ABCC DECISION

Re: 632 Page Boulevard, Inc
dba The Cornerstone
Premises: 632-636 Page Boulevard
City/Town: Springfield, MA 01104
License: AB-Rest
Heard: April 20, 2005

DECISION

This was a hearing before the Alcoholic Beverages Control Commission (“the Commission”) on the appeal of 632 Page Boulevard, Inc. dba The Cornerstone from the action of the local licensing authority for the City of Springfield (“Local Board”) in revoking the annual, all alcoholic beverages restaurant license of 632 Page Boulevard, Inc. dba The Cornerstone pursuant to 204 CMR 2.05 (2) permitting disorder, disturbance or illegality on the licensed premises (7 Counts). This appeal presents the question whether this Commission should approve the action of the Local Board in finding the licensee committed the violations as alleged and also whether the Commission should approve the action of the Local Board in revoking the license for those 7 violations.

After hearing, the Commission finds the following facts and makes the following ruling.

Facts

632 Page Boulevard, Inc. dba The Cornerstone is a holder of an all-alcoholic beverage license for 40 years. James Regan as manager and owner has operated said establishment for over 23 years and manager for the last 6 years.

On 7 various dates, beginning June 19, 2003 through July 12, 2003 Vincent Savage a Springfield Police Officer was the subject of a narcotics investigation by the Massachusetts State Police. The focus of the investigation was centered on drug transactions between Officer Savage and a confidential informant (C.I.) who was his former girl friend. The drug transactions between Officer Savage and the informant occurred outside of the licensed premise of 632 Page Boulevard, Inc. dba The Cornerstone. There was no surveillance of Officer Savage inside of the licensed premises by either the State Police or the C.I.

On July 15, 2003 Officer Savage was arrested by the Massachusetts State Police. He was indicted by Hampden County Grand Jury and charged with trafficking and possession with intent to distribute cocaine. Vincent Savage pled guilty to the aforementioned charges on May 11, 2004 and was sentenced to 3 – 5 years at MCI Cedar Junction.
As a result of Mr. Savage’s arrest and alleged connection with the licensed premises, the licensing board of the City of Springfield charged the licensee with 7 counts of permitting an illegality on the licensed premises. Following a licensing board hearing the licensee was found in violation of 7 charges and his license was revoked. The licensee timely appealed to the Commission.

At the hearing before the Commission, the local board introduced the Statement of Reasons, which was objected to by the licensee. Although the Commission allowed into the record the Statement of Reasons (Exhibit 1), the Commission views said exhibit more as a position of the local board’s case than evidence or proof. Dolphino Corp. v. Alcoholic Beverages Control Com'n, 29 Mass.App.Ct. 954, 955, 559 N.E.2d 1261, 1263 (1990)(rescript)].

Before the Commission, the local board introduced (Exhibit 5) Massachusetts State Police Hampshire/Franklin Narcotics report (15 pages) by Sgt. Christopher McRay and Sgt. John T. Michel. McRay and Michel’s report describes the undercover operation whereby a C.I., a former girlfriend of Savage engaged him in at least 7 controlled drug transactions 1. The C.I. and Savage communicated by cell phone, which was recorded by the state police. The C.I. would request a certain amount of drugs from Savage. They both would drive over to the Cornerstone wherein the C.I. would give Savage a certain sum of marked bills. Savage would then enter the Cornerstone. It was alleged that Savage would buy the drugs in the men’s room of the licensed premises and return to the motor vehicle handing over the controlled substance to the C.I. On five occasions the State Police maintained surveillance of the C.I. and Savage and observed him enter and leave the Cornerstone. But on two occasions, on June 19, 2003 and June 27, 2003 the State Police lost surveillance of Savage and C.I. and did not make an observation of him entering or leaving the Cornerstone.

The alleged drug transactions between the C.I. and Savage occurred on June 19, 26, 27, July 9, 11, and 12, 2003. The drug transactions varied between (1) gram for $100 to (12) grams containing 70% cocaine with a street value of $1,500. After the June 19, 2003 controlled buy the transactions between the C.I. and Savage were both video taped and audio taped. The licensee does not contest that there were (7) drug transactions that occurred between the C.I. and Savage on various dates outside the licensed premise (Joint Pre-Trial Memorandum and Stipulated Facts).

