Culturefix Lawyer: Something Stinks on the LES

On Friday afternoon, defense attorney Kevin O’Donoghue rose to his feet in closing arguments, telling a state Supreme Court judge, “something stinks on the Lower East Side and (referencing a recent New York Magazine story on the city’s smelliest block) it’s not just Allen Street.” The judge, Martin Schoenfeld (who happens to be a LES resident), corrected him, explaining that Broome Street, west of Allen, was actually the focus of the magazine expose.  But the judge did offer O’Donoghue’s client, Clinton Street nightlife establishment Culturefix, something else — a glimmer of hope in future battles with the NYPD and Community Board 3.

In his ruling, Schoenfeld found the one-year old bar, restaurant and arts space was guilty of serving underage auxiliary officers alcohol during undercover operations earlier this year. As a result, Culturefix is now under court order to follow the state’s Alcohol Beverage Control Law to the letter, to beef up security and to reimburse the city for its expenses in bringing the case to trial.

The judge said the law was clearly in the city’s favor, but added a personal opinion — that the statute “should be changed” and that the NYPD’s approach to dealing with nightlife issues might not be “the best use of the city’s resources.” Schoenfeld asserted, “there’s some sort of struggle going on which I personally don’t like,” suggesting that community concerns about nightlife might be better addressed through a heavy police presence on the steet, rather than undercover operations inside bars.

Like many other LES nightlife operators, Culturefix’s Cole Schaffer and Ari Stern found themselves in the crosshairs of the 7th Precinct. But unlike other bar owners they declined to settle with the NYPD. Rather than agreeing to a range of operating conditions and steep fines, they decided to take their chances at trial.  O’Donoghue, a partner in the law firm Helbraun & Levey LLP, said he was “glad we went to trial,” in part because the judge chose not to impose fines (which could have totaled $38,000) against Culturefix and also because it was ‘a good test case” of a policy he sees as unjust.

In court on Friday, O’Donoghue argued that Culturefix is not a “public nuisance,” as the city alleged.  He said the police department should not be conducting “sting operations” in bars by undercover agents “trained to deceive” bartenders if there’s no evidence underage drinking is going on. “No community members were being affected,” he asserted, adding that the 7th Precinct decided unjustly to “embark on a scheme” targeting the restaurant industry, which he said “makes this city run.”

Culturefix’s problems began shortly after the business opened last summer. Responding to 311 noise complaints from neighbors, Community Board 3 asked the precinct to look into the situation.  They were also concerned about an event listing on the bar’s web site advertising a dance party (there was no dancing going on when police investigated).

In an interview yesterday, Schaffer said the 311 complaints all came from one woman and her roommates, residents of an apartment that shares a wall with Culturefix.  For about two months, the bar was unable to determine who was complaining, Schaffer said, so it was impossible to deal with the issue. Once they identified the apartment being affected, Culturefix spent many thouands of dollars on soundproofing, he explained (incidentally the woman is still complaining about noise issues).

As for the underage drinking incidents, Schaffer argued he and his partners take them very seriously. ““Once we were notified of this issue we reacted in full force, he said. “We have a very strict door policy now. We have a strict carding policy at the bar now and the minute we found out about these things it was absolutely disturbing for us because we understood we could be closed for this.”

Asked if Captain David Miller, who’s overseeing the nightlife crackdown,  had alerted Culturefix to problems before the undercover operations began,  Schaffer said:

Absolutely not, and that’s the most frustrating point. That is why I don’t believe the captain has the community’s best interests in mind… He gave me a 60 page document describing how he’s attempting to shut my business down and/or give it fines so it would have to close and sending it off to the State Liquor Authority (which has imposed a $10,000 fine).

Schaffer also expanded on a point his attorney alluded to on Friday — that there’s supposedly an all-too-cozy relationship between the 7th Precinct and Community Board 3:

There’s a close connection between the policy of the community board and the actions taken by the police. Something is odd about the timing of Captain Miller coming to the 7th Precinct and the spike in (bar closings)… I think the community board has in some way encouraged the transfer of Captain Miller to the 7th Precinct because they were aware that he would carry out this policy. I think the community board has somehow unjustly convinced the precinct that my business is conducting a general policy of illegal activity… Yes something stinks on the Lower East Side in that this policy to ‘protect the community’ seems to be a facade that is really just a budget gap shrinker and a way for the community board to get one less bar in the neighborhood.

Culturefix and Community Board 3 have been at odds since the business first came before the SLA Committee in the spring of last year.  Alex Militano, the panel’s chair, expressed doubts that Schaffer and Stern really intended to create a “cultural space,” as they outlined for the committee. A beer/wine license in hand, she feared, the business would morph into a straight-up bar, offering no “community benefit” in a section of the neighborhood already bursting with drinking establishments.  The owners chose to withdraw their application and ultimately prevailed without the community board’s support.

In its quest to renew the wine/beer license, Culturefix was back before CB3 last week. The committee voted “no,” citing the underage drinking violations, noise complaints and the bar’s decisioon to circumvent the community board last year.  In our interview, Shaffer said he sees things differently. Why must CB3 paint all bar owners with such a broad brush, he asked:

Hey community board why don’t you come look at my business?  Why don’t you come down and see what I do? You said we’d turn into a night club and we would never offer any kind of programming. Here’s a year later and, I didn’t sign any of your documents, and we have children’s workshops during the daytime, we have non-profit organizations… who use the space…  It’s demoralizing to have a community (board) tell me what my business is doing that is so false.

In the past, Militano and other community board members have argued they’ve been burned too many times by nightlife operators who either misrepresented their intentions or who changed their business model when times got tough.  As for the precinct, Captain Miller has said he is simply responding to  persistent and widespread complaints about nightlife problems.  He has also indicated that bar owners have been briefed repeatedly about the precinct’s expectations of them when it comes to security, crowd control and underage drinking violations.

In the next few days, the city will detail for the judge what it cost to prosecute the Culturefix case.  While the figure could be substantial, O’Donoghue said he can’t imagine Schoenfeld ordering his clients to pay more than a few hundred dollars.  And what’s ahead?

O’Donoghue said he’s interested in meeting with Lower East Side bar owners to find out whether a coordinated legal and/or political offensive should be launched to counter the NYPD crackdown. Shaffer believes the time has come for a loosely organized bar owners’ association to join forces in a more deliberate way.

Meanwhile, at least one of Culturefix’s battles might have ended.  A check of the SLA web site this afternoon indicates the bar’s license has been renewed.