INJURIES OR DEATHS OF RESTAURANT OR BAR PATRONS AREN’T ALWAYS A VIOLATION OF THE LIQUOR LAWS

Law Offices of John P. Connell, P.C.: Recently, the ABCC issued a decision that disapproved the action of the City of Lawrence’s five-day suspension on a Section 12 All Alcoholic Beverages pouring license when Balis Restaurant (Licensee) was charged with one violation of 204 CMR 2.05(2): permitting “an assault and battery/murder by gunshot” on the license premise. See In Re: Balis Restaurant (August 9, 2016).

In summary, a patron was shot and killed in the bathroom of the Licensee’s premise. The issue before the ABCC was to determine whether the Licensee took adequate precautions to prevent foreseeable harm to its patrons. In such cases, the ABCC will consider numerous factors, such as the security plan of the Licensee’s premise. Here, the Licensee had two security guards working on the night in question, and even though “these guards were not pat-frisking or conducting any sort of metal detection on patrons entering the establishment, they were present and checking identification.”

The Local Board argued the Licensee was in violation of 204 CMR 2.05(2) because in Lawrence specifically, failure “to pat-frisk, “wand,” or use other forms of metal detection on patrons entering the license premises, had been a violation in the past. The Licensee’s establishment is “distinguished from the entertainment-based clubs with large crowds consuming large amounts of alcohol in the Commission’s previous Lawrence decisions that the Commission determined warranted such high measures of security to be necessary.” The ABCC found that the Licensee did not hold an entertainment license, and should hardly be expected to “pat-frisk, “wand” or use other forms of metal detection on its diners.”

Although the Local Board argued that there were rules in place that required the use of metal detection, it soon became apparent to the ABCC that the “Local Board could not prove when the rules became effective in the City” and further, “even if the rules were in place they were not being enforced at the time of the incident giving rise to the allegation against the Licensee.”

The ABCC ultimately disapproved the action of the Local Board and further held that the Licensee took adequate steps to prevent harm to its patrons by having both security guards on duty.

This case is important in that many Local Boards reach the conclusion that because there was violence in a licensed establishment that the licensee has somehow failed in its obligations, but such is not the case.

Submitted by Jacqueline Sparaco

(c) 2017 Law Offices of John P. Connell, P.C.

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