Sgt. John T. Michel testified before the Commission and submitted a police report (Exhibit 5), which narrated the 7 purchases of illegal drugs. The police state that the C.I. knew Vincent Savage to be an abuser and distributor of cocaine (Exhibit 5 - Page 1). She had purchased cocaine from him numerous times (Exhibit 5 - Page 2). She had observed Savage with as much as an ounce of cocaine at his residence in Springfield (Exhibit 5 - Page 2). The C.I. told the police that Savage solicited the C.I. to “front” for him, a term that means that (he) Savage would pay for the cocaine and the C.I. would sell it for him. On June 19, 2003 the police furnished the C.I. with pre-recorded U.S. currency and set up surveillance of Vincent Savage and the C.I. Savage had instructed the C.I. to meet him in front of the Civic Pub on June 19, 2003. Unfortunately, the police lost surveillance of the C.I. and Savage and did not know their location until the C.I. informed them that she was waiting for Savage outside the Cornerstone (Exhibit 5 - Page 3). The police did not observe Savage enter or exit the Cornerstone but located them 1 mile from the Cornerstone. The police have no knowledge of what occurred inside the Cornerstone on this date. The C.I. delivered to the police the packages of cocaine and informed them that Savage had sold her 4 clear twisties that were later analyzed as positive for cocaine.

Sgt. Michel testified that on June 26, 2003 at 11:32 p.m. the police through the C.I. made arrangements to purchase $100.00 of cocaine from Savage. Savage directed the C.I. to meet him at the Cornerstone. Surveillance was set up in the alley of the Cornerstone. The police observed Savage walk into the Cornerstone and return a short time afterward. The C.I. later informed the police that Savage had sold to her a plastic twist of cocaine for $100. The clear plastic twist containing a white substance was later analyzed by the police as cocaine. The police had no knowledge of what transpired inside the Cornerstone on this date.

Sgt. Michel testified that on June 27, 2003 the police, through the C.I., arranged to make a buy of $100.00 of cocaine from Savage. Savage and the C.I. proceeded to an area in front of the Cornerstone. At approximately 9:33 p.m. (Exhibit 5 - Page 6) the police lost site of Savage. The police observed Savage again at 9:52 p.m. The police did not observe Savage enter the Cornerstone and were also not aware what transpired for those 19 minutes but observed him exit the Cornerstone and deliver to the C.I. a small item. The C.I. informed the police that Savage had sold her $100.00 of cocaine. The powder was later analyzed as positive for cocaine.

Sgt. Michel testified that on July 9, 2003 the police, through the C.I., arranged for a drug transaction with Savage. Savage instructed the C.I. to meet him at a Burger King parking lot on State Street. When the C.I. arrived, Savage was dressed in a police uniform and driving a police cruiser. Savage left the Burger King location and the police were not able to follow him to the Cornerstone. When the police arrived at the Cornerstone the police cruiser that Savage was driving was parked outside the establishment. The police did not know how long Savage was inside the Cornerstone or what transpired inside. The C.I. gave the police 2 clear twists of powder, which she said was sold to her by Savage. The powder was later analyzed as positive for cocaine (Exhibit 5 – Page 9).

Sgt. Michel testified that on July 11, 2003 the police, through the C.I., arranged to buy cocaine from Savage in the amount of $750.00. Savage arranged for the C.I. to meet him at a Burger King on Page Blvd. Savage then drove to the Cornerstone, entered at 12:20 p.m., exited at 12:30 p.m. and spoke with the C.I. at her motor vehicle about the amount of the purchase. He re-entered the establishment at 12:37 p.m. and exited at 12:43 p.m. at which time he entered the C.I. ’s vehicle and gave her “20 little ones.” The C.I. informed the police that Savage handed over 20 small packages of white powder for $750.00. The 20 packages were tested as positive for cocaine. The police were not aware of what transpired in the Cornerstone while Savage was inside (Exhibit 5 - Page 11).

Sgt. Michel testified that again on July 11, 2003 the police, through the C.I., arranged a cocaine buy from Savage in a Burger King parking lot. The police observed Savage drive to and enter the Cornerstone at 7:20 p.m. The police provided no information as to on how long he (Savage) stayed inside the establishment before exiting. Furthermore, the police do not know what transpired inside the Cornerstone. The C.I. reported to the police that Savage had sold her 5 plastic twists for $750.00. The twists were analyzed and found to be positive for cocaine.

