This was a hearing concerning alleged violation of 204 CMR 2.05 (2) permitting an illegality on the licensed premises, to wit: Ch.138, §69 Sale and delivery of an alcoholic beverage to an intoxicated person (1 Count).

Investigator John Carey testified and introduced a report (Exhibit #1), that on December 30, 2005 at approximately 12:30 A.M. he, Investigators Kujawski and Investigator Binienda entered the licensed premises and observed “two individuals, a male and female at the bar, who appeared to be intoxicated. The female was extremely unsteady on her feet and was having difficulty in speaking. The male was unsteady on his feet and slurred his speech.” Investigators testified that both patrons finished their drinks and left the establishment. The investigators testified that they followed the 2 patrons out the door to determine if they were going to drive away. Investigator Carey testified their intention was to stop the individuals if they attempted to operate a motor vehicle. Investigator Carey testified, “they informed us that Ms. Johnson was going to drive her Jeep a short distance to their home which was not far away. We suggested that they get a ride home by cab or a friend ... . Investigator Carey testified the male patron became very upset and used abusive language toward the three investigators, where upon Investigator Binienda called the Millbury Police Department for backup.
Investigator Carey testified he lost sight of the male patron but found him sitting at the bar with a full 12 oz. beer in front of him when they re-entered the establishment. Investigator Carey stated, he asked the bartender do you think the patron needs another drink? He told the investigator “probably not.” Investigator Carey testified the bartender stated, “that is the beer he had before he left.” Investigator Carey testified that he responded, “no it’s not, I saw him finish the beer before he left. That is full and you served him another one when he came back in, didn’t you?” The bartender responded “yes.”
The bartender, Barry Wilkinson testified that he served Trembley a beer as soon as he down. He said he knew what Trembley ordered because he is a regular customer. He testified that he noticed nothing out of the ordinary. He didn’t believe Trembley or his female companion was intoxicated. He further stated that there were only 8-10 people in the bar at the time he served Trembley. Wilkinson stated when Trembley returned he was sitting with someone who ordered 3 beers. He did not know where the 3rd beer was going. Wilkinson also stated that if there was a new beer in front of Trembley he probably served it to him.

The licensee is charged with sale and delivery of an alcoholic beverage to an intoxicated person. In order to violate said regulation the investigator must first make a finding that a patron was intoxicated and then observe service to him/her. G.L. Ch.138§69.

In this case Investigator Carey and Binienda testified that they observed the patron unsteady on his feet and having great difficulty speaking. They also observed him with slurred speech. The bartender, Wilkinson, contradicted the investigators opinion of intoxication by testify that Trembley appeared “nothing out of the ordinary.”

It is this Commission finding that the bartender’s attention, as to Trembley, leaves a lot to be desired since he also stated that there were only 8-10 people in the bar. Investigator Carey testified that there were 25-30 patrons in the bar at the time Trembley was served. The Commission has had the opportunity to observe both the bartender Wilkinson and the investigators Carey, Binienda and Kujawski and concludes that the investigators attention to the patron(s) and the description of Trembley demeanor in particular is more credible.

The investigators after observing the patrons intoxicated state must observe service. Investigator Carey stated that Trembley had finished his bottle of beer when he exited the establishment and when he returned there was a new 12 oz. bottle of beer in front of Trembley. The investigator testimony, although having not observed direct service to the patron, is supplanted by observing the patron finishing the beer, observing a new beer in front of him and the bartender’s testimony that he probably served him the new beer. The combination of the investigators observations and Wilkinson’s admission leaves no doubt that there was service to an intoxicated patron.

Therefore, the Commission finds the licensee in violation of 204 CMR 2.05 (2) permitting an illegality on the licensed premises, to wit: Ch.138, §69 Sale and delivery of an alcoholic beverage to an intoxicated person (1 Count) and suspends the license for 6 days.

Alcoholic Beverages Control Commission

Eddie J. Jenkins, Chairman _______________________________________________

Robert H. Cronin, Commissioner ___________________________________________

Suzanne Iannella, Commissioner ____________________________________________
Dated at Boston, Massachusetts this 10th day of May 2006.

You have the right to appeal this decision to the Superior Court under the provisions of Chapter 30A of the Massachusetts General Laws within thirty days of receipt of this decision.