Eight Specific Objections to The Ordinance
The following letter by Michael Whitehouse was shared with members of the Representative Town Meeting on September 3rd, 2018
Fellow Representatives,
I would like to share with you some information which I have acquired in researching the BYOB Ordinance.
Background
Prior to doing this research, I had no personal interest in this issue. In all of my time in Groton, I have not participated in any activities that would have been affected by this ordinance, nor did I know anyone personally whose business would have been affected by this ordinance. My interest in this ordinance was purely as a Representative and a citizen of Groton.
During the course of this research, I have spoken with Town Councilors Heede, Franco, and Obrey, Mayor Granatosky, Police Chief Fusaro, Economic Development Chair Young, Midnight Hookah owner Hassam Abudawood, various Midnight Hookah staff and customers, staff at Henny Penny, Gulf Express on Route 12, The Groton Townhouse Restaurant, as well as an assortment of residents.
On the nights of August 31st and September 1st, I spent from 10 PM to 4 AM at the facility to see their operation in action. I spoke extensively with the security staff, spoke with patrons, observed activities, and observed the process for moving patrons out at closing time.
Summary
When I approach any new rule, the first question to be asked is what is the problem to be solved? Then, we consider what the tradeoffs of the rule will be, because any new rule with have some costs.
I have not been able to find any consensus on a problem that this ordinance is designed to address, but I have found a considerable array of negative impacts that this ordinance will have, from restricting a wide variety of lawful activity to forcing a local business to close to opening the town to legal liability.
No one I have spoken to has been able to provide a single example of another Connecticut town which has passed an ordinance like this, meaning that Groton will likely be the first to do so.
I am also hard pressed to find an example of an ordinance passed in recent memory in any town which will directly and knowingly lead to the closure of a legal and successful business. It is unprecedented to do so, and, in my opinion, unconscionable.
Key stakeholders in town were not involved in the conversation, and many concerns were never addressed in the Town Council’s deliberation of this ordinance.
It is my conclusion that this ordinance should be vetoed, and that the Town Council should engage in a more thorough process, beginning with clearly defining the problem which the ordinance is intended to solve, and continuing with engaging with every stakeholder who will be affected.
Below, I will address eight specific problem areas of this ordinance.
Philosophical Concerns
No Clear Problem to Be Solved
Every new law, statute, regulation, or ordinance has a cost of some kind, whether it’s in enforcement costs, limitations of citizen liberty, or unintended consequences. For this reason, it is vital that any new ordinance must be addressing a clear concern. An ordinance should never be a solution in search of a problem.
In three public meetings, the Town Council never declared a specific problem which must be addressed or concern which should be managed. Although some have speculated at possible benefits that may come from this ordinance, the lack of clear purpose makes the ordinance a solution in search of a problem, rather than a benefit to the citizens we serve.
Overbroad
The scope of this ordinance is massively broad. Quoting from the ordinance, this is the range of establishments it includes:
any business facility, such as a dance hall, club, restaurant, lounge, meeting room or association, not licensed by the State of Connecticut Liquor Control Division, wherein patrons twenty-one (21) years of age or older are allowed to bring their own alcoholic liquor to the facility and to consume thereon. This designation includes any such facility regardless of whether such facility requires an entry fee, cover charge, membership fee or allows the practice only when associated with making a purchase at the facility.
This includes the businesses we would think of: dance halls, clubs, restaurants, lounges. But it also includes “meeting room or association.” In those four words, it expands the scope from merely restaurants and lounges to any non-residential space which does not have a liquor license.
This means that the ordinance applies to a yacht club, a hotel meeting room like that at the Hampton Inn, a political HQ, and even a farmer’s barn rented out for a wedding reception.
Specific examples of activities that would be affected by this ordinance beyond those that appear to be intended are:
I have worked in event management for over 20 years, and in that time I have seen many examples of events having difficulty with poorly thought out local laws that were not intended to affect the events but nonetheless did. I have also worked with companies that have blacklisted communities and even entire states as future event venues as a consequence of such experiences. This is just that sort of ordinance which will cause Groton to lose out on such legitimate and profitable event business.
These are just three examples, but there are dozens more that we could think of. Perhaps we do want to impose a curfew on such events, but, if so, we should debate it openly and make clear to the citizens what the consequences of this ordinance will be.