Sgt. Michel testified that on July 12, 2003 the police, through the C.I., arranged for a sale of cocaine of 10 big ones for $1500.00 (Exhibit 5 - Pages 12 & 13). Savage was observed entering the Cornerstone at 2:17 p.m. and exiting at 2:29 p.m. The police observed Savage enter the C.I.’s vehicle and distribute “7 big ones and 12 small ones” for $1,500.00 (Exhibit 5 - Page 13). The police do not know what transpired inside. The 19 packages were later analyzed and found to be positive for cocaine.

Sgt. Michel testified that on July 15, 2003, while Savage was on a police detail at the Fleet Bank, the Massachusetts State Police, Hampshire/Franklin Narcotics Unit, arrested him. He had in his possession 2 small twists of powder, which were later analyzed as containing cocaine. Savage was given his Miranda warnings at the police station and agreed to cooperate with the police.

The Local Board introduced into evidence the Local Board’s decision (Exhibit 1), Joint Pre-Trial Memorandum (Exhibit 2), list of exhibits (Exhibit 3), July 15, 2003 statement of Vincent Savage (Exhibit 4), statement of Sgt. Michel (Exhibit 5), Arrest – Summons or Prison Record of Vincent Roland Washington and Trooper Timothy G. Babbin’ s report (Exhibit 7 and 8). Three witnesses testified on behalf of the Local Board, Sgt John T. Michel, Chairman Peter Sygnator of the Springfield Licensing Board and Kathleen Brown of the East Springfield Neighborhood Association. At hearing before the Commission, the licensee presented 2 witnesses: the owner of the licensee, James Regan, and Vincent Washington an events planner for the Cornerstone.

Savage later gave a signed statement to the police on July 15, 2003 (Exhibit 4), which he details his history with drugs, drug dealing and in particular drug dealing on June 19, 2003. Savage also gave a deposition (Exhibit 3B) after he is convicted further detailing his drug dealing at the Cornerstone on June 19th, June 27th, July 9th and July 11, 2003.

Discussion

The Local Board has the burden of producing satisfactory proof that the licensee violated 204 CMR 2.05 (2) permitting disorder, disturbance or illegality on the licensed premises (7 Counts), M.G.L. c. 138, §§ 23, 64, and that the penalty imposed by the Local Board was reasonable exercise of its lawful discretion.

In determining the licensee’s liability, the Commission is not restricted in only finding that the licensee actually knew that drug dealing was going on in their licensed premises. As the Appeals Court held in New Palm Gardens Inc v. Alcoholic Beverages Control Commission, Mass.App. 785, 798, 420 N.E.2d 8 (1981), “ [i]t is … quite possible for a licensee to offend the regulatory scheme without scienter.” The licensee is bound “to exercise sufficiently close supervision so that there is compliance with the law on the premises. A vendor who sells alcohol is bound at his own peril to keep within the condition of his license.” Commonwealth v. Gould, 158 Mass. 507, 33 N.E. 656 (1893). The case of Rum Runners Inc v. Alcoholic Beverages Control Commission, 43 Mass.App.Ct. 248, 682 N.E.2d 897 at (249), further rules on the licensee’s responsibility under the regulation, 204 CMR 2.05 (2), that in pertinent part, provides “the licensee shall be responsible therefore whether present or not.” In Rum Runners, a patron was a drug seller who sat next to a second patron at the bar and removed a folded 3”inch paper square in exchange for $50.00 while he (drug seller) made eye contact with the bartender. The Appeals Court in Rum Runners, supra at 251, in citing Pennsylvania Liquor Control Bd. v. Leggens, 117 Pa. Commw. 107, 111, 542 A2d 563 (1988), held that such conduct “ supports attribution of the bartender’s knowledge to the licensee.” Even where there was no evidence of the manager or bartenders whereabouts during the drug transaction, knowledge of drug activity still maybe imparted to the licensee where “the Commission could infer from the drug paraphernalia found by the raiding squad (scales, snorting tube). See Rico of the Berkshires v. Alcoholic Beverages Control Commission, 19 Mass.App.Ct. 1026, 477 N.E.2d 174.

