WINNING AN APPEAL AT THE ABCC AFTER BEING FOUND TO HAVE SERVED AN INTOXICATED PERSON

 

Law Offices of John P. Connell, P.C.: In September 2016, the ABCC released its decision In Re: Casseys Gridiron Sports Bar (September 14, 2016) wherein the ABCC disapproved the City of Attleboro’s one day suspension on a Section 12 All Alcoholic Beverages pouring license for service to an intoxicated person in violation of M.G.L. c. 138, §69.

In summary, the City of Attleboro Licensing Board found Casseys Gridiron Sports Bar to have served an intoxicated person after a fight escalated in the parking-lot. An individual had approached the officers and began complaining about the incident and based on training and experience, the officers determined that the individual was intoxicated. Further, the individual told the officers that she consumed six beers at Casseys and a shot of Schnapps at the end of the night.

In such cases, the Local Board is obligated to produce evidence that the individual in question was showing outward signs of intoxication at the time he or she was served his or her last alcoholic beverage. In this case, the ABCC found the Local Board failed to prove by “substantial evidence” that the individual “manifested objective, observable signs of intoxication, while inside the licensed premises and after manifesting such signs of intoxication, was sold or delivered alcoholic beverages.”

The only evidence pertaining to the events inside the premise came from the officers’ verbal statements repeating what he heard from the allegedly intoxicated person. The ABCC held that even if evidence of the individual’s alcohol consumption was introduced as hearsay evidence, it still would not have risen to a level of “substantial evidence” that the individual appeared intoxicated such as the bartender knew or should have known that she was intoxicated at the time of service.

The ABCC found that even if the individual had consumed six beers and a shot, this alone would be insufficient to buttress the hearsay evidence, because there is no evidence to indicate the individual was outwardly intoxicated. The ABCC held that, “[s]even drinks, while at first glance is a significant number of drinks, alone is insufficient to presume an outward appearance of intoxication.” The Local Board failed to introduce the length of time the individual took to consume that many drinks or her physical demeanor. Similarly, the Local Board presented no information in regard to the individual’s tolerance to alcohol or her size to indicate effects, if any. Therefore, the ABCC found no inference of obvious intoxication at the time of sale and disapproved the action of the Local Board.

Such a decision by the ABCC shows that a lot more evidence is required the Local Boards in these types of cases, which include evidence the allegedly intoxicated person demonstrated to a server in the restaurant outward signs of intoxication and was then still served an alcoholic beverage. The mere fact an obviously intoxicated person is found outside an establishment does not in and of itself prove he or she was intoxicated or showing signs of intoxication after he or she was served their last drink inside the establishment.

Submitted by Jacqueline Sparaco

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

Written by

No Comments Yet.

Leave a reply