Excessive Discretion
When I brought the examples above to the attention of various Town Councilors and Chief Fusaro, it was suggested that the police would exercise discretion, so they would not cite an election night party or a wedding reception. It was also specified that the police would need probable cause to enter a facility in order to be able to issue citations.
There is nothing in the ordinance which suggests that there is discretion as to whom this ordinance should be enforced upon. Discretion exists to allow the police to use their experience and wisdom to adapt in specific cases which the ordinance might not have foreseen. It should not be an intentional underpinning of the ordinance.
This level of discretion creates three major problems.
The first is that law abiding citizens will follow the law. Someone thinking of planning an event that would go later than the curfew in this ordinance will simply move it to Stonington or New London or another surrounding town.
Second, it creates ambiguity, leaving citizens uncertain as to whether or not they are in compliance or likely to be cited. This ambiguity allows the possibility that enforcement could be perceived to be biased based on race or class, whether or not that is actually the case. An ordinance should be clear and applied equally to everyone or else people will believe it to be unfair.
Finally, while the police might choose to exercise discretion, awkward situations could occur in which there is clear evidence of a violation, such as a Facebook Live video which would create video evidence with a provable timestamp. Such situations could lead to accusations of discriminatory enforcement.
Concrete Concerns
Impact Upon Midnight Hookah
As I was asking around to find out what problem this ordinance was seeking to solve, the name Midnight Hookah was mentioned. I reached out to Mr. Abudawood to get his perspective on the ordinance, confident that he would be aware of it. He was not. I was the first representative from the town to speak to him about it, and I had to explain the various aspects of the ordinance. Upon hearing the details, he informed me that such an ordinance would close his business.
I have had a number of conversations with Mr. Abudawood and members of his staff and customers since that first conversation. There were some issues when Midnight Hookah first opened this past winter, but Mr. Abudawood immediately hired additional security, created new policies, and the issues stopped.
For people who are not out and about at 3 AM, it may be unclear why there is a need for a business that allows BYOB until 4 AM on weekends, and there are two answers to that.
The first is that the fact that there is a great deal of business at that facility from 2 AM to 4 AM tells us that there are a great many citizens who desire to patronize such an establishment during those hours, and there should be a compelling reasons for the government to tell them that they cannot. While there will always be occasional issues when people gather anywhere, Midnight Hookah has not had any major issues in many months. Any place people gather to socialize, including Downtown Mystic, will have an occasional fight or roudy fool, but it is difficult to justify the compelling public interest in telling these citizens that they cannot socialize in a manner they see fit.
Many of the customers of Midnight Hookah work later hours: Electric Boat employees, casino workers, bartenders, waiters, bar and restaurant owners, etc. Just like people who get off work at 5 PM, they like to wind down with a drink after work with friends. However, they get off work at 2 AM.
Downstream Economic Impacts
When customers leave Midnight Hookah, they often patronize other establishments before heading home: Groton Townhouse, Dunkin Donuts, Henny Penny, etc. My preliminary estimates show that this adds up to about $200,000 to $600,000 of downstream economic activity every year.
A Hookah Lounge will be opening in Norwich, and another is potentially planned for New London. Were Midnight Hookah to close, those customers, and their downstream spending would leave Groton for Norwich and New London.
Economic Development Impacts
One of Groton’s create economic development challenges is attracting and retaining millennial and Gen Z residents. Electric Boat faces a challenge that younger workers will leave for more exciting places to live, partly due to a lack of interesting and diverse night life.
300 to 600 individual customers patronize Midnight Hookah every weekend. A Hookah lounge is a community space, a social space. It is a place where people develop friendships, and those friendships grow into roots in the community. This business serves Groton’s economic development objectives in terms of retention of younger residents.
Forcing it to close, will push those young people to socialize outside the town. It could also create a perception that, since their chosen form of legal recreation is not welcome here, they are not welcome either.
Process Concerns
Process Failure
Regardless of what one’s opinion is of the reasons listed above, the fact is that the process that created this ordinance was fundamentally flawed. It is not necessary to hide something behind closed doors. It can be hidden just as effectively but doing it in the open, but making it seem routine and boring. That is what happened here. This ordinance was presented as a simple, non-controversial BYOB restaurant ordinance.
While the Town Council was well aware that this ordinance would profoundly impact Mr. Abudawood’s business, no one reached out to him or invited him to speak at the public hearing. Local business owners are busy running their businesses. They do not have time to monitor the Town Council to be sure that an ordinance isn’t coming through to shut them down. What business owner would dream that the Town Council would create such an onerous ordinance without at least notifying them?