The Commission in a recent decision further held that the finding of evidence or paraphernalia can lead to the conclusion based on a permissible inference that the management should have known illegalities in the form of drug violations were occurring (plastic baggies underneath the bar). In re: Moonshine Pub, Inc. v. Fall River Licensing Board, (ABCC decision March 9, 2005). In the case at bar, we have neither a direct drug transaction with management involved or a finding of drugs or drug paraphernalia inside the licensed premises. What we have is a furtive transaction in the men’s room of a bar with no employees or management present in that men’s room. The Local Board’s violation case is built on many of the same facts as the criminal investigation which involved traditional, non-administrative law enforcement personnel with wire tap authority staged outside the Cornerstone and a C.I. sitting outside the bar in a motor vehicle making various buys outside the licensed premises. The Local Board’s evidence of 7 Counts of violation of CMR 2.05 (2) is, to a large part, dependant on how the criminal investigation was conducted, wherein the C.I. and patron would have a conversation and decide to go to the Cornerstone on 7 occasions to purchase drugs. The C.I. would wait in the car while the purported patron, Savage, would go inside, purchase the drugs in the bathroom, return to the motor vehicle and deliver the drugs to the C.I. These facts were critical to the criminal investigation of Savage and ultimately led to his conviction; yet, these facts alone fall short of proving a violation of CMR 2.05 (2) committed by the licensee.

To prove a case of permitting an illegality, a Local Board can introduce evidence of activities that, taken together, ought to raise suspicion by any licensee, for instance, the time a patron arrives at the service bar inside the licensed premises, eye contact or discussions with other patrons, the time either party enters a bathroom, hallway or other secluded area, whether the patron is followed into any secluded area by any other patrons, whether a patron consumes any beverages delivered, the time a patron spends consuming beverages before departing, and any physical manifestation of drug intoxication or nervousness. Such evidence may also include consistent behavioral or transactional patterns with the same patrons.

The local board introduced evidence through a Pre-Trial Memorandum and a verbal stipulation that Mr. Savage purchased narcotics from the Cornerstone on 7 occasions; June 19, 2003, June 26, 2003, June 27, 2003, July 9, 2003 July 11, 2003 (x2) and July 12, 2003 (See Exhibit 2). Once the local board has introduced such evidence of illegal drug transactions on the licensed premises with such activities of the patron involved in the illegalities, the licensee must rebut this with credible evidence that they exercised sufficiently close supervision so that there is compliance with the law on the licensed premises Com v. Gould, 158 Mass. App. Ct. 507 33 N.E. 2d 656 (1893). “[M]ere ‘passivity or abstinence from preventative action’ may support finding that [a] licensee permitted an illegality.” Rum Runners Inc v. Alcoholic Beverages Control Commission, 43 Mass.App.Ct. 248, 682 N.E.2d 897 (1997) quoting Harrington v. Smarr, 844 S.W. 2d 16, 19 (Mo. Ct. App. 1992).

The licensee introduced evidence by James Regan the owner for 23 years that he did not work during the hours that Savage is alleged to have purchased drugs at the Cornerstone. Mr. Regan worked usually from 6:30 p.m. to 2:00 a.m. and Savage is alleged to have purchased said drugs from 3:45 p.m. to 7:00 p.m. Mr. Regan further stated that he did not observe Savage in the bar acting in a suspicious manner and did not observe or learn from any employee that Savage was a bad cop or dealing drugs. Assuming arguendo, that even if Mr. Regan did not directly see these illegalities as it relates to Savage, it is possible to offend the statutory scheme even without scienter. New Palm Gardens Inc v. Alcoholic Beverages Control Commission, Mass.App. 785, 798, 420 N.E.2d 8 (1981). The court in the Rum Runners opinion at page 249 cites the provisions of 204 CMR 2.05(2) which state “the licensee shall be responsible therefore, whether present or not. ” The licensee argues however that Savage entered the establishment on at least 2 occasions in uniform, carrying a service weapon. The licensee contends that Officer Savage should not be suspected on these occasions because he sat at the bar for a few minutes and ordered a soft drink, entered the bathroom, stayed a few minutes, returned to his bar stool, finished his drink and left. The licensee ’s argument is reinforced with Savage’s testimony at his deposition (Exhibit 3B Pages 10-13) that he tried to conceal the transactions in the bathroom, “I didn’t want anyone to know what was going on.”

