The Select Board on Tuesday received answers from town counsel to questions members had at its last meeting regarding an updated common victualer license policy it has been working on for the past several months.

Attorney Kayla Venckauskas of Mead, Talerman & Costa first gave the board an overview of the Criminal Offender Record Information (CORI) process. This background check is required of CV applicants. She pointed out that the town has “standard-level access” to CORI information.

“This means that there’s certain information that the town can and cannot see,”  explained Venckauskas. The town’s access is limited to crimes in Massachusetts.

Standard-level access shows if the offense noted is “a murder, manslaughter or sex offense and the disposition is a conviction,” according to Venckauskas. For misdemeanors with a conviction, the town could access the disposition date or incarceration release date if it is less than five years prior to the CORI request date.

The town also would have access if an offense is a felony, the disposition is a conviction and the disposition date or incarceration release date is less than 10 years prior to the CORI request date. In that case, Venckauskas said, “the system will return that offense and all other convicted offenses, and it will also return pending offenses.”

“If someone took a plea deal, what the town would see is the lesser offense,” she added.

The search will not show if someone was arrested or accused without an arrest, she continued. It also will not reveal if a person is the subject of an active investigation by police or the district attorney’s office.

Civil fingerprinting issue raised

Venckauskas noted that the May 2 Annual Town Meeting voted to take no action on an article that would have required civil fingerprinting for CV licenses.

Because the town does not have the authority to fingerprint CV applicants, this means that “there is no other legal mechanism to do so,” Venckauskas said.

She added: “The only way to do a nationwide CORI check is through fingerprinting.”

This issue was heavily discussed by the Select Board as it debated whether it was overstepping its bounds by requiring civil fingerprinting. It raised the issue of public safety versus an applicant’s civil liberties.

Police information sharing limited

“Generally, the police department cannot share criminal justice information which is not publicly available or which would not come through on a permissible background check,” Venckauskas noted.

Police can bring concerns to the Select Board “[i]f they have legitimate and articulable concerns related to the business operations or the applicant’s suitability to run a common vic business,” she added.

“But the board will need to articulate why and how whatever has been brought to them has been lawfully brought to them,” Venckauskas stressed, “and how this makes an applicant unsuitable to hold a common vic license.”

Sex offender info not always available

Regarding Sex Offender Registry Information (SORI) checks, Venckauskas said information is not available for Level 1 sex offenders. According to the state website, Level 1 sex offenders “have a low risk of re-offending” and “pose a low degree of danger to the public.”

The SORI check will only show a CV applicant’s current status. If a Level 1 sex offender previously was registered as a sex offender, “that will not come up,” said Venckauskas.

Use in decision process limited

Venckauskas said a licensing authority “generally cannot use a permanent criminal record or sex offender registration as an automatic reason to deny a license.” But it can be used in an evaluation process to determine whether the applicant “is suitable for the specific license or activity involved” or if the applicant poses a public safety risk.

The board can impose “reasonable conditions” on a licensee. They must be related to business operations and “tied to public health, safety or welfare,” Venckauskas said. While the licensing authority generally has wide latitude, the conditions imposed cannot be so restrictive that they would change the class of license for which the applicant must apply.

“What I would add is that conditions may be susceptible to challenge if they are overly broad, arbitrary or if they conflict with state anti-discrimination laws or are unrelated to the operation of the establishment,” she said.

The board could consider placing a restriction on licensees that would allow it to initiate suspension or license revocation proceedings in the event of misconduct.

Venckauskas recommended denial of a CV license if the person has close proximity to minors because condition enforcement would be difficult.

CV policy ‘might become a model’

Board member Joe Clark thanked Venckauskas for the “extremely thorough presentation.” He requested that she send a copy to the board because of the amount of legal information to digest.

“As we’ve seen, there’s a real need to get this right,” he said.

Clark asked that town counsel also analyze new recommendations received by board members. He also sought recommendations on enforcement of violations.

Member Matthew Kizner said the policy should have some flexibility.

“[C]ertain violations or certain exceptions always come before the board,” he noted.

Attorney Jason Talerman noted that this policy is unique in that there is no case history regarding CV license litigation on which to base recommendations.

“I’ve been representing cities and towns for 30 years,” he said, “and the common victualer license process doesn’t get this kind of scrutiny.”

Added Talerman: “I would hope that we might become a model for what other towns may want to see.”