BOS uses bad data to convict Makaha of overserving

I have spent much of the last few days researching the Makaha restaurant liquor license revocation and have discovered something very startling. But before I get into the specifics, a few points.

First, the Acton Board of Selectmen (BoS) will be having a meeting this Monday, Jan. 26, 2015, and on the agenda is consideration of a temporary reinstatement of the Makaha liquor license until May, when the ABCC (Alcohol and Beverage Control Commission) has scheduled its appeal hearing. Coincidentally, Po's Barbecue Restaurant is also on the agenda that evening for an "overserving" violation. If you go to the town's website and click on the documents link, you can read the agenda and supporting materials for both issues (Or click here: http://doc.acton-ma.gov/dsweb/View/Collection-6637).

Second, while the BoS clearly made a very grave mistake in the whole Makaha saga, we should remember that all of the Selectmen are volunteers who are trying to do the right thing. That of course doesn't excuse their actions, but we should keep the arguments focused on changing the outcome, and not assume the Selectmen are motivated by anything other than trying to keep Acton's streets safer.

THREE APPEARANCES IN LESS THAN A YEAR

I'd say the strongest argument for voting to revoke, rather than suspend, the license is that the Makaha has had three "incidents" recently, which have brought the restaurant in front of the BoS.

While the number of incidents is not proof of guilt, I heard repeatedly from the Selectmen and the police that this history is very troubling. Comments like "This is becoming much more frequent than it should be," to "I'm upset you are back here before us," to 'this is the third time you are here for overserving' which was mentioned by multiple people.

But what if the pattern was not a pattern of overserving?

In the first hearing, May 5th, the police were called (by the restaurant) for a patron acting belligerently. An off-duty state police officer testified that something was unique about the situation, and he later said that there may have been some type of medication that reacted with the alcohol. While the patron in question was drinking, it was not proven he was overserved and the BoS did not vote that an overservice violation occurred. So the first hearing is not part of any pattern.

In the second hearing, July 28, there was an allegation of overserving and the BoS voted 5-0 that an overserving violation had occurred. My research shows this conclusion to be wrong as detailed below.

The BoS vote was based on evidence that was faulty or misread. Repeatedly during the hearing, every single member of the BoS agreed that serving four drinks over two hours was, by definition, an overserving violation. You can watch the hearing on Acton TV (all times are based on the time remaining during the meeting on their video).

At 2:12:54, BoS Chair Mike Gowing said "Four drinks in two hours is above what TIPS recommends, especially without any food, so you are already driving down the road of violation when you serve like that."

Selectman Janet Adachi later said (2:10:00), "Two, I am concerned about whatever happened, 8 - 9:30, doesn't matter because before then, between 6 and 8...there were too many drinks served to the two men, at least in my view and under the TIPS standards."

Selectman Katie Green (2:07:25), "I'm extremely disappointed that you guys are back here, and back here in such a short time span.

"Regardless of what exactly happened...these people were overserved according to TIPS procedures, and it particularly bothers me that if your staff was just re-trained on TIPS and this happened, and on a slow night when you'd think it would be easier...that's even more concerning to me.

"The alcohol they were served here, whether they had more later or earlier, contributed to a person blowing a .13 10 hours later. That person was extraordinarily intoxicated and your restaurant played a part in that," Green said.

Then the key question was asked by Selectman Berry (2:04:47): "What is the TIPS recommendation for the number of drinks served per hour?"

Selectman Gowing, who had originally said that four drinks in two hours was over the TIPS recommendations, did equivocate on this direct question. "There are several factors," he said. "Physical size, served with food versus served by itself...and I don't believe either one of these gentlemen are particularly large, they are average-sized, so because it's a body-density issue, how much your body can process. Three "headhunters" means it's hard liquor and then a beer mixed with it means it's the road to nowhere."

Selectman Fran Osman then tried to clarify who caused the intoxication (1:52:20): "I have a comment in support of Makaha. We really don't know why this man was so inebriated the next morning...from what he drank at Makaha, I don't see evidence that that's the cause of the extreme inebriation, but I see evidence of overserving."

Gowing: "But this was contributing."

Osman: "Yes"

Green: "We can assume that four alcoholic beverages contributed to that."

Gowing: "Even if he went and drank on his own, before or after, this was a contributing part to it."

Now, "contributing" to someone being intoxicated is clearly no crime, so I think the Board incorrectly assumed that if someone was intoxicated on the street and they had been drinking at a local bar or restaurant, then the bar or restaurant has committed a violation. If that is the case, then we might as well shut down every bar and restaurant and liquor store in the town.

FOUR DRINKS IN TWO HOURS--PROOF OF OVERSERVICE?