The local board has alleged that Savage purchased illegal drugs within the Cornerstone on 5 other occasions, when he was wearing civilian clothes and drinking Tangueray gin, in other words when he was there as a patron. On these 5 occasions Savage admits to purchasing cocaine in the bathroom area, which is close to the bar. Savage stated, “When I would go in, I had to go in like I was a patron, patronizing the bar, so I would always sit down at the bar, preferably my same seat, order a Tangueray and tonic or a soda or a beer. That’s what I would do. That would have been my routine. I would scan the bar and I would look for somebody. If nobody was there, I would move on.” Question: On these seven occasions, you were able to make contact with your drug supplier? Answer: Yes Sir. Question: And he was inside the Cornerstone? Answer: Yes sir.” (Savage Deposition Pg.26 L1-12). Savage further testified at his deposition about the bathroom arrangement. (Savage Deposition Pg. 27 L6-13) Question: “Did they have cocaine on them or would they have to go somewhere and get the drugs? Answer: The gentlemen that met me in the bathroom, I made eye contact with them and the system we worked out, I would leave my bar stool, go to the bathroom. He would then come in maybe two, three minutes after me and he’d reach into his pocket and hand me what I needed.”

The Commission finds based on Mr. Regan’s testimony, that Mr. Regan in particular, witnessed Savage enter the small men’s room, followed by another patron, on several occasions and took no further action.

The licensee argues that the bathroom drug deals took place in an isolated area.
However, Vincent Washington testified before the Commission that the 1st floor bathroom only had 1 stall that there was a second bathroom upstairs with 5 urinals and privacy on the first floor could only be obtained if the door was locked.

Although Mr. Regan denied before the Commission on April 20, 2005 that Vinny Washington was a manager, Washington himself calls himself a promoter, in charge of entertainment. He also said he bartended. The Commission finds that Vinny Washington did have management authority at the Cornerstone. Savage testified Vinny Washington would sit at the end of the bar and would tell people what to do. He would also answer the telephone (Exhibit 3B – Page 25). The Local Board further argues that Vinny Washington’s association with Savage should impute knowledge of Savage’s criminal activities at the Cornerstone. Vinny Washington however, testified that he knew Savage 20 years through sports activities but never suspected him of selling cocaine (Exhibit 3E – Page 87 & 88). He further said no patron ever informed him that Savage was involved in selling cocaine.

The licensee further argues that it had no reason to suspect Savage was drug dealing because the licensee was not put on notice. However, when Mr. Regan was asked by this Commission, why didn’t he take measures to stop drug dealing prior to Savage ’s arrest, Mr. Regan replied, “I didn’t think it was anything.”

The local board offered rebuttal evidence that Mr. Regan knew or should have known that there was illegal drug dealing at the Cornerstone from an earlier news story in 2002 of an indictment and arrest of one person named Dennis Garafolo. Mr. Regan proffered that he did not receive actual notice from the police or local board of Dennis Garafolo’s drug dealing at the Cornerstone or his subsequent indictment or arrest. However, Regan did admit that in 2002 he did hear on the news and read in the newspaper that Garafolo was arrested with other co-conspirators. Moreover, Vincent Washington, who claimed without dispute that he served as entertainment manager for the Cornerstone from 1993 – 1996 and also from 2001 until his arrest in January 2004, further stated that he learned that Garafolo was dealing drugs at the Cornerstone from a newspaper and television account after Garafolo’s arrest. Washington further testified it was part of his responsibility to keep James Regan informed of any illegal drug activity at the bar.

The local board further contended that Vincent and Kaline (also referred to as “Kyle”) Washington were part of the drug dealing at the Cornerstone and since Vincent Washington was a manager, the Cornerstone is liable.

The local board introduced Sgt. Michel’s police report (Exhibit 5 – Page 15). Sgt. Michel testified that Savage informed him after he was arrested and agreed to cooperate “that Vinny Washington is in charge of the cocaine distribution operation but never touches the cocaine, that Vinny Washington’s brother, Kaline, was distributing cocaine inside the Cornerstone, prior to getting arrested for selling cocaine. That he was willing to make controlled purchases of cocaine from the three aforementioned individuals under the direction of law enforcement and that it would be suspicious for him to make a direct purchase of cocaine from Vinny Washington.”

The licensee objected to the introduction of Sgt. Michel’s statement as to what Savage informed him regarding Vinny and Kyle Washington’s illegal drug dealing at the Cornerstone as “totem pole hearsay.” This Commission although allowing into evidence Sgt. Michel’s report reserves the right to give said testimony its proper weight. Although hearsay evidence maybe admitted in a M.G.L. c. 30A hearing, See Commonwealth v. Durling, 407 Mass. 108, 551, N.E. 2d 1193, 1190, the key to its weight is its reliability. In Durling the court recognized the reliability of allowing in the report of a police officer that signs said statement under pains and penalties of perjury. However it is not Sgt. Michel who is making the observations or assumptions about Kyle and Vinny Washington, it is Vincent Savage who is making observations. Savage’s observations are made not as a police officer, but rather as a defendant, recently arrested and being cooperative. Savage not only does not sign the statement that Sgt. Michel writes but gives his own statement on the same day as Sgt. Michel’s report, and said statement does not include the incriminating information contained in Sgt. Michel’s report. Moreover, Savage in a deposition (Pages 14 – 16 and 29 – 30) on September 2, 2004, taken while incarcerated, not only denies making these statements to Sgt. Ray but goes on to say that Regan was never at the bar when he was doing his drug transactions (Savage Deposition Page 32). Savage further stated that he never knew that Vincent or Kaline Washington distributed drugs in the Cornerstone (Savage Deposition Page 34).

