Selectmen defend Makaha harassment

The Makaha Chinese restaurant has had another hearing before Acton's Board of Selectmen (BOS) on July 20, 2015, with the threat of a license revocation hanging over their heads, but the BOS decided that no violation had occurred on a 4-0 vote. You can read about the underlying incident that happened on April 19, 2015, in an article called "Government abuse alive and well in Acton:" http://www.actonforum.com/blogs/allenn/government-abuse-alive-and-well-a....

BOS Chairperson Katie Green defended the process they used to hold the hearing, while acknowledging that the Board has not reviewed how it handles these issues since the Makaha successfully overturned its license revocation before the state's Alcoholic Beverages Control Commission (ABCC) in May. She also said the Board has not reviewed how other towns deal with issues like this.

Selectman Peter Berry, who is a former town counsel, defended calling the Makaha before the BOS. He argued that the driver who was arrested for OUI named the Makaha as the last place he had been drinking when questioned by the police. The driver also claimed that he had been served four beers over a two-hour period, from 7 pm to 9 pm. This was despite being stopped by the police at 8:30 pm for erratic driving, around when he should have been drinking his third beer.

The Makaha is required to maintain a video taping system, and an officer went to the Makaha a day or two after the April incident and told the owner to keep a copy of the video. Yet the BOS apparently did not see fit to review the tape of the incident until their hearing on July 20th.

Had they done so, they probably would have reached the obvious conclusion that the patron had just two mixed drinks and left the Makaha at 7:20 pm (the tape is time-stamped). Since he was stopped by the police at 8:30 and claimed to have just consumed four beers, that had to be at another establishment.

Had the BOS or the Chief of police asked a few questions, they would have learned that the "white plastic" takeout bag that was in the driver's front seat is not what the Makaha uses (they use brown paper bags.) More good evidence that another stop had been made after the Makaha.

In other words, in an hour or two of research, anyone would have concluded that the Makaha was definitely not the last place of service, therefore, they are blameless and should not be required to appear before the licensing authority (the BOS).

Even Selectman Berry voted that no violation had occurred, but this conclusion was after the restaurant was forced to bring its owner, manager, and attorney to a public hearing. Shouldn't the BOS have even just a little bit of sensitivity to the costs this business is incurring to comply with these frequent and unsubstantiated hearings which have produced no proof of serious wrongdoing (i.e., liquor-serving violations under the law) by the Makaha? Keep in mind that the BOS has brought the Makaha before it several times in the last year, and has not proven once that the bar "over-served" anyone. (They did vote twice for an over-service violation but those decisions were clearly flawed and well outside the definition that the ABCC used in defining over-service.)

Even when it became obvious that the Makaha was blameless, Berry could not just admit he or the Board was wrong, or apologize for the costs the BOS is forcing on this local business owner. Instead, Berry reiterated his support for this flawed process by citing that the patron, who was arrested for OUI, had repeated his claim that he had last been drinking at the Makaha in court. Therefore, the BOS was perfectly justified in calling a hearing to discuss punishment for the restaurant, up to revoking their liquor license...again.

But the Makaha's attorney said that statements such as those made by the patron in court were not made under oath, and she told me that patrons could not be trusted to disclose a liquor-service violation that may have been committed by their "favorite bar." So someone may not willingly admit the last place where they had been drinking.

This is where a little research would have been useful. Is the evidence credible that the patron had been "over-served" at the Makaha? If not, don't escalate it. If so, call them before the Board.

If the Selectmen think that forcing our town's bars and restaurants to appear before the Board several times per year, and pay thousands of extra dollars in attorneys' fees and witness' salaries, is fair and reasonable, then I guess the process that we have seen in Acton will continue. The Board will not instruct the Chief of Police to screen the alleged violations for some sort of "probable cause;" the Selectmen will not review any evidence prior to scheduling a hearing; bars and restaurants will have to hire attorneys because of the Board's proven poor track record of finding violations where none exist and issuing harsh penalties outside of what is reasonable; and liquor licensees in Acton should just factor in that they should expect several thousands of dollars in extra costs each year to deal with Acton's archaic and bureaucratic procedures.

And let's not forget the high legal fees and police overtime that the town is paying to prosecute these alleged violations. Yes, we want to keep the streets safe. But having bars and restaurants serve alcohol is inherently dangerous and all we can ask is that these establishments follow the letter and spirit of the law to minimize potential bad outcomes. The Makaha is doing that. As one ABCC Commissioner asked Acton Town Counsel during the May appeals hearing, "what else would you have the licensee do?"

Maybe when the town hires a new "economic development" director, someone will start fighting for the rights of, and justice for, Acton's business community. No one is doing that now, least of all the clueless and heartless Board of Selectmen.

PREVIOUS ARTICLES ON THE MAKAHA (most recent first):

Government abuse alive and well in Acton: http://www.actonforum.com/blogs/allenn/government-abuse-alive-and-well-a...

Makaha Wins Appeal, May 23, 2015:
http://www.actonforum.com/blogs/allenn/makaha-wins-appeal

Town of Acton swings and misses at Makaha, May 6, 2015: http://www.actonforum.com/blogs/allenn/town-acton-swings-and-misses-makaha

Board of Selectmen escalate Makaha harassment: http://www.actonforum.com/blogs/allenn/board-selectmen-escalate-makaha-h...

Learning from personal injury lawyers:
http://www.actonforum.com/blogs/allenn/learning-personal-injury-lawyers

Lessons from the Makaha: http://www.actonforum.com/blogs/allenn/lessons-makaha

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

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

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

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

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