John Herbert owns the 315 Dalton Ave. building where the former Chinese restaurant operated for more than 30 years before closing earlier this year.
Michael McCarthy, attorney for Herbert, said that under the lease agreement, if the tenants left with money still owed to the owner, the license was to be offered back to Herbert.
"They owed over $50,000," said McCarthy, who said the sheriff's department had already revoked the license from the tenant under these terms. Herbert was also awarded a judgement of $51,000 by Berkshire Superior Court, under the terms of which the defendant cannot transfer the license to any party other than the plaintiff, Herbert.
"We need to get this license to be productive again, so that my client who owns this building that's been in mothballs for a while, while we've dealt with this, can get back online and going," he said.
McCarthy said it was unlikely that Herbert would seek to open an establishment with the license personally, but will seek to transfer it again when a suitable tenant is found for the premises, which he purchased in 1972. Two prior restaurants operated there under his tenure before it became part of the Debbie Wong chain of restaurants in 1981. Under that name, the restaurant had at least two owners before being sold to final owner Lie Hua Xie in 2006. At that time it left the chain, but under agreement was allowed to use the name for two more years, but despite orders from the company to desist, continued to be called Debbie Wong until it closed in March — with a considerable amount of unpaid rent.
Board member Thomas Campoli questioned the legality of the board transferring the license, suggesting that it might need to be put up for auction under state law.
"Where there's an execution, and it's levied on, it requires a publication and a sale," said Campoli, speaking of the state Alcoholic Beverages Control Commission strictures governing such situations.
"Any auction would be a sham," said McCarthy in disagreement with this interpretation. "If there's an auction, the license ends up in somebody else's hands and if it's not Mr. Herbert, it violates the judgement of the superior court.
"Only if the defendants made the transfer," argued board member Dana Doyle. "It's being held currently by the sheriff."
In consideration of the board's concerns, McCarthy suggested it could conditionally approve the transfer to his client pending review by the ABCC of its concerns on this point, which he would highlight in a letter accompanying the application.
"We'll do whatever we have to do to please the licensing authority here, and in Boston, to make sure this is a clean transfer," McCarthy told the board.
The board approved the compromise, voting unanimously to allow the transfer if the disposition is approved by the ABCC.
In other business, the board on Monday also voted favorably on previously controversial license changes to a liquor license to be used by hotel developer Vijay Mahida for a planned 95-room Hilton Gardens hotel. Mahida's proposal to convert the liquor license formerly attached to Club Groove on Wendell Avenue Extension to an innkeeper's license for the four-story hotel was challenged two months ago by attorney John Gobel, representing owners of Pittsfield's Comfort Inn, located near the Route 7 site where the new hotel is to be constructed.
The challenge had come out of a three-way dispute by local lodging interests that has spanned across courtrooms and several local committees, with challenges both from the Desai family that owns the Comfort Inn as well as Eastern States Real Estate Management, an entity tied to Toole Lodging Group, whose own plan to erect a 92-room Courtyard Marriot was stalled when the state Department of Environmental Protection overturned a city-issued wetlands permit.
In October, the Desai hotel interests had asked that the liquor license change be tabled while awaiting a decision on a separate challenge they'd made to the project's building permit. Late last month, the Zoning Board of Appeals upheld the permit, and representatives for the Comfort Inn were not present to offer challenge to the alcohol license on Monday.
Plans had initially called for the $8.1 million hotel, to be constructed behind Guido's Fresh Marketplace in the city's southernmost corridor, to open this coming spring, following a groundbreaking last May. It has not been made clear how the months of delays will impact the hotel's construction schedule.