No More Roadside Bar
A jury in East Hampton Town Justice Court on Friday found the corporation run by Cyril Fitzsimons, the namesake of Cyril’s Fish House, guilty of 45 misdemeanors related to the illegal expansion of the popular roadside Napeague bar and restaurant.
Each charge is punishable by a fine of up to $1,000.
The charges, which were brought in March 2014 by the town’s code enforcement bureau, involved a brick patio, roadside bar, and front awning, as well as several other structures on the property. Before the four-day trial began on May 3, the town’s attorney’s office agreed to a stipulation with the owners of the land itself, Michael Dioguardi, Debra Laikind Dioguardi, and Robert Dioguardi, co-defendants with Mr. Fitzsimons, in which they agreed to dismantle the violating structures.
By Monday, the site was being transformed. A stockade fence had been erected separating the establishment from Montauk Highway, as per the agreement with the town, and a large dumpster was already filled with pieces of the offending structures. According to Michael Sendlenski, the East Hampton Town attorney for the town, the two sides agreed that permits for demolition of the various structures would be issued retroactively once the East Hampton Town Planning Board approves the overall site plan.
According to a memo to that board by Eric Schantz, a senior planner for the town, a complete site plan, along with an updated survey, was to be ready for the planning board’s meeting last night. In his memo to the board, Mr. Schantz described some small adjustments the applicants have made in the site plan. A new bar on the west side of the building, which replaces the iconic roadside bar, has been expanded from 10 feet long to 14 feet. Also, Mr. Schantz said, between the stockade fence that now faces the highway and the building itself there will be a fixed seating area with 20 chairs. This change will not alter the total number of seats on the premises, which is limited to 62, nor the establishment’s total capacity, which is capped at 150, including employees, at any one time.
“There is going to be an appeal,” said John T. Powers Jr., Mr. Fitzsimons’s attorney, about the guilty verdict turned in by the three-man, three-woman jury on Friday. He said that Mr. Fitzsimons’s corporation Clan-Fitz was offered a deal before the trial similar to the one brokered by Christopher Kelley, the legal representative for the landowners. The landowners’ deal included payment of a $60,000 fine, as well as an agreement to adjourn the case against the Dioguardis, contemplating dismissal after six months.
Mr. Powers said the stipulation offered by the town attorney’s office was “unconscionable.” As an example, he cited one clause in the proposed stipulation under which Clan-Fitz would be fined $100 per person for every person over a total of 150 people, the establishment’s legal occupancy, at any time. In addition, he said, the corporation would be fined $100 each time an individual was found with a beverage or food outside of a new, 900-square-foot outdoor serving area. He gave as an example a patron who arrives by car and gets out of the vehicle holding a bottle of water. Under the stipulation, he said, that bottle of water could be classified as a beverage, incurring a $100 fine.
The stipulations, “together with the 45 convictions by the jurors, validated the town’s commitment to enforcing our public safety and zoning laws. We are serious about code enforcement,” East Hampton Town Supervisor Larry Cantwell said after the trial. While Mr. Fitzsimons, as a member of the corporation Clan-Fitz, founded in 1990, cannot be sentenced to jail as a result of the criminal convictions, he could be in jeopardy of losing his liquor license, according to William Crowley, director of public and legislative affairs for the New York State Liquor Authority. Mr. Crowley said last month that even one misdemeanor conviction of operating without a certificate of occupancy could trigger a reconsideration of the temporary license issued to Clan-Fitz earlier this year. Clan-Fitz was found guilty of 12 counts of lacking appropriate occupancy certificates, covering 12 structures on the property. The authority permanently revoked the establishment’s license in 2014, but that action is on appeal and has been stayed.
The jury found Clan-Fitz not guilty of two charges: failing to get approval from the town’s architectural review board before putting up two stockade fences on the half-acre property.
A key moment during the jurors’ deliberations came when they received a read-back of testimony from Scott Rodriguez, the code enforcement officer who visited the site on March 17, 2014, and upon whose observations most of the charges were based. “The attorney for the defense had said there was no hard file,” the jury’s forewoman, Joyce Marino, said after the trial ended. However, when the testimony was read back, it was revealed that Mr. Rodriguez had compared the computer printout from the Building Department to what was in the hard file itself.
Mr. Powers had tried to argue during his final summation that the records of the town were murky and could easily be lost in a bureaucracy. It was an argument that the jurors bought, but only to an extent. The question confronting the jurors, Ms. Marino said, was “could we trust what was written on the land file,” the property’s printed history of the town’s various agencies’ interactions with the site over the years.
“Our main issue was accuracy,” said Mary-Anne Mango, another juror. Jurors were open to the argument that a permit or two could have fallen through the cracks. “But 47 times?” she asked.
Joseph Prokop, a special counsel to the town who has been handling the case for the past four years, was clearly happy as he left the courthouse, but would not comment on the record. Also prosecuting the case with Mr. Prokop for the town was NancyLynn Thiele. Joining Mr. Powers, who specializes in criminal matters, for the defense was Harold A. Steuerwald, who specializes in zoning and land use law.