The Local Board argues that Vinny Washington’s criminal activities in Texarkana, Arkansas must be related to Vincent Savage at the Cornerstone. Washington’s alleged drug offenses occurred after the drug transactions by Savage. The Local Board introduced no link to Vinny Washington as manager and the alleged drug transaction in Texarkana, Arkansas. But more importantly, the Local Board has failed to make a connection between Vinny Washington and the 7 transactions that Savage made between June 26 and July 12, 2003.

The local board further contends that Vincent Washington was arrested in Texarkana, Arkansas and that the Commission should infer from these facts that he was either dealing illegal drugs or knew of illegal drug transactions at the Cornerstone. The local board introduced over objection an Arrest – Summons or Prison Record (Exhibit 6) of Vincent Roland Washington. The arrest report states that the date of arrest was January 23, 2004. The Cornerstone incidents were alleged to have occurred between June 19 and July 12, 2003 in Springfield, MA. The local board would like us to relate Mr. Washington’s arrest back to the June/July of 2003. They would like us to impute activity alleged in Texarkana, Arkansas to the Cornerstone in Springfield, MA., but cite no lawful authority for the use of said, after acquired, unfounded facts. The local board asserts that because Vincent Washington, an employee of the Cornerstone, took the Fifth Amendment for questions regarding his alleged illegal drug activities in Texarkana, Arkansas, his asserted Constitutional privilege against self -incrimination should compel this Commission to draw a permissible inference that Mr. Washington was distributing illegal drugs in Texarkana, Arkansas. The local board cites Commonwealth v. Source One Associates, Inc., 436 Mass. 118 (2002) and Neitlich v. Peterson, 15 Mass. App. Ct. 622 (1983) in support of this position.

In Commonwealth v. Source One Associates, Inc., supra, the Supreme Judicial Court stated in a footnote, “the defendants called no witnesses, and Easton claimed his right not to testify under the Fifth Amendment to the United States Constitution in response to all material questions in his deposition. The judge correctly stated that a reasonable inference adverse to the defendants maybe drawn from the refusal to testify on the ground of self-incrimination. (Citing Labor Relations Comm. v. Fall River Educators Association, 382 Mass. 465, 471 (1981) ).”

This Commission rules that the facts in Source One Associates, Inc. are distinguishable from the facts of this case. This Commission rules that it would not be a reasonable inference to draw that an admission to purchasing 2 kilos in Texarkana, Arkansas 6 months after Savage was arrested for dealing in the Cornerstone would have much relevance, absent any further link between them.

Following Savage’s arrest the police were able to obtain an unsigned statement from him alleging that Vinny Washington was in charge of the cocaine distribution but he never touched it, and that drugs were planted throughout the Cornerstone as well as providing a list of (3) names of individuals who furnished the drugs, including Kaline Washington. Savage under oath denies said statement (Exhibit 3B – Page 15). Although the Local Board produced some evidence by way of a police report that Vincent Savage made these statements following his arrest relative to Vinny Washington’s involvement in drug dealing at the Cornerstone, the Commission must also balance a statement under oath by Savage, which contradicts the un-sworn statement made to the police. The Commission was not able to judge the demeanor of Savage during either statement and cannot use this factor to decide the proper weight to be given them; therefore we give Mr. Savage’s (a convicted drug dealer) statements regarding Vinny Washington’s drug dealing little weight. After considering all these facts, the Commission finds that the licensee failed to exercise sufficiently close supervision so that there was compliance with the laws of the commonwealth. The licensee permitted illegalities to occur on the licensed premises.