If we want to stop all unlicensed drinking after midnight, or if we want to keep hookah lounges out of our town, or if we wish to give the police broad powers of discretion, that is the perogative of a democratic government, but we must do so openly, with public debate and clear recognition of the full ramifications of the decision we are making.
Potential Liability
An ordinance cannot target a specific business. It cannot be applied unevenly to one population and not another. It must be fair to all. This ordinance is written so broadly and vaguely that it cannot possibly be enforced evenly among all populations, and, since there is only one business in our town which presently allows BYOB after 2 AM, it could be argued that it targets that particular business.
This ordinance manages to both target a specific business and be overly broad at the same time: quite a feat for one ordinance to fail in two such opposite ways.
Furthermore, the town attorney has advised the members of the Town Council not to speak directly with Mr. Abudawood because he had retained an attorney to help him to craft a letter explaining his situation to the town. (This lawer never suggested or threatened legal action.) According to an attorney I spoke to, this may be something called a Section 1983 Civil Rights Violation which could incur massive liability to the town.
Conclusion
The concept of an ordinance which directly and knowingly causes the closure of an otherwise legitimate and successful business is unprecedented and frankly shocking. I can think of no worse way to create a climate that is hostile to new business than the spectre of a town who willfully passed a law which shut down a business.
This ordinance is a solution in search of a problem, seeking to solve an issue which no one can clearly define. It will force a local, successful business to close, cost our local economy hundreds of thousands of dollars per year, open the town to legal liability, and create the potential of unintentional discriminatory enforcement.
This ordinance as proposed should be vetoed by the RTM. It must be made clear that the Town Council must do their proper due diligence before creating such a sweeping law with such profound consequences to our town, our people, and our reputation.
Respectfully Submitted, September 3rd, 2018
Michael Whitehouse
4th District Representative
Fellow Representatives,
I would like to share with you some information which I have acquired in researching the BYOB Ordinance.
Background
Prior to doing this research, I had no personal interest in this issue. In all of my time in Groton, I have not participated in any activities that would have been affected by this ordinance, nor did I know anyone personally whose business would have been affected by this ordinance. My interest in this ordinance was purely as a Representative and a citizen of Groton.
During the course of this research, I have spoken with Town Councilors Heede, Franco, and Obrey, Mayor Granatosky, Police Chief Fusaro, Economic Development Chair Young, Midnight Hookah owner Hassam Abudawood, various Midnight Hookah staff and customers, staff at Henny Penny, Gulf Express on Route 12, The Groton Townhouse Restaurant, as well as an assortment of residents.
On the nights of August 31st and September 1st, I spent from 10 PM to 4 AM at the facility to see their operation in action. I spoke extensively with the security staff, spoke with patrons, observed activities, and observed the process for moving patrons out at closing time.
Summary
When I approach any new rule, the first question to be asked is what is the problem to be solved? Then, we consider what the tradeoffs of the rule will be, because any new rule with have some costs.
I have not been able to find any consensus on a problem that this ordinance is designed to address, but I have found a considerable array of negative impacts that this ordinance will have, from restricting a wide variety of lawful activity to forcing a local business to close to opening the town to legal liability.
No one I have spoken to has been able to provide a single example of another Connecticut town which has passed an ordinance like this, meaning that Groton will likely be the first to do so.
I am also hard pressed to find an example of an ordinance passed in recent memory in any town which will directly and knowingly lead to the closure of a legal and successful business. It is unprecedented to do so, and, in my opinion, unconscionable.
Key stakeholders in town were not involved in the conversation, and many concerns were never addressed in the Town Council’s deliberation of this ordinance.
It is my conclusion that this ordinance should be vetoed, and that the Town Council should engage in a more thorough process, beginning with clearly defining the problem which the ordinance is intended to solve, and continuing with engaging with every stakeholder who will be affected.
Below, I will address eight specific problem areas of this ordinance.
Philosophical Concerns
No Clear Problem to Be Solved
Every new law, statute, regulation, or ordinance has a cost of some kind, whether it’s in enforcement costs, limitations of citizen liberty, or unintended consequences. For this reason, it is vital that any new ordinance must be addressing a clear concern. An ordinance should never be a solution in search of a problem.
