At UpperWest, the North Cambridge bar, votives such as the one at left were used during a fire department visit in August 2018, and jarred tea lights such as the one at right were in use when fire officials came again the next month. Neither were being used for cooking. (Photo: Marc Levy)

In its vendetta against the UpperWest bar, the city didn’t just enforce a law that didn’t exist, but enforced it the wrong way, a state panel decided Thursday.

Last year, when fire inspectors told the owners of UpperWest in North Cambridge in August 2018 that they couldn’t set out tea lights for atmosphere, the only law cited referred to “portable cooking equipment” such as a flame or heat source used for fondue. When UpperWest pointed this out, fire officials declined to respond. During a surprise inspection Sept. 29, after roughly two months of silence, they cited the same law when threatening to shut UpperWest down if the tea lights weren’t extinguished. (The tea lights were extinguished.) 

UpperWest’s owners were correct: They were being forced to comply with a law that had nothing to do with them, members of the state Alcoholic Beverages Control Commission say.

“The plain language of this section confirms [it] relates only to the use of candles as a part of portable cooking equipment,” the judges said in a written finding issued by the state agency that looked at documents from Cambridge’s License Commission and a commission hearing Nov. 7. “It is undisputed the candles at the Licensee’s establishment were not used for portable cooking equipment, [yet] the local board charged and found a violation for precisely that.”

Because the city’s License Commission “introduced no evidence that the lighted candles were being used for portable cooking equipment, the local board has not met its burden in establishing by substantial evidence a violation,” the ABCC members said.

The state officials were Jean Lorizio, chair of the ABCC; and commissioners Elizabeth Lashway and Kathleen McNally.

“Even if there was a confusion”

Testimony from the city’s own expert witness at an April hearing of the ABCC, fire Lt. Christopher Towski, also admitted Cambridge has no law against the use of candles in restaurants, though since 1990 it’s been forcing some restaurants to give them up as though there was one. Asked by UpperWest co-owner Kim Courtney where the city bars candles in writing, Towski said: “It doesn’t.” 

After the city commission’s Nov. 7 hearing, chair Nicole Murati Ferrer judged that fire officials had given “notice that the use of candles was not allowed … Even if there was a confusion as to the interpretation of the law, it was cleared up by the August 6, 2018, letter sent to UpperWest. It was further clarified by the clear commands provided on September 29, 2018, at the follow-up inspection.”

Yet that August 2018 letter cited the section of the state’s Comprehensive Fire Safety Code about portable cooking equipment, and so did fire officials during the September 2018 visit.

The commission found Courtney and co-owner Xavier Dietrich at fault for candle use anyway. For that and related charges, it issued UpperWest a five-day suspension, which Courtney and Dietrich appealed to the state.

Lawyers, police and fire chiefs

Courtney, reached for comment Friday, said it was surprising that a city commission made up of a licensed attorney, the police commissioner and acting fire chief would be unable to understand the law they enforce. The Nov. 7 hearing was also attended by executive director Elizabeth Lint, another lawyer and the commission’s self-identified legal counsel. 

“The City Council and city manager should be questioning the professional competency of all three commissioners and the executive director in bringing this matter forward at all,” Courtney said. “How does it get this far?”

The six-day, nine-witness appeal heard by the ABCC was argued by two attorneys from the city’s Law Department, and Courtney also wondered: “Why wouldn’t the city’s attorneys have dismissed it?”

“I can only perceive this to be a frivolous action for the purpose of harassment,” Courtney said of the city’s candle case against UpperWest. Courtney and Dietrich were turned away in 2014 from the original location they sought for UpperWest in Mid-Cambridge – at the request of another business owner who didn’t want competition; they became commission watchdogs, calling out several of its questionable practices, and Courtney, a lawyer, represents several businesses and former business owners in a lawsuit against the city.

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