Government abuse alive and well in Acton

The Makaha restaurant can’t catch a break in the town of Acton.

The Board of Selectmen (BOS) will be conducting yet another spurious hearing on the Makaha liquor license for an incident that happened last April, when a driver was pulled over and failed a field-sobriety test. The driver claims he was drinking at the Makaha from 7 to 9 pm and had four beers, according to the police report (he was pulled over at 8:30 pm, so something immediately doesn’t add up in that story.) The hearing will happen this Monday night, July 20, 2015, at Acton Town Hall during the regular BOS meeting.

So after having their license suspended in error and suffering significant economic harm, the Makaha continues to be harassed by our local Board of Selectmen. The BOS appears to have it out for this bar/restaurant and is conducting another hearing with no proof that I've seen that the Makaha did anything wrong. But that doesn’t appear to bother the BOS. They prefer to shoot first and ask questions later.

The BOS claimed in January that having three incidents happen at the Makaha over a year was a pattern which justified its liquor license revocation. What do you think of a pattern of five or six incidents of harassment by the BOS against a business? Most would call it government abuse of power.

When a business has a license to serve alcohol, it takes on a responsibility to do so in a safe manner. But the ultimate person responsible for drinking is the individual drinker. The BOS's attempt to shift blame for irresponsible drinking to the serving establishment is the primary basis of its error in logic. Bars are not the cause of drinking or alcohol abuse, people are.

The second error is that the BOS has to show that the Makaha did something wrong. It has failed to do so in every single incident, including the present one. I won't go through the long history of this official abuse of the restaurant, but interested readers who have not been following this can go back and read the past articles (the list is at the end.)

The third error is that by now, the BOS should certainly know better. They went before the Alcoholic Beverages Control Commission (ABCC) to enforce their revocation of the Makaha liquor license in May and they lost. Well, "lost" isn't the right word. They got slaughtered. It was an embarrassment for the town of Acton and its attorney. One commissioner actually asked the Acton attorney what should the licensee have done differently, implying the licensee made no error. And the ruling itself confirmed that the town must have proof before it can cancel a business' liquor license. That can't be a decision made on circumstantial evidence or innuendo.

So while the BOS voted to reinstate the license after the ABCC ruled against the town, they obviously haven't learned anything from the experience. Here we are, a couple of months later, and the same nonsense is going on.

Now, let me make it clear that on the face of it, absent the pattern of abuse that we see now, there is nothing wrong with the BOS calling a hearing to discuss an incident. Having an open line of communication between our local leaders and the business community can be a very good thing. But you can't simultaneously investigate and punish. This forces businesses to act to defend themselves rather than help the BOS find out what happened. And it costs businesses a lot of money to hire lawyers. All of this has already been pointed out by me in prior articles, by the way.

When meetings become hearings and punishment can include revocation of liquor licenses (which means the closing of the business in most cases), then calling a local business before the BOS should never be done lightly. But in Acton, they keep doing it, even when there is literally no evidence of wrong-doing. And that is abusive.

I have a copy of the police report for the incident in question, which occurred on April 19, 2015. A patron came into the Makaha, ordered a drink, and ordered some food for takeout. He stayed for about half-an-hour and ended up having two mixed drinks. He took his takeout food to go. I watched the video and I could see no evidence of intoxication, nor was there any evidence that he was served while intoxicated.

An hour later, he was stopped by the police for erratic driving and he failed a field sobriety test. In the police report, he claimed he had been drinking at the Makaha from 7 pm until 9 pm and had four beers. But this is clearly disproven from the tape, which is time-stamped, and shows him there from 6:49 pm to 7:18 pm. He was only served two drinks (plus water.)

In the hour after he left, it is very possible the patron stopped elsewhere, because of his claim that he had just had four beers, and his takeout bag was described as a white plastic bag in the police report, but Makaha uses brown paper bags for takeout orders.

You don't need to be an Acton police detective to figure out that the Makaha did not overserve the patron and it was likely he made another stop in the hour between when he left the Makaha to when he was stopped and placed under arrest for OUI. So why is this incident being referred to the BOS and why is the Makaha ordered to appear?