In three public meetings, the Town Council never declared a specific problem which must be addressed or concern which should be managed. Although some have speculated at possible benefits that may come from this ordinance, the lack of clear purpose makes the ordinance a solution in search of a problem, rather than a benefit to the citizens we serve.
Overbroad
The scope of this ordinance is massively broad. Quoting from the ordinance, this is the range of establishments it includes:
any business facility, such as a dance hall, club, restaurant, lounge, meeting room or association, not licensed by the State of Connecticut Liquor Control Division, wherein patrons twenty-one (21) years of age or older are allowed to bring their own alcoholic liquor to the facility and to consume thereon. This designation includes any such facility regardless of whether such facility requires an entry fee, cover charge, membership fee or allows the practice only when associated with making a purchase at the facility.
This includes the businesses we would think of: dance halls, clubs, restaurants, lounges. But it also includes “meeting room or association.” In those four words, it expands the scope from merely restaurants and lounges to any non-residential space which does not have a liquor license.
This means that the ordinance applies to a yacht club, a hotel meeting room like that at the Hampton Inn, a political HQ, and even a farmer’s barn rented out for a wedding reception.
Specific examples of activities that would be affected by this ordinance beyond those that appear to be intended are:
- A New Year’s Eve Party - New Year’s Eve falls on a Monday this year. If one were to rent the Hampton Inn’s meeting room, or a yacht club hall, or any other non-residential space to which they could bring their own champaign, the toast at 12:01 would be in violation.
- Wedding Receptions - Some wedding receptions are earlier in the day, but some, especially younger couples, choose to party into the night. If they do so at an establishment where they bring their own (including outside catered events), they would be required to stop drinking at midnight or 1 AM depending on the day of the week.
- Election Night Parties - After the polls close, the hard working campaign staff and volunteers will often return to the party HQ wait for the results to come in. This often involves an adult beverage. If the count runs later than midnight, then they will have to stop drinking at midnight because a political party would count as an “association.”
I have worked in event management for over 20 years, and in that time I have seen many examples of events having difficulty with poorly thought out local laws that were not intended to affect the events but nonetheless did. I have also worked with companies that have blacklisted communities and even entire states as future event venues as a consequence of such experiences. This is just that sort of ordinance which will cause Groton to lose out on such legitimate and profitable event business.
These are just three examples, but there are dozens more that we could think of. Perhaps we do want to impose a curfew on such events, but, if so, we should debate it openly and make clear to the citizens what the consequences of this ordinance will be.
Excessive Discretion
When I brought the examples above to the attention of various Town Councilors and Chief Fusaro, it was suggested that the police would exercise discretion, so they would not cite an election night party or a wedding reception. It was also specified that the police would need probable cause to enter a facility in order to be able to issue citations.
There is nothing in the ordinance which suggests that there is discretion as to whom this ordinance should be enforced upon. Discretion exists to allow the police to use their experience and wisdom to adapt in specific cases which the ordinance might not have foreseen. It should not be an intentional underpinning of the ordinance.
This level of discretion creates three major problems.
The first is that law abiding citizens will follow the law. Someone thinking of planning an event that would go later than the curfew in this ordinance will simply move it to Stonington or New London or another surrounding town.
Second, it creates ambiguity, leaving citizens uncertain as to whether or not they are in compliance or likely to be cited. This ambiguity allows the possibility that enforcement could be perceived to be biased based on race or class, whether or not that is actually the case. An ordinance should be clear and applied equally to everyone or else people will believe it to be unfair.
Finally, while the police might choose to exercise discretion, awkward situations could occur in which there is clear evidence of a violation, such as a Facebook Live video which would create video evidence with a provable timestamp. Such situations could lead to accusations of discriminatory enforcement.
Concrete Concerns
Impact Upon Midnight Hookah
As I was asking around to find out what problem this ordinance was seeking to solve, the name Midnight Hookah was mentioned. I reached out to Mr. Abudawood to get his perspective on the ordinance, confident that he would be aware of it. He was not. I was the first representative from the town to speak to him about it, and I had to explain the various aspects of the ordinance. Upon hearing the details, he informed me that such an ordinance would close his business.
I have had a number of conversations with Mr. Abudawood and members of his staff and customers since that first conversation. There were some issues when Midnight Hookah first opened this past winter, but Mr. Abudawood immediately hired additional security, created new policies, and the issues stopped.
For people who are not out and about at 3 AM, it may be unclear why there is a need for a business that allows BYOB until 4 AM on weekends, and there are two answers to that.
