Re: Fynders, Inc. dba Finders Pub
Premises: 171 West Boylston Street
City/Town: West Boylston, MA 01583
License: AB-Rest
Heard: May 4, 2005

Decision

A Commission hearing was held to determine whether the appellant Fynders, Inc. (hereinafter “Finders”) violated M.G.L. c. 138, §69 and 204 CMR 2.05(2) service of alcoholic beverages to an intoxicated person.

On behalf of the local board Officer Matthew Saunders testified that on August 28, 2004 during a routine business check he noticed a dark colored SUV (not running, no keys in the ignition) still parked in Finders parking lot after closing at approximately 2:20am. He noticed that the passenger windows were open and the driver was slumping back on his seat and appeared to be asleep. Saunders testified that he attempted to wake the driver several times but could not, therefore, he called for back up. Officer Saunders said when the driver awakened his movements were delayed. Saunders stated that the driver, who identified himself as Mr. Reed, did not know what time it was or how long he was parked or sleeping.

Saunders testified that Reed’s eyes were red and watery and he had an odor of alcohol on his breath. Officer Saunders stated that Reed was standing fine outside the vehicle and that he did not offer him a field sobriety test but made an assessment within 5 minutes that Reed was intoxicated and placed him in protective custody. Reed was later offered a field sobriety test at the station but he refused. Officer Saunders testified that he has no evidence of Reed’s sobriety at the time any of the 4 beers were allegedly served to Reed by Finders.

Sgt. Bartlett testified that he responded to Officer Saunders radio call and found Reed to have a moderate odor of alcohol on his breath, slurred speech and in a stupefied condition. He testified that he did not offer Reed a field sobriety test but offered him a portable breath test at the station, which Reed refused.

Mr. Reed testified that he arrived at Finders approximately 5:00 pm and left approximately 7:30 – 8:00 pm. He stated that when he left Finders he sat in his car to relax and the next thing he remembered people were waking him up. He said that he had 4 beers at Finders and the last drink was over 6 hours prior to Officer Saunders waking him up. The Commission gives credit to Officer Saunders’ and Sgt. Bartlett’s testimony as to Reed’s physical manifestation of red and watery eyes, moderate odor of alcohol on his breath, slurred speech and stupefied condition but does not adopt their conclusion that Reed was intoxicated. The Commission finds that Reed’s behavior could be, as Reed stated, disorientation as a result of suddenly being awakened. The Commission reaches this conclusion as the Commission gives more weight to the testimony of former State Police Academy Trainer Stephen Benanti (agreed upon expert in field sobriety testing), who testified for Finder’s that the procedures used by the officers at the scene to determine Reed’s intoxication were not proper because the police failed to use field sobriety tests.

The burden is upon the local board to prove by a preponderance of the evidence that a patron (Mr. Reed) was intoxicated at the time of the service. The local board offered no direct evidence of service to an intoxicated person but proffered that an admission by Reed of consuming 4 beers and Officer Saunders’ and Sgt. Bartlett’s testimony of their opinion of Reed’s sobriety.

Massachusetts’ courts have held that negligence cases provide “some guidance” as to what must be proven “to show a violation of the statute [G.L. c. 138, §69].” Ralph D. Kelly, Inc. v. ABCC, Middlesex Superior Court C.A. No. 99-2759 (McEvoy, J.) (May 23, 2000) cited in Royal Dynasty, Inc. v. ABCC, Suffolk Superior Court C.A. No. 03-1411 (Billings, J.)(December 9, 2003). The Superior Court has also held that to prove a claim of negligent service to an intoxicated person, evidence must be presented that a license holder sold or delivered alcoholic beverages to a person