The whole point of requiring that the Makaha have a taping system is so that the tape can be reviewed to see if they've done anything wrong. How about the police chief or the BOS chair take a few minutes to review the tape before scheduling a hearing which is effectively a punishment for the local business? Is that really too much to ask before forcing a business to appear before the BOS with counsel to defend itself?

Here are the links to the hearing and police report:

The state has two standards that apply to serving establishments. First, they can’t serve someone so many drinks that anybody would get intoxicated at that level of consumption. So a patron can’t go into a bar and get 10 shots of liquor and then leave. If he does, the bar would clearly be liable because they should know that nobody can consume that much alcohol and not be legally drunk, and they are prohibited from serving someone who is legally intoxicated.

The second is that anyone who exhibits signs of intoxication cannot be served. So let’s say someone comes into the bar, stumbling and slurring his words, and orders a drink. Even though it is the first drink, the bartender is supposed to be on the lookout for someone who might be intoxicated and noticing such signs should refuse service. (They may also have a duty to call for assistance to get the person a ride home, or call the police if they think the person might drive.)

Someone who goes into a bar, has a few drinks but shows no signs of intoxication, and then leaves, means the bar did nothing wrong. The patron is responsible for drunk driving if in fact he has had too much to drink. As an adult over 21, he should know his limit and he alone is responsible for his behavior.

But from Makaha's point of view, they are blameless, both legally and morally, if they don't violate the law, and the law is very clear (and even more so with the ABCC ruling.) Just because someone gets pulled over for OUI does not mean that whatever business served them alcohol previously has violated the law, nor can guilt be inferred even if someone is clearly intoxicated at a later time. Towns need direct evidence, not circumstantial evidence.

In this case, serving someone two drinks doesn't even qualify as a mistake.

As citizens, we can attempt to change state law if we don’t like how it is written. We can prohibit the sale of alcohol entirely, which would mostly solve the problem. Or we could make patrons take breathalyzer tests before and after service to make sure their blood-alcohol level is not too high to drive. Our failure as a society to take these steps should not mean we can impose our own version of "prohibition" locally on bars and restaurants which follow the state's rules as written and understood, even if there is one day an outcome that is horrible. The Town of Acton does not make state law and shouldn't try to rewrite state law for the town.

I really can't explain the BOS' vendetta against this business, and their lack of professionalism in how they are handling potential liquor-law violations in the town.

In the recent Makaha history, the BOS clearly had no clue as to what the duty of bars was, what the legal definition of overservice was, what TIPS training teaches, and how overservice must be proven before they can take action against a local licensee.

But after they lost the case before the ABCC, shouldn't the Board go into a huddle and come up with new rules or procedures to handle these issues? Either have a specific legal theory for what a bar or restaurant did wrong before calling a hearing, or have a fact-finding meeting at a lower level that does not force local licensees to hire lawyers every time there is an incident when there is no evidence that anything was done wrong.

Shame on the BOS for their abusive behavior. And shame on BOS Chair Katie Green for continuing her vendetta against this business by repeatedly bringing them before the Board without just cause, and for not showing any leadership on how to handle these issues after being taught right from wrong by the ABCC.

And let's not forget that this abuse is happening right under the noses of Acton's Town Manager and it's high-priced town-counsel firm. You'd think their jobs would be to protect the BOS and the town from committing these abuses. And how about some push-back from the police? Do they really feel that every time an officer is called, it should result in a liquor-license hearing before the licensing authority? Is this perhaps just another way to boost police department overtime, or do they enjoy abusing their power as much as the BOS?

So there is plenty of blame and incompetence to go around, it would seem.


Makaha Wins Appeal, May 23, 2015:

Town of Acton swings and misses at Makaha, May 6, 2015:

Board of Selectmen escalate Makaha harassment:

Learning from personal injury lawyers:

Lessons from the Makaha:

BoS Used Bad Data to Convict Makaha of Overserving:

Acton Selectmen should hold hearings on Verizon, Dunkin Donuts, pizza places, etc.:

Makaha launches petition drive:

BOS Bullies Makaha Restaurant, wrongly terminates liquor license:

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Selectmens Meeting

Thanks for your reporting on this. It sure was an interesting meeting to witness last night. I look forward to reading your follow up reporting.

Scott Smyers lives in Acton.