The first is that the fact that there is a great deal of business at that facility from 2 AM to 4 AM tells us that there are a great many citizens who desire to patronize such an establishment during those hours, and there should be a compelling reasons for the government to tell them that they cannot. While there will always be occasional issues when people gather anywhere, Midnight Hookah has not had any major issues in many months. Any place people gather to socialize, including Downtown Mystic, will have an occasional fight or roudy fool, but it is difficult to justify the compelling public interest in telling these citizens that they cannot socialize in a manner they see fit.
Many of the customers of Midnight Hookah work later hours: Electric Boat employees, casino workers, bartenders, waiters, bar and restaurant owners, etc. Just like people who get off work at 5 PM, they like to wind down with a drink after work with friends. However, they get off work at 2 AM.
Downstream Economic Impacts
When customers leave Midnight Hookah, they often patronize other establishments before heading home: Groton Townhouse, Dunkin Donuts, Henny Penny, etc. My preliminary estimates show that this adds up to about $200,000 to $600,000 of downstream economic activity every year.
A Hookah Lounge will be opening in Norwich, and another is potentially planned for New London. Were Midnight Hookah to close, those customers, and their downstream spending would leave Groton for Norwich and New London.
Economic Development Impacts
One of Groton’s create economic development challenges is attracting and retaining millennial and Gen Z residents. Electric Boat faces a challenge that younger workers will leave for more exciting places to live, partly due to a lack of interesting and diverse night life.
300 to 600 individual customers patronize Midnight Hookah every weekend. A Hookah lounge is a community space, a social space. It is a place where people develop friendships, and those friendships grow into roots in the community. This business serves Groton’s economic development objectives in terms of retention of younger residents.
Forcing it to close, will push those young people to socialize outside the town. It could also create a perception that, since their chosen form of legal recreation is not welcome here, they are not welcome either.
Process Concerns
Process Failure
Regardless of what one’s opinion is of the reasons listed above, the fact is that the process that created this ordinance was fundamentally flawed. It is not necessary to hide something behind closed doors. It can be hidden just as effectively but doing it in the open, but making it seem routine and boring. That is what happened here. This ordinance was presented as a simple, non-controversial BYOB restaurant ordinance.
While the Town Council was well aware that this ordinance would profoundly impact Mr. Abudawood’s business, no one reached out to him or invited him to speak at the public hearing. Local business owners are busy running their businesses. They do not have time to monitor the Town Council to be sure that an ordinance isn’t coming through to shut them down. What business owner would dream that the Town Council would create such an onerous ordinance without at least notifying them?
If we want to stop all unlicensed drinking after midnight, or if we want to keep hookah lounges out of our town, or if we wish to give the police broad powers of discretion, that is the perogative of a democratic government, but we must do so openly, with public debate and clear recognition of the full ramifications of the decision we are making.
Potential Liability
An ordinance cannot target a specific business. It cannot be applied unevenly to one population and not another. It must be fair to all. This ordinance is written so broadly and vaguely that it cannot possibly be enforced evenly among all populations, and, since there is only one business in our town which presently allows BYOB after 2 AM, it could be argued that it targets that particular business.
This ordinance manages to both target a specific business and be overly broad at the same time: quite a feat for one ordinance to fail in two such opposite ways.
Furthermore, the town attorney has advised the members of the Town Council not to speak directly with Mr. Abudawood because he had retained an attorney to help him to craft a letter explaining his situation to the town. (This lawer never suggested or threatened legal action.) According to an attorney I spoke to, this may be something called a Section 1983 Civil Rights Violation which could incur massive liability to the town.
Conclusion
The concept of an ordinance which directly and knowingly causes the closure of an otherwise legitimate and successful business is unprecedented and frankly shocking. I can think of no worse way to create a climate that is hostile to new business than the spectre of a town who willfully passed a law which shut down a business.
This ordinance is a solution in search of a problem, seeking to solve an issue which no one can clearly define. It will force a local, successful business to close, cost our local economy hundreds of thousands of dollars per year, open the town to legal liability, and create the potential of unintentional discriminatory enforcement.
This ordinance as proposed should be vetoed by the RTM. It must be made clear that the Town Council must do their proper due diligence before creating such a sweeping law with such profound consequences to our town, our people, and our reputation.
Respectfully Submitted, September 3rd, 2018
Michael Whitehouse
4th District Representative
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