AYER - The local bar was well represented. Not a counter for imbibing alcoholic beverages, but rather there were three local attorneys in attendance at the Oct. 16 Ayer Board of Selectmen meeting.
The selectmen voted 3-2 to recommend the transfer of an all-alcohol liquor license to the new owner of the building at 1 Barnum Road. The final decision on the transfer is the state Alcoholic Beverages Control Commission (ABCC).
Attorney Roy Pastor represents husband and wife Prit and Sangita Patel of Lancaster who own and operate Net Variety & Liquors in Shirley. On Oct. 10, Prit Patel, as trustee of Barnum Road Realty Trust, purchased the building located on the Ayer rotary for $400,000 from Peter and June Warren of Harvard.
Patel intends to open a 1,100 square foot store in the building. The anticipated opening date for Barnum Road Liquors is Feb. 1, 2013.
Patel sought selectmen approval to purchase the license now held by Timothy Bresnahan, owner of the would-be liquor store called C.R. Pierce, Inc. at 30 Main Street in Ayer. Bresnahan also owns Piccalino's Restaurant in Shirley. Bresnahan is represented by Attorney Thomas Gibbons of Ayer.
Bresnahan purchased the license from Phil Berry. His son, David Berry, owns Ayer Liquors located nearby at 48 Main Street. While the selectmen approved the transfer on June 14, 2011, C.R. Pierce never opened its doors for business.
Though selectman Gary Luca approved the 2011 license transfer, he did not vote in favor of Patel's license transfer request on the rotary, citing the proximity of Jack O'Lantern Package Store across the rotary at 2 Littleton Road.
"I am a capitalist. I like competition," said Luca. "[But] I can't see having a liquor store a few hundred yards from another one. Competition is good but it's a small town. People are struggling."
Pastor said the rotary "is a gateway to a growing area," and so the store would also serve Devens, Harvard, and Littleton.
"At some point you reach a saturation of a given product," said Chair Jim Fay, who likewise voted against the transfer. Fay said the town's population has remained nearly constant at 7,400 people over the last decade and projected further growth is "10 to 15 years away."
Though he opposed the attempted transfer of a liquor license to the Gulf gas station on Park Street in the spring, selectman Christopher Hillman said he'd support Patel's application.
"Do I think we need another liquor store? No. Do I feel we should stop this man from doing what he has the legal right to do? I don't," said Hillman. "I don't think we'd be stopping restaurants downtown if they all knocked on our door tomorrow and wanted to fill shops."
"I hate to have a double standard," said Hillman. "He owns the building. He did it the correct way. He has the right to open a store there."
"There are some municipalities that have 5 of them around their rotaries or at any one intersection," said selectman Pauline Conley. Other stores shouldn't be afraid of the competition, she said. "People tend to flock to the store they're most familiar with."
"I'm not a lawyer, but at this table we often play that," said Fay. "Two words come to mind - arbitrary and capricious." Fay opposed the gas station transfer in the spring and urged his peers to vote no on the rotary request.
Selectman Frank Maxant wondered if the license was valid or "extinguished by lack of use." Conley said "everybody welcomed" the original transfer Berry to Bresnahan in 2011. "This is no different than that."
Though he initially balked at Patel's request, Maxant credited Hillman and Conley for changing his mind. "Let the market decide," said Maxant. "I vote yes."
Attorney Richard Larkin, representing Jack O'Lantern Liquors, urged a no vote. "It's solely about the public need for the establishment," said Larkin. Larkin said the issue wasn't competition for his clients, but whether adding another liquor store is in the "common good."
Larkin questioned whether the license was invalid since it was not used by Bresnahan. Larkin also questioned the appropriateness of the Barnum Road building to house a liquor store.
Larkin introduced engineer Steve Mullaney, who advised that the site, surrounded by sensitive wetlands, may lack sufficient parking or room to expand the lot. Though located in a General Business zone, Mullaney said the building has been used historically for professional services like a barber shop, travel agent, and a real estate agency - not a retail store.
Pastor advised that vetting the lot is the job of the Planning Board, not the selectmen. Pastor also advised that it is the state, and not the selectmen, that sets the minimum number of licenses in a community. "If we let every town set the number, we'd be subject to the whims of whoever's in office at any time," said Pastor.
"I disagree with you on common good," said Fay to Pastor. "Everyone I talk to - except you- doesn't see the need for another all-alcohol license in town."
Though he admitted, "I'm not a lawyer," Luca cited Woburn and North Adams cases that he said show that the selectmen can reject a license transfer based on the density of licenses in a community.
"I don't' want competition," said Pastor, pointing to the other attorneys in the room. "But the common rule isn't mob or majority ruled."
Though Luca's not a lawyer, Larkin said, "I am" and re-asserted the selectmen can reject a transfer based on the proposed site. "It's not necessary for you to wear blinders."
Maxant suggested the board first confirm the validity of the license. Hillman countered that the ABCC vetted the 2011 transfer just a year earlier. "They're very thorough."
With Luca and Fay dissenting, the selectmen approved the transfer on a 3-2 vote.
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