Business & Tech

Viva Handed Suspension, Probation for 2nd Liquor Violation in 2 Years

An hour-long hearing Monday night resulted in a unanimous decision by the Wayland Board of Selectmen.

Wayland selectmen unanimously settled on a punishment slightly less severe than that recommended by the Wayland Police chief Monday night during a liquor violation hearing for Viva Mexican Grill.

The restaurant will face a four-day liquor license suspension beginning Wednesday, July 3, and a two-year probation period beginning Tuesday, June 25. Any alcohol violations during the probation period will result in an automatic five-day suspension.

This was the second time in just over two years that Viva representatives appeared before the board for a violation hearing. The prior hearing took place on May 16, 2011, and referenced an alcohol compliance failure during undercover checks on April 19 of that year. For that violation, selectmen imposed a one-year probation period.

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This time, Viva was facing four violations: selling a drink to an underaged patron, violating the requirement to have a manager on duty when alcoholic beverages are sold, having employed servers lacking proper training and failing to maintain a roster of certificates for personnel trained to serve alcohol.

Monday, Viva owner Carlos Mendez called the second failure "ridiculous" and said he "sincerely regret[ed]" what had happened.

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"After the first incidence … I should not have promised [it wouldn't happen again] as we are humans and we make mistakes,” Mendez said, referencing an assurance he offered during the 2011 hearing. "It is very unfortunate that it happened again, and I work very, very, very hard that everybody should be compliant with my policy."

Becoming emotional, Mendez went on to explain that he has a difficult time keeping staff long term at his Wayland restaurant and that he hasn't had any violations in the 10-plus years he's operated his other restaurant in Cambridge.

"I don’t desire to be here in Wayland anymore," Mendez said. "I want to sell my restaurant as soon as possible. I have brought some wonderful culture to Wayland and it breaks my heart. It just falls through the cracks, it’s just one of those incidents."

Wayland Police Chief Robert Irving explained during the hearing that alcohol and tobacco compliance checks are conducted twice a year. During checks on May 21, Viva was the only establishment that failed of the 12 that were checked.

Wayland Police Det. Sgt. Jamie Berger, who oversees the checks, told selectmen during the hearing that for this particular alcohol compliance check, he sent two teenagers -- 18- and 19-year-old females -- into Viva with instructions to purchase a frozen margarita with salt.

"They carry nothing with them but the money I give them," Berger explained of the process, adding that they leave their IDs at the police station. "At no time are they told to lie or pretend they are older than they are."

On May 21, bartender Bryce Paolella was working at Viva when the underage customers came in. Paolella, who was present at Monday's hearing, said he engaged in small talk with the customers prior to their ordering.

Paolella said he was aware of the restaurant's policy to card everyone who appears to be under 35 years of age, and he realized he had failed to do so as he was preparing the margarita for the underage customer.

"In my opinion, based on not just her looks, but the discussion I had about the drink she was ordering, I would say she was about 28 plus or minus," Paolella said. "With the dialogue, I would assume that she was a mature young woman rather than an 18-year-old girl."

Paolella served a margarita to one of the women, and Berger received a text that they had been served, the sergeant explained.

When he entered Viva, Berger said, he saw a margarita in front of one of the underage customers and asked Paolella who was the manager in charge.

"'I guess I am,'" Berger said Paolella responded.

Paolella was unable to produce a list of servers trained to serve alcohol, though he told Berger that he was certified. It was later discovered, however, that Paolella had failed to complete his online training and was, therefore, not certified until later that night when he completed his training, according to documents produced by Viva's attorney John Harkavy.

Harkavy argued that the TIPS certificates for several of the restaurant's servers were posted in the foyer and Berger should have noticed them even if Paolella couldn't produce them. He further argued that Sergio Mendez, the restaurant owner's brother, was in the restaurant at the time of the checks and was the manager on duty.

The attorney agreed that alcohol was served to an underage individual the night of the checks, but argued that multiple violations weren't committed as there was a manager on duty and the roster of certified servers was available even if Paolella failed to produce it. Additionally, Paolella believed he had completed his certification.

Paolella told Patch following the hearing that he felt he was "entrapped."

Because this was a second violation, Irving recommended a five-day suspension, and Harkavy recommended just one day.

"We value your business … you also have a responsibility," Selectman Joe Nolan told Mendez. "Here I see up to four violations of a policy that you knew. It’s a disappointment … but a substantive punishment is warranted in my opinion."

Nolan went on to say that he wanted to be consistent with similar punishments the board has imposed.

"I would be inclined to support a three-day suspension instead of a five," Nolan said.

The board appeared to be split on the number of days to suspend the license and ultimately, Nolan amended his motion to four days. That motion was approved unanimously.

Mendez told selectmen that he has already adjusted his policy to require that servers card everyone ordering an alcoholic beverage.

"Right now, everybody is carded," Mendez said, adding that restaurant-wide training was conducted earlier this month. "If you’re 90 years old, you’re carded."


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