1. June 19, 2003 Transaction

The Local Board introduced evidence that the police lost sight of Mr. Savage during the June 19, 2003 surveillance. Although the police were able to make the drug transaction through the C.I. there is no information provided as to when Savage entered the bar, how long he stayed and what transpired inside, except for Savage’s deposition testimony. Savage stated that on June 19, 2003 he entered the Cornerstone in a police uniform, ordered a soft drink sat the bar and approximately 5 – 10 minutes later made eye contact with the subject. He stated after eye contact was made with the seller he waited approximately 2 – 3 minutes before going into the restroom (Exhibit 3B – Page 7). He said he then waited 2 – 3 minutes in the restroom until the drug dealer entered. He stated no one was in the restroom and after he exchanged the drugs for money he went back to his seat, took a sip of soda and left. He believed that no management personnel were aware of said transaction (Exhibit 3B – Page 8), and he always kept the drugs in his pocket (Exhibit 3B - Page 10).

The Commission finds that the licensee did not in these circumstances fail to exercise sufficiently close supervision so that there was compliance with the laws of the commonwealth. The licensee did not permit illegalities to occur on the licensed premises. Insufficient evidence was presented to persuade the Commission how any licensee could detect and prevent this behavior. Any other decision would make it a per se violation and make it impossible for a bar owner to detect or prevent.

2. June 26, 2003 Transaction

According to Sgt. Michel (Exhibit 5 – Pages 5 -6) on June 26, 2003 the police set up surveillance at the Cornerstone when at 11:32 p.m. the police observed Savage, in civilian clothing, enter the Cornerstone and return a short time later. The police do not know what transpired inside, however the Commission is again furnished with the details of what transpired by Savage (Exhibit 3B – Page 9). He stated he entered the bar ordered a Tanqueray and tonic and made eye contract with a seller, who had already been in the bar. He said he drank the Tanqueray and tonic halfway and then went into the bathroom. He stated that there was no employee of the licensee came into in the men’s room during the transaction to check why 2 men were in a small, 1 stall bathroom. The Commission finds that the licensee failed to exercise sufficiently close supervision so that there was compliance with the laws of the commonwealth. The licensee permitted illegalities to occur on the licensed premises.

3. June 27, 2003

Sgt. Michel’s report states while doing surveillance of the Cornerstone he lost view of Savage but Savage was seen later entering the C.I.’s motor vehicle. The police did not observe Savage enter or leave the Cornerstone. The only information provided by Savage indicates that he purchased drugs at the Cornerstone (Exhibit 3B – Page 11). The Commission finds that the licensee failed to exercise sufficiently close supervision so that there was compliance with the laws of the commonwealth. The licensee permitted illegalities to occur on the licensed premises.

4. July 9, 2003 Transaction

Sgt. Michel testified that on July 9, 2005 at 2:45 p.m. surveillance staging was done at the Burger King parking lot on Page Street. Savage dressed in police uniform driving a police cruiser was given the prerecorded money by the C.I. and drove to the Cornerstone. The police did not see Savage enter the Cornerstone but observed his cruiser parked directly across the street. The police observed Savage exit the Cornerstone. The police did not record what time Savage entered or exited nor do they know what transpired inside the establishment.

Sgt. Michel testified that on July 11, 2003 at 12:20 p.m. Sgt Ray observed Savage in civilian clothes enter the Cornerstone and exit at 12:32 p.m. and speak with the C.I. He then observed Savage re-enter the Cornerstone at 12:37 p.m. and exit at 12:43 p.m. The police were able to identify drugs, which the C.I. purchased from Savage on both occasions he made two drug transactions within the establishment on this day. Sgt. Michel testified that State Trooper John Cummings observed Savage enter the Cornerstone. There was no information provided as to the time Savage exited the Cornerstone only that the transaction with the C.I. was done in the Burger King lot at 7:43 p.m.

7. July 12, 2003 Transaction

Sgt Michel testified that he observed Savage on July 12, 2003 at 2:17 p.m. enter the Cornerstone and exit at 2:29 p.m. The police were able to produce drugs from the C.I. following this transaction after a very brief walk in and out of the licensed premises.

The Commission finds that the licensee failed to exercise sufficiently close supervision so that there was compliance with the laws of the commonwealth. The licensee permitted illegalities to occur on the licensed premises.

Savage was arrested on July 15, 2003, while he (Savage) was on a police detail assignment at the Fleet Bank. He was later charged for the 7 drug transactions. During Savages arrest the police found Savage concealing 2 plastic twists of white powder in his hands. This evidence was later analyzed and found positive for cocaine.

