By Marc Levy

Tuesday, November 6, 2018

If you lit a candle in Cambridge for any purpose within the past few weeks without first going to the fire department for permission, you have broken the law.

That’s because the fire department, with no public process, added something that at least looks like a law to its website saying so: “The Cambridge Fire Department does not allow the use of candles unless approved by the Fire Prevention Bureau.”

Department and city officials have been silent when asked about the unannounced addition to its website, but it was done in advance of a Wednesday disciplinary hearing before the License Commission over the use of candles at a North Cambridge wine bar and charcuterie. Screen captures of the cached Web page shows how recent the addition is, and the order didn’t exist when the owners of the business, called UpperWest, researched whether candles were allowed in Cambridge restaurants – in fact, as recently as Sept. 4 the department was tweeting out candle safety advice and making no reference to the notion that it “does not allow the use of candles” without permission:

If you must use a candle, never leave the candle unattended. Keep the candle away from combustibles, children, and pets. When you leave the room or go to sleep, put it out and make sure it is out. pic.twitter.com/jz4ewEFsOt — Cambridge Fire Dept. (@CambridgeMAFire) September 4, 2018

Regulating candles for cooking

Meanwhile, fire and police officials have repeatedly cited a state law that they seemed to think proves UpperWest – and every other Cambridge restaurant and bar, dating back decades – cannot set out candles. The state statute does not show that.

UpperWest’s Kim Courtney and Xavier Dietrich were summoned to the disciplinary hearing in an Oct. 12 letter from the License Commission. Rather than the mysterious new law, the letter cites the same state statute cited in emails, official communications and visits to UpperWest about “portable cooking equipment,” such as a flame or heat source used for fondue. The candles at UpperWest aren’t used for cooking – they’re mood-setting tea lights, also referred to as votive candles, set out on the business’ bar and tables inside small glass containers.

Asked directly what statute that was being violated at UpperWest that drew fire inspectors Aug. 3 and then again Sept. 29, acting chief of the fire department Gerard Mahoney – who also makes up one-third of the commission with the police commissioner and a chairwoman – declined to answer because the “matter is currently under investigation.” When the question was appealed to the City Solicitor’s Office, city spokesman Lee Gianetti responded that “the fire department indicates that the use of candles in restaurants in Cambridge is governed by the Massachusetts Fire Safety Code.” Renewed requests for information last week were ignored.

Supporting documentation promised

In comparison, Boston – also governed by state regulation – allows candles without permit or permission and has long offered the public a three-page document that defines candle types, includes an eight-point section just about votive and tea lights and ends with an application for candles “that do not meet the definition of votive or tea light.” But Boston’s fire department “does allow the use of votive and tea lights in restaurants, banquet halls and similar function facilities without a permit or requiring a paid detail, provided they are used in compliance with [department] regulations,” the document says. Boston news reports show no record of restaurant or bar fires resulting from use of tea lights or votives.

It is that subsection of state law about “portable cooking equipment” that Cambridge’s License Commission and fire and police officials don’t just refer to in emails and during at least one visit to UpperWest, but rely on in asserting that the restaurant was asked to cease and desist in the use of candles. That order, relying on an irrelevant law, was never made in writing, according to documents in UpperWest’s active file at the commission and others shared with Cambridge Day.

“We have not received a cease and desist letter,” Courtney said in an Oct. 8 email to Mayor Marc McGovern. “The only letter that we received asked us to comply with an attached regulation that said we could not allow customers to cook at the tables with candles without a fire permit. We have never used candles for cooking at the tables.”

The city held a “task force” inspection of UpperWest two months earlier, on Aug. 3, according to fire department and Inspectional Services records. UpperWest showed no violations; but in referring to the use of candles, the Inspectional Services document says it is “to be determined whether or not that it is allowed”; a note at the bottom of the fire department document by Deputy Chief Peter Donovan says he told Courtney to put out her candles and she said no, saying “she believed them to be allowed.” Donovan said in his report that “I will supply supporting documentation that open flame candles are not allowed. Documentation to be emailed.”

“I got silence from them”

An email followed from Donovan on Aug. 6 that said “The Fire Prevention Bureau has not approved the use of candles” at UpperWest and referred the owners to an attached document – which referred to the state statute about “portable cooking equipment that is not flue-connected.” Candles are mentioned in a subsection, about how they would be permitted for use as portable cooking equipment.

Courtney noted this in her reply email Aug. 7: “Peter, I see nothing in the code that you attached that prohibits our use of candles.”

“I also note that this letter incorrectly states again that a request to ‘cease and desist was denied.’ As I stated previously, we had a discussion about what law prohibits candles, you were unable to refer to any such law, and then you left,” Courtney continued in a followup email. “It appears to date you are still unable to provide any law, regulation or code that prohibits restaurants in Cambridge from using candles.”

There was no reply, and on Aug. 16, she emailed Donovan again to note his lack of response.

She explained in an interview that the Aug. 16 email was sent because the department’s silence – with neither additional legal information nor an acknowledgement that there had been a mistake – made her “uncomfortable.”

“I got silence from them. Nothing for two months,” Courtney said. UpperWest heard nothing until fire officials came again Sept. 29, a busy Saturday night that was a full 57 days after their first visit.

