Wednesday, April 24, 2024

Cambridge’s license commissioners, with their executive director at right, prepare Wednesday for a hearing resulting from the use of candles at the UpperWest wine bar and charcuterie. (Photos: Marc Levy)

The UpperWest restaurant came away with a three-day suspension from a License Commission hearing Wednesday that teetered at times between the Orwellian and the Kafkaesque.

UpperWest owners Kim Courtney and Xavier Dietrich await their hearing.

The suspension is for what commission chairwoman Nicole Murati Ferrer called “egregious” threatening of fire enforcement officials who went to the 1 Cedar St., North Cambridge, wine bar and charcuterie Sept. 29 to prevent its use of tea lights – even though the fire officials affirmed Wednesday publicly that the threats were non-physical.

“I did not take it as a physical threat. [Maybe] she wanted to get me in trouble somehow with my position,” Deputy Chief Peter Donovan said. “I took that to mean … that we would get in trouble for being wrong and harassing her,” Capt. Philip Arsenault said.

The License Commission is made up of the chairwoman, acting chief of the fire department Gerard Mahoney and Police Commissioner Branville G. Bard Jr. The police commissioner was asked twice, during a break in the hearing and then afterward, the legal basis for issuing a punishment for a non-physical threat, which would seem to cross over into First Amendment territory. He would not answer.

Commissioners didn’t set a punishment for the use of tea light candles because UpperWest owners Kim Courtney and Xavier Dietrich have already filed a state legal appeal to argue that they were never shown a statute about using candles to which they could respond.

Candle regulation

Potted tea lights such as the one at right were in use when fire officials came to UpperWest in September.

Before the visit by Donovan, Arsenault and police officers at 7:15 p.m. Sept. 29, a busy Saturday night, the city had pegged its insistence that the tea lights are illegal on a state law about cooking equipment – UpperWest’s tea lights are not used for cooking – and laws that give the fire department the authority to declare them illegal. But the fire department hadn’t, so when Courtney and Dietrich went looking for laws, they found none.

That has changed since the fire department began its campaign against UpperWest. The department surreptitiously posted a one-sentence “regulation” recently, without public process, that “The Cambridge Fire Department does not allow the use of candles unless approved by the Fire Prevention Bureau.”

A public records request revealed that the city has issued no permits to residents or businesses for candle use within the past three years.

Since this blanket regulation has caused consternation throughout the city from residents concerned about using candles in their home and at religious ceremonies, Mahoney asked Donovan to clarify it. Donovan explained that private use at homes and in religious ceremonies was exempt – details that don’t appear in the regulation as of Thursday, though presumably they could be added to the fire department website at any time. The city has not responded to a request to describe the proper process for posting regulations, or what process the fire department followed in posting this one.

Mahoney, asked Wednesday when the candle regulation was posted and why, said, “No comment.”

Asked previously whether the city had a law about candles in restaurants, city spokesman Lee Gianetti said no: “The fire department indicates that the use of candles in restaurants in Cambridge is governed by the Massachusetts Fire Safety Code.”

Astonishingly, on Thursday – the day after the hearing’s extensive conversation about the regulation added recently by the fire department to its city website, Gianetti maintained that position: “There have been no new regulations regarding candles.” He said exemptions for candle use in homes and by religious institutions “are set forth in the state regulations.”

Attorney-client privilege

Courtney and Dietrich had asked Donovan about applicable laws in an email exchange after a first fire department visit Aug. 3 and before the second, surprise visit Sept. 29; Donovan sent only the state statute about using candles as “portable cooking equipment” and went silent when the UpperWest owners asked for clarification.

According to the fire officials, that’s because the matter was handed off to the city solicitor. The assertion led to an exchange describing a city policy straight out of the paranoid works of Franz Kafka or George Orwell, in which citizens deal with purposefully opaque bureaucracies. In the exchange, the officials say subjects of law enforcement actions don’t have access to information about those actions because of “attorney-client privilege”:

Courtney: Did I respond to your letter of Aug. 6?
Donovan: Yes, you sent me an email.
Courtney: Did you respond to my email?
Donovan: Our procedure was that it was being handled by the city solicitor’s office [from that point], so all correspondence would come out of the city solicitor’s office.
Courtney: I sent you three emails after that making it clear that my understanding was that the portable cooking equipment statute did not apply to our business. You didn’t respond. You forwarded something to the city solicitor that you have, to date, still refused to produce.
Donovan: I’m not sure what you’re referring to.
Murati Ferrer: If it’s with the city solicitor’s office, that’s an issue with the city solicitor.
Courtney: I’m asking if you sent a letter in response to my response to you to the city solicitor.
Murati Ferrer: That would be attorney-client privilege.
Courtney: Did the city solicitor write back to me in regard to our use of candles?
Donovan: I have no idea.
Courtney: So you left us hanging with the knowledge that we weren’t using portable cooking equipment.

