Lessons from the Makaha

The Makaha is a Chinese restaurant on Great Road and has been operating in Acton for 43 years. On January 12, 2015, the Acton Board of Selectmen (BoS) voted to revoke the Makaha's liquor license because of an incident that occurred this past November, as well as two or three incidents prior to that in the same year. The Makaha's legal recourse is to file an appeal with the ABCC (Alcohol and Beverage Control Commission) which it has done.

Revoking a liquor license is a very serious penalty. Most restaurants would go out of business without a liquor license. The only restaurant I remember that was able to stay in business without serving alcohol was Il Forno in North Acton. Patrons were allowed to carry in their own bottle of wine. This restaurant closed its doors about six months ago.

Acton Forum did a series of articles about the BoS's decision to revoke the Makaha license (links at the end of this article) in which we concluded that the revocation was an error. The two main issues we focused on were two findings of "overservice" which were wrong, and the concept that a license should be revoked when an entire incident seemed to be handled properly by the management. (In essence, punishing somebody for doing the right thing.)

The drama from the Makaha should have ended at the last Board of Selectmen (BoS) meeting held Thursday, Feb. 5th, 2015. The BoS voted 4-0 to suspend their liquor-license revocation until the ABCC could hear the appeal. So for the next few months, the Makaha can operate and serve liquor as before until the ABCC issues their decision.

In my view, the BoS should not make the Makaha go through this further exercise and they should just reinstate their license. The glaring errors the BoS made have been pointed out and documented, and the harm the Makaha has already incurred is far above what it deserved.

But given human nature and the inability to admit wrongdoing, that might be too much to ask. And I'm pretty sure that most of the BoS members still think they are correct.

Why? Because at that very same meeting, Feb. 5, they found Po's Barbecue restaurant guilty of "overserving," based on the same faulty logic of their previous decisions. In Po's case, they just issued a warning. But that will be the first thing they refer to if Po's is brought before the BoS again for any alcohol-related reason, even if Po's does nothing wrong. And that's not right.

So at the risk of beating this horse into leather, I am going to go through the logical argument that the BoS appears to still be missing, and hope that someone is listening. Otherwise, the BoS will perhaps be making Acton's streets less safe because of their inconsistent and illogical decisions.

CALLING FOR ASSISTANCE

Members of the BoS apparently believe their role as the liquor-license administrators is to protect Acton's streets from every drunk driver, and when a liquor-serving establishment has an incident, that becomes part of a pattern that proves guilt.

Human beings love to find patterns in things, even when such patterns don't exist. So perhaps this is just human nature at work. "Why are you coming before us again" is used to justify a punishment regardless of the facts.

The BoS would argue that they can't know all the facts so they must infer that things are being done wrong. Why would one bar have, say, three incidents in a year and another bar have one? Surely the bar with three incidents must be committing three times the violations, or so they believe.

But this logic is faulty.

Bars and restaurants can and should call the police whenever an incident occurs. This is what keeps our streets safer. The police can take patrons into protective custody, they can administer tests to determine if someone is able to drive, and they can prevent people from getting hurt if someone is violent.

If calling the police when alcohol may be abused is what you want bars to do, then you can't punish them for doing so, otherwise they won't call. And if bars and restaurants hesitate to call, that makes our streets less safe.

Therefore, the BoS needs to be much more "neutral" with businesses that appear before them to discuss liquor incidents. I don't think the police are at fault, other than perhaps the subtle way they advocate for a conviction and recommend punishment before a conviction has been shown, but they might start by not assuming any infraction has occurred until so voted by the BoS.

More importantly, the BoS needs to stop making arbitrary decisions when a licensee comes before it to discuss an incident. If the facts prove that a violation has occurred, then find for such an occurrence. But don't assume there is a violation because there has been an incident. They are not the same.

BEING DRUNK IS NOT A VIOLATION

What proves a violation? As discussed before, there are several ways that a bar or restaurant can "overserve" someone. First, they can serve a patron so many drinks that anybody would be intoxicated. Second, they can serve someone who is already visibly intoxicated. This is where the TIPS training comes in, and the waitstaff is aware and careful not to serve someone who is already inebriated, even as this is often very difficult to tell. But if a waitperson is monitoring the number of drinks, interacting with the customers, and a patron does not show they are intoxicated, then someone may still leave the bar too intoxicated to drive. This can happen if the patron is unusually susceptible to alcohol, is drinking elsewhere, or is good at hiding signs of intoxication.

Who's fault is that? That is the fault of our state laws which treats people as adults and makes them responsible for their own behavior. Unless Acton (and everywhere else) can install breathalyzers and require people to blow into them before leaving a bar, it is impossible to prevent every drunk from possibly driving.

The other side of this coin is that bars and restaurants are not responsible for what patrons do before or after their visit. Many people with alcohol problems sneak drinks (or other drugs) into their body at various times. Waiters and bartenders would never be able to tell this was happening unless they are supposed to get into the backseat of each patron's car as they drive away.

So how does the BoS manage to ensure that the bars and restaurants are continually educated and on top of the TIPS serving rules? They hold hearings and ask questions. That alone should be enough for bar owners to keep their staff trained, keep them talking about how important this function of theirs is, and do everything reasonably possible to keep Acton's streets safe.

What the BoS can't do is convict businesses based on lack of evidence, assume patterns when none exist, and make the mere appearance before the BoS evidence of an offense.

I also want to point out that if someone is not driving, and they are legally intoxicated for driving purposes, that is not a crime. Driving with a BAC of 0.08 or above is illegal, not walking out of a bar with that level. If a bar ensures that someone who is intoxicated is not driving, they are doing their job correctly.

