.
Ironically, my request for documents from the License Administrator’s files on Happy Beats and other establishments turned out to be breakthrough. The documents delivered by the Public Records Unit contained only scattered black boxes covering personal data. Apparently, no one in a team of five attorneys and one paralegal, even after various discussions, calls and meetings, could find any trade secrets, preliminary drafts or notes, correspondence of or to public officials, investigative records, attorney-client communications, or anything else that would somehow justify withholding the material requested.
Liquor Licenses Down the Drain
Meanwhile, Happy Beats and its attorney Nicholas Hemond have been busy working on a legal basis for serving alcoholic beverages up to 2 a.m. even though the establishment doesn’t have a liquor license. If the Board of Licenses goes along with Happy Beats — conveniently ignoring the fact that the establishment also doesn’t have a valid license to operate from 1:00 to 4:00 a.m. — it will create a massive loophole in the system of regulation of alcoholic beverages that has governed the City of Providence and other municipalities throughout the State of Rhode Island since the repeal of Prohibition.
We have a system of liquor licenses that allows local boards to restrict hours of licensees, control the types of alcoholic beverages served, and ensure that bartenders and servers are TIPS certified and have adequate training in checking IDs.
On December 21, the same day that Assistant City Solicitor Martone assured the Board of Licenses that Happy Beats had a valid 1-to-4-a.m. license, the Board allowed Happy Beats d/b/a Dusk 2 Dawn to hire a caterer to serve alcoholic beverages up to 2 a.m. on New Year’s Eve. If the Board extends this one-time exception, it will mean that any restaurant or club can simply hire a caterer to serve alcohol on a regular basis without having to apply for and obtain a liquor license. In theory, caterers are regulated by the state Department of Business Regulation. But in practice, the state has insufficient resources to monitor caterers’ conduct. The local system of regulating the service of alcoholic beverages will be effectively replaced by a broken state system incapable of protecting our communities.
In his November 10, 2016 appearance before the Board on behalf of his client, where he erroneously asserted that Happy Beats was “good by zoning,” attorney Hemond emphasized that the new owner had “invested over a million dollars in improving this area.” Among the specific improvements mentioned by Hemond were “25 thousand dollars in new sound proofing” and “highway style light towers.” “This was a dark and dingy place,” stressed Hemond, displaying before-and-after photos, “that he’s turned into a much nicer, modern establishment…” The owner himself cited “a million dollar investment in this building.” He referred specifically to a “full kitchen” and described the lighting system “as state-of-the-art 3D laser.” Before the Board considers Happy Beats’ proposal, it might want to inquire whether any building permits were requested or granted for the touted improvements.
Speak Up
Let’s see what the Board of Licenses does when it next considers Happy Beats’ request to regularly hire a caterer on Fridays, Saturdays and before holidays to make up for its nonexistent liquor license. Will Assistant Solicitor Martone speak up and address the fact that Happy Beats never got approval from the Zoning Board of Review? Will he speak up about Public Safety Commissioner Paré’s testimony that parking congestion would keep fire engines from getting through? Will the Board’s legal counsel Lou DeSimone speak up about the fact that Happy Beats does not have a valid license to operate from 1:00 to 4:00 a.m.? Will Chairman Juan Pichardo or Vice Chairman Charles Newton speak up and ask Licensing Administrator Serena Conley how dozens of licenses approved by phantom commissioners somehow appeared in her files?
Or has Mayor Jorge Elorza effectively silenced every one of them?
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