City solicitor Nancy Glowa confirmed Tuesday that she got a Sept. 11 memo from Mahoney about UpperWest, but it “is being withheld pursuant to … the attorney-client privilege.” No communication from the Law Department was ever received at UpperWest, according to Courtney and Dietrich.

As seen on a Sept. 29 video made of the fire and police visit to UpperWest, when the officers entered the restaurant to see its tea lights extinguished or shut it down, it’s with the assertion that they were at UpperWest “with the backing of City Hall and the city manager.” In the video, Donovan tells Courtney and Dietrich that fire officials had “talked to the legal department … and they told us to enforce as we would for any other business.” The enforcement officials said that since Aug. 3 the matter had been “referred to the city solicitor [who] informed the chief of the department to enforce the code.”

As a bookend to the public’s inability to see the fire department’s letter to the city solicitor, Courtney made her own public records request for any letter from Glowa indicating the fire department had the authority to issue a cease-and-desist order to UpperWest; on Wednesday the city said there was no such letter, meaning that if the fire department got backing from Glowa to return to UpperWest on Sept. 29, it doesn’t exist on paper or in email.

Just like the fire department that refused to put a cease-and-desist order on paper to which UpperWest could respond, the Law Department may have given the department the go-ahead to act, but without creating a document that could be requested and responded to.

Fire officials’ discretion

Cambridge Fire Department Capt. Philip Arsenault and Deputy Chief Peter Donovan before testifying Wednesday.

Murati Ferrer and other officials said several times during the hearing that it is adequate to give verbal orders to a business to cease and desist even if there is no written law backing up the order or one describing the proper use of candles. “He has the authority to enforce the laws as they relate to fire,” Murati Ferrer said of Donovan, referring to state laws that give officials broad powers to assess a risk and act to protect citizens.

The concept was explored most thoroughly in testimony by Arsenault. 

“The law says we can go in if we see a dangerous atmosphere and shut the place down,” Arsenault said. “We’re here for the protection of the citizens, really. You could have a fluffy dress on. It could hit the candle. You go over. That’s why we don’t have the candles there.” Arsenault returned to the theme of fluffy dresses later.

Although the tea lights are at the bottom of heavy glass pots and UpperWest has no menu items that call for cooking once delivered to the bar or tables, the fire officials insisted that they couldn’t be sure they weren’t being used for cooking just because they hadn’t witnessed cooking by candles during their visits – and therefore the state statute about “cooking equipment” remained as relevant as fears about a conflagration resulting from the presence of tea lights with aluminum bases in glass containers on wood surfaces.

“I read [you] the statute where it says ‘substantial hazard,’ and I told you candles on a table are a substantial hazard,” Arsenault told Courtney. “A counter is combustible, I told you, and also if someone is reaching over, if a woman had a fluffy dress on or something and was reaching over the candles, the candles could catch fire to that dress. And that I thought was a fire hazard according to that regulation, if the candles aren’t in a substantially non-combustible area.”

He agreed the tea lights were in heavy glass containers “I guess,” but said glass was a combustible material because “it could crack. It could be a combustible material by being cracked … like if ice got in it from a drink or something. I don’t have the facts on that, so I’m just going to stick to that I saw the candles, the candles were illegal, and I’m not going to be guessing on it. I don’t have that qualification.”

According to city salaries published by the Cambridge Chronicle, Arsenault was paid $176,232 in 2017 for his work as a captain in the Cambridge Fire Department.

The Boston Fire Department watches over 48 square miles and a population of 685,094, compared with Cambridge’s 6.4 square miles and 113,630 people, and allows use of tea lights and votive candles throughout; it offers the public a three-page document that defines seven candle types and ends with an application to use candles “that do not meet the definition of votive or tea light.”

In Cambridge, though, “as far as I’m concerned, a candle’s a candle,” Arsenault said. “Candles are illegal, no matter what size.”