County Superior Court
Plaintiff: Richard Warren Nicholson, Esq.; John B. Harwood,
Esq.; David S. Francazio, Esq.
Defendant: Paul V. Sullivan, Esq.; Louis DeSimone, Jr., Esq.
Beats, Inc. (Happy Beats), D2D Entertainment, LLC (D2D), and
Gerard DiSanto II (Mr. DiSanto) (collectively Plaintiffs)
have moved for a preliminary injunction to which the
Providence Board of Licenses (the Board) and Providence City
Councilwoman Sabina Matos (Matos) (jointly Defendants) have
objected. Also, pursuant to Super. R. Civ. P. 12(b)(1), the
Board filed a Motion to Dismiss Plaintiffs' Verified
Complaint for lack of subject matter jurisdiction.
January 2014, Happy Beats opened "Club Therapy, "
an after-hours music club at 62 Dike Street in Providence,
Rhode Island. In August of 2016, Equity Beats, Inc., a
corporation controlled by Mr. DiSanto, acquired the stock of
Happy Beats. Contemporaneously, Mr. DiSanto also organized
D2D, a management company which schedules nationally known
disc jockeys and attracts a regional customer base. In
October 2016, Happy Beats, under the new ownership, changed
its operating name and the club name to Dusk 2 Dawn. Mr.
DiSanto made substantial improvements to the Dike Street
property, apparently investing over a million dollars on
upgrading the building's soundproofing, lighting, and
Beats is the holder of a 1:00 a.m. to 4:00 a.m. after hours
license and an entertainment license (the Happy Beats
Entertainment License), both issued by the Board. However,
Happy Beats does not have a liquor license for the premises
and has never received approval from the Board to permit the
sale of liquor at this location. In fact, the physical
location of the premises does not qualify for the issuance of
a liquor license under G. L. 1956 § 3-7-19(a), which
prohibits the issuance of a liquor license within two hundred
feet of a church.
result of this restriction, the sale of liquor on the
Plaintiffs' premises has been accomplished through the
use of a caterer, M & M Food Service d/b/a Millonzi Fine
Catering (Millonzi Catering). Millonzi Catering, not a party
to the instant action, holds a state-issued Class P
caterer's license (the Millonzi Class P License). A Class
P caterer's license allows caterers to serve alcohol,
subject to certain restrictions, such as limiting alcohol
service at events to five hours and prohibiting service of
shots or triple-strength drinks. Sec. 3-7-14.2(a)(5), (8).
The statute relevant to a Class P caterer's license
"[a] caterer licensed by the department of health and
the division of taxation shall be eligible to apply for a
Class P license from the department of business regulation.
The department of business regulation is authorized to issue
all caterers' licenses. The license will be valid
throughout this state as a state license and no further
license will be required or tax imposed by any city or town
upon this alcoholic beverage privilege." Sec.
November 10, 2016, Happy Beats and Mr. DiSanto appeared
before the Board for a discussion and review of the Happy
Beats Entertainment License. At this hearing, it was
suggested that Happy Beats was simply exploiting an "end
around" to getting a proper liquor license. (Pls.'
Ex. 3, Tr. 12:16-24.) After considerable debate, the Board
determined that it could "condition the license so that
the licensee operates responsibly." Id. at
44:16-17. In seeking to effectuate this objective, the Board
imposed a condition on the Happy Beats Entertainment License
whereby "liquor will be served only to 1:00 a.m."
Id. at 63:20-24.
Catering subsequently filed an appeal of the Board's
decision with the Director of the Department of Business
Regulation (DBR). The DBR, per an order by Hearing Officer
Catherine R. Warren dated November 18, 2016, stated that
"the Board does not have the authority to limit a Class
P license as that is within the purview of the [DBR]."
M&M Food Service, LLC d/b/a Millonzi Fine Catering v.
City of Providence, Board of Licenses, DBR Order No.
16LQ (Nov. 18, 2016). The order further stated that "any
action against the Class P license is beyond the authority of
the Board so any such action taken by the Board is
stayed." Id. However, the order also noted that
"[t]o the extent that the Board restricted the late
night license to no service of alcohol after 1:00 a.m., the
Department has no authority to hear such a claim and
[Millonzi Catering] is not that licenseholder."
Id. The DBR also declined to rule on the issue of
how late a caterer can serve alcohol, finding that such a
ruling was unnecessary to the instant appeal. Id.
January 13, 2017, Plaintiffs then filed the instant six-count
Verified Complaint. Counts I and II are against Matos alone,
alleging defamation and false light, respectively. Count III
seeks a declaration that the actions of the Board were in
excess of the Board's authority. Counts IV through VI are
against all Defendants. Specifically, Count IV alleges due
process violations, Count V alleges interference with
expected business advantage, and Count VI alleges violations
of the Open Meetings Act. Matos has two counterclaims-one
under the SLAPP statute and one alleging abuse of process.
Currently before the Court is Plaintiffs' Motion for
Preliminary Injunction and Defendants' Motion to Dismiss
the Verified Complaint for lack of subject matter
18, 2017, this Court held a hearing on the Board's Motion
to Dismiss Plaintiffs' Verified Complaint and reserved
judgment. Subsequently, hearings on Plaintiffs' Motion
for Preliminary Injunction were held before this Court on
June 19, 2017, June 26, 2017, October 3, 2017 and October 10,
2017, with argument on November 7, 2017.
pertinent testimony can be summarized as follows.
Public Safety Commissioner Steven Pare (Commissioner Pare)
testified at the hearing in this case that he met with Mr.
DiSanto prior to the opening of Dusk 2 Dawn. The Commissioner
testified that he specifically asked Mr. DiSanto how he
planned to make any money without selling alcohol and that
Mr. DiSanto made no mention of any plans to use Millonzi
Catering to effectuate the sale of alcohol at Dusk 2 Dawn.
Commissioner Pare testified that he believed there would be
no sale of alcohol on the premises and that he was livid upon
learning that alcohol was being sold at the Dike Street
premises. Commissioner Pare also testified that there had
been no incidents at Dusk 2 Dawn and that there were no
public safety concerns involving the club since the change in
ownership had taken place.
Baraducci (Mr. Baraducci), a former Providence Police
officer, manages security at Dusk 2 Dawn. Mr. Baraducci
testified regarding the improved security measures that Mr.
DiSanto implemented in order to alleviate public safety
concerns at Dusk 2 Dawn. These security efforts included more
cameras, police details, more lighting in the area, valet
parking, and a van patrolling the area. Captain Dean Isabella
(Captain Isabella) of the Providence Police Department
testified that he was familiar with Club Therapy and that
liquor was frequently served there. However, Captain Isabella
was uncertain of whether or not alcohol service at Club
Therapy typically ceased at 1:00 a.m. or 2:00 a.m. each
night. Justin Dupont (Mr. Dupont), a disc jockey at both Dusk
2 Dawn and its predecessor Club Therapy, testified that he
had seen alcohol service until 2:00 a.m. at both clubs. He
also testified to having observed improved security measures
at Dusk 2 Dawn after the change in ownership occurred.
of Review ...