at a time when a reasonable person in the position of that defendant would have known that [the patron] was intoxicated. See Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358 (1990); Cimino v. The Milford Keg, Inc., 385 Mass. 323, 327 (1982). To meet that burden, "a plaintiff must come forward with some evidence that the patron's intoxication was apparent at the time he was served by the defendant." Douillard v. LMR, Inc., 433 Mass. 162, 164-165 (2001). "The negligence lies in serving alcohol to a person who already is showing discernable signs of intoxication." Vickowksi v. Polish American Citizens Club, 422 Mass. 406, 610 (1996), and cases cited. A plaintiff can make the required showing by either direct or circumstantial evidence, or a combination of the two. See Doullard v. LMR, Inc., 433 Mass. at 165; see also Cimino v. Milford Keg, Inc., 385 Mas. at 328 (evidence that patron was served six or more white Russians and became "loud and vulgar" sufficed). The patron's consumption of a large quantity of alcohol is a circumstance that, in itself, can support the necessary inference. See Vickowski, supra, at 611 ("a jury confronted with evidence of a patron's excessive consumption of alcohol properly could infer, on the basis of common sense and experience, that the patron would have displayed obvious outward signs of intoxication while continuing to receive service"). In Vickowski, however, the Court held that four or five bottles of beer over approximately two hours did not suffice to support the necessary inference, in the absence of any direct evidence that the patron showed signs of intoxication when served. Other cases, similarly, have held substantial quantities insufficient absent other evidence. See Kirby v. Le Disco, Inc., 34 Mass.App.Ct. 630, 632 (1993) (eight beers); Makynen v. Mustakangas, 39 Mass.App.Ct. 309, 314 (1995) (five or six cans of beer). A subsequent blood alcohol level does not suffice in itself to meet the plaintiff's burden, but such evidence may bolster other evidence to form a set of facts sufficient to support an inference. See Douillard, supra, at 165- 166. In Douillard, on review of a grant of summary judgment, the Supreme Judicial Court accepted proffered expert testimony … as part of the circumstantial evidence that it held sufficient. The expert there … extrapolated from a subsequent blood alcohol level to form opinions both as to the amount of alcohol the patron had consumed, and as to his blood alcohol concentration at the time he was last served, as well as the signs of intoxication most people would show at that level. There … the patron's companions testified that the patron did not show such signs. … however, the evidence there indicated that the patron had a history of displaying visible signs when intoxicated, and the patron himself acknowledged that he would be intoxicated at a level of consumption lower than the amount the expert opined would have been required to reach the blood alcohol concentration later shown. See id. at 166-167. The Court held the combination sufficient to survive summary judgment. Compare Kirby v. Morales, 50 Mass.App.Ct. 786, 793 (2001) (expert testimony properly excluded in absence of evidence as to patron's reactions to excessive consumption, and where evidence left unclear whether patron may have consumed additional alcohol after leaving defendant's premises).
Fazio v. Lincoln Restaurant Group, Inc., 18 Mass.L.Rptr. 239, 2004 WL 2049234 (Mass.Super.)(August 27, 2004).
In the Ralph D. Kelly, Inc. case, the Superior Court reversed a decision of the ABCC suspending a license for violation of this statute on facts that showed a 1-car fatal accident occurred down the street from the licensed premises, minutes after the decedent/operator left the licensed premises, and that the deceased operator had a blood alcohol level of .189%. The Superior Court held that “there must be evidence that the violator knew or should have known the person he served was intoxicated.” Ralph D. Kelly, Inc., at page 4. The Superior Court further held that without any “expert testimony to say that a man with a blood alcohol level of .189% taken sometime after death probably would have shown outward signs of intoxication at a certain time prior to death,” a violation of G.L. c. 138, § 69 is not proven. Ralph D. Kelly, Inc., at page 4.

In the Royal Dynasty case, the Superior Court reversed a decision of the ABCC approving a local board decision finding a violation of G.L. c. 138, § 69. The Royal Dynasty case involved facts described by the Superior Court as “a horrific fatal accident, the extraordinarily reckless behavior by two recently-departed Royal Dynasty patrons that caused it, the failed PBT [portable breathalyzer test] and field sobriety tests at the scene, and the evident absence of another source of alcohol for either man.” Royal Dynasty, at page 10. The Superior Court acknowledged that in that case with those facts “it is tempting to reason backward to the conclusion that they [the allegedly intoxicated patrons] must have been visibly intoxicated when served.” Id.

In the case before the Commission, there is an alleged service to an intoxicated person, the witness Mr. Reed. While there may be evidence that Reed displayed some discernable signs of intoxication while outside the licensed premises, there is no evidence that he was sold or delivered alcoholic beverages after he displayed signs of being intoxicated while inside the licensed premises. There is no evidence of the amount of alcoholic beverages Reed consumed inside the licensed premises other than 4 beers over a period of 2 ½ to 3 hours. The only evidence in the case is that Reed consumed those (4) alcoholic beverages 6 hours before he was found in the parking lot. There is no evidence of his blood alcohol level. There is no evidence that he was sold or delivered alcoholic beverages after displaying signs of being intoxicated.

The service and observations of intoxication are joined at the hip. They are as you say the “hand and glove of the service to an intoxicated person” violation. There are alternate ways of proving service to an intoxicated person, like an admission by a patron of how they felt or witness statement as to the patrons demeanor at the time of service or reverse alcohol extrapolation evidence. In this case, unfortunately, the local board provided no conclusive evidence of intoxication.

The Commission disapproves the action of the local board in finding the licensee violated G.L. c. 138, § 69. Therefore, the Commission also disapproves any suspension or modification of the license based on the unproven alleged violation of M.G.L. c. 138, § 69.

The alleged violation of the Commission regulation prohibiting an illegality on the licensed premises is based on the allegation that the licensee sold or delivered alcoholic beverages to an intoxicated person in violation of G.L. c. 138, § 69. Because the Commission today disapproves the action of the local board in finding the licensee violated G.L. c. 138, § 69, the Commission also disapproves the action of the local board in finding the licensee violated 204 CMR 2.05(2), the Commission regulation prohibiting a licensee from permitting an illegality on the licensed premises, cited as the second alleged violation.

ALCOHOLIC BEVERAGES CONTROL COMMISSION

Eddie J. Jenkins, Chairman _______________________________________________

Suzanne Iannella, Commissioner __________________________________________
Dated at Boston, Massachusetts this 1st day of June 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.