Sunday, April 21, 2024

Pemberton Farms, despite operating since 1983 with a clean alcohol sales record, faces a two-day suspension and likely full shutdown of even its grocery and prepared food sales after an August sting. (Photo: Marc Levy)

Around a quarter of the city’s package stores were called before the License Commission last week after getting caught up in an underage-buyer sting.

An underage buyer working with the commission Aug. 6 and Aug. 15 bought six-packs of beer with a marked $20 at 13 shops all over the city, and 11 shops fell for it – 85 percent of the tested shops, and about 24 percent of the city’s roughly 46 package store licenses.

This does not mean Cambridge’s package stores are in the habit of slipping beer to underage buyers; even package stores with fierce reputations for carding were caught up in the sting, including Broadway Marketplace – in business 25 years in Mid-Cambridge without incident. “We’re known in the area for having an extremely tight liquor policy. We have scores of really angry customers. I have emails from 70-year-old Harvard professors complaining that we check their IDs [and] Yelp reviews from 30- and 40-year-old individuals complaining,” said a proprietor, Charles Bougas. 

“There are an awful lot of people who were set up,” Bougas said.

License Commission officials declined comment Monday, as is their practice.

A few of the shop owners seen in videos posted on the Cambridge Observer video channel, while expressing regret Tuesday over falling for the stings and explaining safeguards they have since added, complained through a lawyer that the the buyer was more than 6 feet tall, of heavy build and looked to be in his 30s, pushing state guidelines that underage test buyers should “reasonably look their age.”

At Cambridge Spirits in Kendall Square and Cambridge Wine & Spirits in the Alewife area, the policy is to card people who appear to be 30 or younger, proprietors said. At Sav-More Spirits, also in Alewife, workers card people who look 35 or younger.

Secret shopper

The commission said the buyer is 20 – anywhere from a day to a year too young to buy alcohol legally, since a birthdate wasn’t identified – and had no facial hair. Though a seller at Cambridge Spirits said the buyer had “light to gray hair,” the commission said the hair was brown but refused to present him because if people knew what he looked like, it would be impossible to use him in future stings. The commission didn’t present several kinds of evidence requested, for the same reason, although it was confirmed with the commission that a store’s video surveillance had captured an image of the buyer that could be shared privately anyway. In the past, the commission has revealed details about its buyers, such as first name and birthdate.

None of this went over well with attorney James Rafferty, whom some of the businesses called in for their Tuesday hearings.

Much of his concerns came down to whether the choice of underage buyer suggested entrapment. “At any point in the course of this investigation, when you were seeing such a high number of licensed establishments fail to request ID, did it at any point cause you to question whether the operative might not reasonably look his age?” Rafferty asked while representing Cellar Wine & Spirits in Mid-Cambridge.

Tyler Bubenik, the commission inspector who ran the sting, said, “That was not my conclusion.” In his experience in the industry, “I would have carded that person.”

The chair of the commission, Nicole Murati Ferrer, said the argument was moot. “The fact that someone is tall or not thin does not give a reasonableness defense to anyone,” she said, referring to making assumptions based on someone’s appearance “dangerous” in 2019.

In the case of Cambridge Spirits in Kendall, Ferrer said she was calling for a suspension “whether this individual looked their age or not” though she also assured the proprietor of Broadway Marketplace that the checks were done “pursuant to the law.”

Clean records aren’t a factor

The commission issued two-day license suspensions for the package store cases decided Tuesday even if the stores had clean records dating back several years or even decades. Even a significant sign of contrition at City Liquors in Wellington-Harrington, where the employee who made the sale was fired, didn’t forestall a two-day suspension or even allow proprietors input on which days the business would be affected. And executive director Elizabeth Lint has been enforcing recent license suspensions as shutdowns of an entire business, an approach that could be especially problematic for Broadway Marketplace and Pemberton Farms in North Cambridge, which are grocery stores and sell prepared foods in addition to alcohol.

Pemberton, operating since 1983 with a clean record, got the same two-day suspension as other package stores. Porter Square Wine & Spirits, also open around 36 years without a violation, was suspended for two days.

“These suspensions cause people to go without pay. They hurt the livelihood of a range of people. So a single employee failing to exercise proper judgment while having a good-faith belief someone was of a certain age I think should be a significant factor,” said Rafferty, arguing for progressive discipline that could see businesses given a warning before a suspension – especially since state guidelines say the point of compliance checks is education, not punishment.

“This board does do progressive discipline,” Ferrer said. “But this is a humongous public safety violation issue. Had this licensee had other violations, I would be voting for more than two days.”

Overlooking Cellar infractions

Despite Ferrer’s assurance that progressive discipline relied on the record of the offending package store, The Cellar got the same two-day suspensions as seven other package stores Tuesday. (Four cases were taken under advisement for various reasons.)

When sentencing The Cellar, she said it had “no apparent disciplinary history, at least no recent one.” But unique among all the package stores before the commission, it had two previous charges of sales to underage buyers that went by without remark from either Ferrer or Lint, who began with the commission in July 2005 and identifies herself as not just executive director, but as the commission’s counsel.

In February 2009, a worker at the Cellar package store sold beer to a 17-year-old, and the owners and managers were given a warning at a hearing held April 14, 2009, according to the commission’s own records. The next year, in June, a worker sold a can of beer to an underage buyer and the state Alcoholic Beverages Control Commission held a July 20, 2010, hearing at which the license of the Cellar package store was suspended for three days, a sentence held in abeyance for two years to see if there were further infractions.

The package store was also before the commission in 2015 to answer another problem: Owner Steven Kapsalis had dual licenses for the Cellar Wine & Spirits store and Garden at the Cellar restaurant space at the same location, which isn’t allowed by law. The commission let him transfer the license – seemingly in defiance of the law – to manager Marilyn Carter, with whom he has a personal relationship. This came a year after Kapsalis told the commission he didn’t want competition and commissioners acted to crush the licensing request of the UpperWest bar.

The Cellar case ran into a bit of a problem Tuesday as managers insisted the underage buyer bought a six-pack of Clausthaler, a nonalcoholic beer. Bubenik and police officer Benny Szeto said they thought the purchase was Heineken, which had been the buyer’s beer of choice throughout the sting, and managers at the store insisted they don’t stock or sell Heineken. Bubenik’s photos ultimately showed it was Leinenkugel, which is alcoholic.