Conclusion

This Commission finds that there was no violation on June 19, 2003 and July 9, 2003, (2) dates that Vincent Savage was dressed and armed in a Springfield Police Department uniform while purchasing illegal drugs from the Cornerstone. It is this Commission’s belief that when Officer Savage walked into the Cornerstone in a police uniform, ordered a soft drink, walked into the bathroom, whether or not a customer followed, returned to his seat at the bar and departed a short time later, no employee, manager or owner present would suspect that anything unusual occurred.

However, on the other 5 occasions when Savage entered the Cornerstone as a civilian, he should be viewed no different than any other patron. We find that although the Cornerstone may not have had specific knowledge of prior drug dealings at the Cornerstone by one Dennis Garafolo, they had some knowledge following the newspaper and T.V. accounts after Dennis Garafolo’s arrest. We find that James Regan knew of Dennis Garafolo’s arrest in the year 2002. We find that Vincent Washington, an admitted entertainment manager at the Cornerstone, knew about Garafolo’s arrest for drug distribution at the Cornerstone in 2002, and informed James Regan of said arrest. We find that Vincent Savage on 5 separate dates June 26, 2003; June 27, 2003; July 11, 2003 (on two occasions); and July 12, 2003 purchased illegal drugs from within the 1st floor bathroom of the Cornerstone. We find that James Regan and other employees had an affirmative responsibility to maintain close supervision over the premises on those 5 dates and because as Mr. Regan admits he “ didn’t think it was anything” permitted an illegality on the licensed premise. We find that the licensee offered no information as to the management plan or employee records to show what the management policy was for maintaining close supervision over the establishment over those 5 days. The Commission finds that the licensee failed to exercise sufficiently close supervision so that there was compliance with the laws of the commonwealth. The licensee permitted illegalities to occur on the licensed premises on 5 occasions.

The Commission disapproves the local board sanction of revocation for the seven (7) violations of CMR 2.05 (2).

The Commission will show deference to the local board’s decision about sanctions established in written guidelines that have been fairly set and applied. No such guidelines were introduced into evidence and the Commission infers that the Local Board was operating without such guidelines. Where there are no such guidelines, this Commission looks to the local board’s past disciplinary decisions. Mr. Signator, Chairman of the Springfield Licensing Board, testified that there has been, to his knowledge, 2 previous licenses revoked for permitting an illegality on the licensed premises, i.e., Charm Café (March 2003) and State Street Tavern. The Charm Café license was revoked due to a repeat offense of use and distribution of cocaine in front of employees and managers. State Street Tavern license was suspended, until such time as a new manager was hired, due to an employee (bartender) selling cocaine on the licensed premises.

In this case, as egregious as it is for a police officer to buy drugs in a bar, he was nevertheless attempting to conceal it in a bathroom. It is further noted that although there were allegations of one Garafolo and one Kaline Washington dealing out of the Cornerstone in 2001, the local board was aware of said illegal drug sales and took no affirmative action to hold the licensee responsible for it by charging the licensee with permitting an illegality on the licensed premises.

Therefore, the Local Board’s treatment in this matter is one of a first offense. The Commission disapproves the Local Board’s decisions as to 2 counts regarding the events on June 19 and July 9, 2003. The Commission approves the Local Board’s decisions as to 5 counts regarding the events on June 26, June 27, July 11 (2 events) and July 12, 2003.

The Commission remands said case back to the Local Board with a recommendation that the licensee be sanctioned separately for each violation and that said license be suspended for a period not to exceed 6 months.

The Commission further recommends that the Local Board modify the license by imposing the condition that Vincent Washington and Vincent Savage never be permitted to be agents, employees, contractors, or patrons of the licensee. This recommendation of the Commission about Mr. Vincent Washington is based on the Commission’s in-person observations of Mr. Vincent Washington while testifying, his admitted and undisputed role of management responsibility for the licensee, the failed operations of the licensee in areas for which he admitted without dispute that he was responsible, and his arrest for violating a state or federal narcotic drug law. This recommendation of the Commission about Mr. Savage is based on the proof furnished to the Commission that Vincent Savage admitting drug dealing at the Cornerstone.

ALCOHOLIC BEVERAGES CONTROL COMMISSION

Eddie J. Jenkins, Chairman _____________________________________________

I, the undersigned, hereby certify that I have reviewed the hearing record and concur with the above decision.

Robert H. Cronin, Commissioner _________________________________________
Dated at Boston, Massachusetts this 21st day of October 2005.

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.