PROVING A VIOLATION

There also seems to be this notion that because the BoS is not a court, it doesn't need to prove anything. That attitude leads to arbitrary decisions and is inherently unfair to businesses who have liquor licenses in town.

There are laws and there is training. If a bar follows the laws and training to the letter and someone gets caught driving drunk, it does not mean a liquor-law violation has automatically occurred.

But that seems to be how the BoS is making their decisions. Here is their chain of reasoning:

1. Person was drinking in a bar;
2. Person is later inebriated on the street (walking or driving, it doesn't matter);
3. Bar must have violated the law because they should have recognized that the patron was drunk and they contributed to the drunkenness by serving them alcohol.

You might think this faulty reasoning can't be how the BoS is making their decisions, but it is. It's the same reasoning they used to convict the Makaha and it's the same reasoning they just used in the Po's Barbecue hearing in which they voted 3-1 that an overserving violation had occurred. Here are the Po's Barbecue facts as discussed during the hearing:

Three patrons were sitting at the restaurant's bar and they had 2-3 drinks each over dinner. They left and drove to another establishment where one of the patrons was allegedly struck by a car. When the police arrived, a second patron was found drunk in a parking lot nearby. This second patron admitted to being drunk and drinking at Po's just before.

Now what reasonable person would conclude that serving someone two or three drinks over a couple of hours, when they had also had a full meal, would make someone so intoxicated that they'd be lying down in a parking lot a half-hour later? Nobody.

That result could never be predicted from what happened at Po's. And so long as there is no evidence that the waitstaff served a "visibly intoxicated" person, Po's is completely blameless and did not deserve even a warning.

But because of the BoS's mindset, Po's Barbecue "contributed" to the drunkenness of their patron, even if they didn't violate the law or overserve them alcohol. And that resulted in a finding of overservice and a warning letter.

What the BoS needs to do is have a meeting with some experts in TIPS training and a lawyer who has some understanding of the goals here, and figure out a set of conduct that they follow to eliminate the arbitrary nature of their decisions. They need to make sure that "calling the police" is not part of the evidence against an establishment. They need to make sure that overservice has been "proven" and not implied or inferred without any evidence, and they should focus on making sure that Acton's bars and restaurants are all TIPS certified and keep that training in the forefront of the minds of serving staff and bartenders.

So to sum up, in order to reach a finding of "overservice," the BoS needs to prove that a waitress or bartender served someone who appeared visibly intoxicated. This might involve witness testimony that the waitstaff ignored warning signs so they could make a little extra money. Or prove that the amount of alcohol served would make anybody intoxicated. If there is evidence that a patron is drinking heavily and that evidence is tampered with by the bar, that would be a clear violation. But there has to be some evidence beyond the fact that someone was later found to be drunk.

And if someone is drunk on the street, they need to show that the liquor consumed in the bar was totally responsible for their state of inebriation. Did they have 10 drinks over several hours which would make anyone drunk? Because if they only had two, three, or even four, that isn't evidence in itself of overservice. Was the patron drinking elsewhere or using drugs? That is an important question that needs to be answered and not glossed over.

"Contributing" to someone's intoxicated state is not a crime, even if the BoS thinks otherwise.

Maybe the BoS should create an undercover "sting" operation where someone acts drunk and orders more alcohol, and see if the bar or restaurant refuses them and calls them a cab. My guess is that every bar and restaurant in Acton would pass this test. But that is one way to be proactive about safety. This would be similar to when police send in underage drinkers to find violations of service. That is how you "legally" root out the bad apples.

MAKAHA WENT A STEP FURTHER

If you watch the recent Makaha hearing on Acton TV (See http://actontv.org/on-demand/post-video/selectmen-mtg-2-5-14mp4-1423245605), you will be impressed by the Makaha's attorney and the parade of witnesses who testified in support of the Makaha. Many of them made the same points I have made in my articles, but better, because they have actual experience with these things. Many were bartenders and waiters and police officers who have observed the Makaha and said they followed the rules and were proactive in keeping Acton safe.

It is very hard to prove a negative, but this hearing will convince many people that the Makaha should be allowed to continue to operate in Acton and is taking its liquor-license-serving duties seriously. This is more evidence of why the BoS should reinstate the license prior to the ABCC hearing.

None of that testimony was heard (or solicited) by the BoS prior to their decision to revoke the Makaha's liquor license. If it had, I'm sure their original decision would have been different. And I believe they failed in not getting enough information and evidence prior to their revocation vote.

If you want to watch the Po's Barbecue overserving discussion and decision on Acton TV, watch at about 1:58:00 time remaining in the meeting.

The Makaha hearing starts at about 59:50 time remaining.

SERIES CONTINUES HERE: http://www.actonforum.com/blogs/allenn/learning-personal-injury-lawyers

PRIOR ACTON FORUM ARTICLES ON MAKAHA:

BOS Bullies Makaha Restaurant, wrongly terminates liquor license: http://www.actonforum.com/blogs/allenn/bos-bullies-makaha-restaurant-wro...

Makaha launches petition drive: http://www.actonforum.com/blogs/allenn/makaha-launches-petition-drive-re...

Acton Selectmen should hold hearings on Verizon, Dunkin Donuts, pizza places, etc.: http://www.actonforum.com/blogs/allenn/acton-selectmen-should-hold-heari...

BoS Used Bad Data to Convict Makaha of Overserving: http://www.actonforum.com/blogs/allenn/bos-uses-bad-data-convict-makaha-...

Subscribe to the Acton Forum and get our newsletters emailed to you -- FREE! Click on http://www.actonforum.com/subscribe-actonforum-newsletter