But I want to focus on this notion that serving four drinks in two hours is a violation of TIPS training, because that was suggested by Selectman Gowing, and then it was picked up by every other Selectman, and then they voted 5-0 that an overserving violation had occurred.

For example, Gowing said (2:00:35): "I'm a little stronger on it for one, as to Katie's point, if they just came off TIPS certification, this is outside TIPS [training]. To me, that's evidence to stand here and say 'yes, I'll do what you want,' then go back and do whatever works for you."

Gowing goes on to say he would prefer to revoke the liquor license because of the history of problems.

Berry summed up his reasoning using similar language: "As I understand the motion, there are two findings. One is that they were overserved beyond the TIPS requirements while they were there..."

At one point, Berry makes his point this way: "There is evidence that even if they were there from 6-8, they should not have been served the number of drinks they were served, that seems to be uncontroverted fact."

The key issue then is to find the reference used by Gowing and then relied on by the entire Board that serving a certain number of drinks in a certain timeframe can be a violation of TIPS, specifically four drinks in two hours.

So I did some research. It is hard to find "TIPS" training online, because companies charge money to people to take the training, but I did find one manual, which is here: http://www.armymwr.org/UserFiles/file/Business_Ops/ServeSafe%20Alcohol%2....

The manual never says that a certain number of drinks is a violation. Not even close.

Instead, it says there are many factors involved, but the most important thing is for the serving staff to be alert and look for any signs of trouble. Then cut off service, take away drinks, arrange transportation, and call the police if necessary. I found several other websites (not TIPS sites) that reiterated the same advice.

So where did Gowing get his information from, and why did the Board of Selectmen rely on this (bad) information in order to convict the Makaha back in July? I contacted Gowing to find out.

Incredibly, Gowing said that he got what he thought were the TIPS serving recommendations from Mr. Cheng, the owner of the Makaha.

I had previously asked Cheng if he had a copy of his TIPS information, and he said no, he and his staff took the course online. So I went back to Cheng and asked for any copies of information that he may have handed out to the BoS. At first, Cheng didn't think he had given them anything, but then he remembered that he did give them a BAC (blood-alcohol concentration) chart which he found on the Internet. He sent me the link to the chart which is here: http://www.brad21.org/bac_charts.html.

Unfortunately for Mr. Cheng and the Acton Board of Selectmen, the chart he gave them was not from TIPS training but was created by an independent website. This website is operated by parents of a young man who died at age 21 of alcohol poisoning. Needless to say, the chart was misleading and was misread by Acton Selectmen in making their decision to convict Cheng.

The chart did show that four drinks in two hours was at the limit of .08 BAC, which is intoxicated for driving. But the note on the bottom of the chart says you must deduct the time of drinking, and of course the chart is just an estimate. So I can understand people misreading it, but it is surprising the BoS would have assumed this was TIPS information. No one questioned the source of the data, but everyone appeared to rely on it for their vote to find an overserving violation had occurred.

The chart referenced a website from where they got their data, which I went to and found the most recent BAC link. Here it is: http://www.alcohol.vt.edu/Students/Party_positive/estimating_bloog_alcoh....

This website, from Virginia Tech, does describe how to estimate BAC levels, and it is based on a number of factors like weight, number of drinks, strength of drinks, and importantly, time. In that, it is consistent with TIPS.

The BoS, in reading the chart that was handed out, did not subtract the body's processing of alcohol over time when they concluded that "four drinks in two hours is overserving." According to the current website, four drinks in two hours would result in a BAC level of .034, less than half the drunk-driving limit.

This is why the server's judgment is so important, because when someone goes into a bar, you can't know what they've been drinking before. So when someone shows signs of intoxication, you need to cut them off and take action as described above. There is no simple answer about how many drinks you can serve someone--other than not serving someone who is visibly intoxicated.

Clearly, serving someone 10 drinks would result in intoxication for anyone. But four drinks can be handled by most patrons and is not evidence in and of itself of overserving. And clearly bars and restaurants cannot be liable for what their patrons drink after they leave. Some patrons go to bars with "designated drivers" so they can drink without fear of breaking the law, which is driving above a .08 reading. In those situations, bars and restaurants still cannot serve someone who is "visibly intoxicated."

So based on our review and analysis, Mr. Cheng followed the TIPS training to the letter during the November incident, did not legally overserve, and called the police when there was a problem. Cheng handled the situation exactly as his training dictated. For this, the Makaha restaurant should not have had its license revoked.

Furthermore, there is no pattern of violations because the July hearing was not a case of overservice and the May hearing did not reach a finding of overservice.

The Makaha liquor license should be reinstated immediately, and the town should reimburse Mr. Cheng for all his out-of-pocked expenses, attorneys' fees, and lost revenue during the time his license was wrongly revoked.

This series continues here: http://www.actonforum.com/blogs/allenn/lessons-makaha

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