Busy Saturday night

“It was a planned, calculated attack on our business. It was clearly planned. They waited the 45 days I had for my appeal rights and they came the very next weekend,” Courtney said. “I didn’t know I had appeal rights at the time, because normally you’d get a cease-and-desist notice and on the notice it tells you what your appeals rights are – how long you have and who you appeal to.” Though UpperWest’s cease-and-desist notice was verbal, according to fire officials, based on the information supplied to her, she had nothing to cease and desist on: UpperWest was not using candles for cooking.

“They knew I was confident candles were allowed, because every regulation they sent me didn’t say [otherwise],” Courtney said. “In my opinion, it was resolved.”

“If there is something somewhere that says [they’re illegal], they didn’t show it to us,” Dietrich said.

Donovan showed up at UpperWest at around 7:15 p.m. with the department’s Capt. Philip Arsenault and a police officer, Dan McGinty. After they told Courtney and Dietrich to put out the tea lights or the restaurant would be shut down for the night, the conversation moved outside the restaurant and Courtney and Dietrich began filming the encounter openly, using a phone. McGinty called in a superior, Sgt. William Bates. According to the fire and police reports from the night, and as shown in the video, the law enforcement officials cite repeatedly the law about “portable cooking equipment” as evidence the tea lights have to be extinguished, while Courtney and Dietrich reply repeatedly that their candles are not being used for cooking.

“In their minds, that sections means you’re not allowed to use candles. But clearly, when you read the section, that’s not what it says,” Dietrich said.

Showing no documentation

In the video, Courtney demands the fire officials cite a statute that shows her candles to be illegal and Donovan tells her “you don’t dictate how this works” and says of her need to see a law, “we agree to disagree.” He tells her he is issuing her another “verbal cease and desist” and shrugs off her reminder that the department had nearly 60 days to send a written order. When she points out that the law refers to candles being used as cooking equipment, he says “we’re not going to get into it.” Bates calls it “a difference of interpretation.”

McGinty’s report says the fire officials told him 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.”

The city has not produced documentation of support for the fire officials’ position from its Law Department.

This would not the first time the city has claimed to Courtney and Dietrich to have backing from the City Solicitor’s Office with no basis. In 2015, Board of Zoning Appeals chairman Constantine Alexander tried to stop Dietrich from recording a Nov. 5 meeting by saying the board could require a person to identify him or herself by name and home address before recording – citing advice from solicitor Nancy Glowa for the rule. Less than a week later Alexander had to acknowledge there was no such advice or rule.

Commission’s history with business owners

This is also not the first time Courtney and Dietrich have been on the receiving end of attention that is unusual and specific to them, with behavior from officials that may cross over into retaliation, if not a vendetta, for the partners’ outspokenness over the years about troublesome behavior at the License Commission. Courtney is lawyer on a legal complaint from a half-dozen of the city’s most recognizable names in food and entertainment saying they have been “deceived and defrauded” by Cambridge agencies and officials into spending hundreds of thousands of dollars unnecessarily on licensing, and in some cases have been forced into operating illegally.

Before opening at 1 Cedar St., North Cambridge, in late 2016, Courtney and Dietrich tried to open in Mid-Cambridge in 2014. But Steven Kapsalis, owner of The Cellar bar, at 991 Massachusetts Ave., told the commission publicly that he didn’t want competition, and the commission subsequently engaged in an aggressive questioning of the proposed business that included everything from its business name to where Courtney and Dietrich resided to the size of their preferred oven; commissioner Gerald Reardon, then the city’s fire chief, said explicitly that he couldn’t “see myself voting for an all-alcohol license at this location. You’ve got a lot of people around you that have paid a lot of money for these licenses, and it devaluates their license” – an admission that he wouldn’t allow competition for Kapsalis. (State records indicate that in fact Kapsalis did not pay “a lot” for his license, but was the first to be granted a liquor license after the lifting of a quota that obliged most aspiring restaurant owners to buy from a few defunct businesses.)

Courtney and Dietrich sought help from the City Council and city manager, but despite the city manager at the time acknowledging he had oversight of the commission, no public action was taken. The commission membership has turned over since that time, with the chairwoman then, Andrea Spears Jackson, resigning after less than two years of what was to be a three-year term.

A “non-physical” threat

While the commission’s Oct. 12 letter summons the UpperWest owners to appear for a state statute they haven’t violated, that isn’t the only contradictory charge in it. The letter also refers to “threatening/intimidating a witness” and “threatening public officials,” an apparent reference to Courtney telling fire and police officials – heard clearly toward the end of the video – “You guys are going to regret behaving this way, this is not how this works.” Although the conversation that night was heated, after Courtney says this there is a relatively congenial exchange of names, badge numbers and business cards, followed by Courtney saying “thanks.” Before leaving, one of the departing law enforcement officials says, “Okay, good luck with everything.”

In their reports filed Oct. 1, both fire officials misquote Courtney identically – as saying they would “live to regret this.”

But the comment seemed to make no impact on McGinty, the police officer, who doesn’t mention it in his report filed Sept. 29.

And in a report based on interviews with the fire officials by Officer Benny Szeto, who works with the commission, Szeto says of the comment that “Donovan took the threat to be non-physical but to make his life miserable by getting him in trouble or coming after his job” and that “Arsenault interpret[s] this as they were wrong for making her put out the candles.”

Szeto’s report is dated Oct. 12, the same day as the commission’s letter summoning Courtney and Dietrich to a violation hearing – which means the commission either wrote its summons without reading Szeto’s report; ignored law enforcement’s explanation that she was making a “non-physical” threat such as filing a complaint; or expects to take action against UpperWest regardless of its own officer’s explanation.