Re: Fynders, Inc. dba Finders Pub
Premises: 171 West Boylston Street
City/Town: West Boylston, MA 01583
License: AA-Rest
Heard: October 12, 2004 and January 4, 2005

Decision

This was a hearing regarding alleged violation of c. 138, §69 sale or delivery of an alcoholic beverage to an intoxicated person (1 count) and 204 CMR 4.03(1)(A) offering or delivering free drinks.

After reviewing all the testimony and exhibits including the ABCC investigator’s report, state police accident reconstruction reports, medical reports and photos of the establishment, the Commission finds that the licensee Fynders, Inc. dba Finders Pub
(“Finders”) violated c. 138, §69 sale or delivery of an alcoholic beverage to an intoxicated person (1 count) and, therefore, suspends the license as stated below. Also, the Commission finds the licensee violated 204 CMR 4.03(1)(A) offering or delivering free drinks and, therefore, suspends the license as stated below.

Questions Presented

Whether the licensee violated c. 138, §69 sale or delivery of an alcoholic beverage to an intoxicated person (Katie McAloon) and 204 CMR 4.03(1)(A) offering or delivering free drinks?

Facts

On March 28, 2004, Kathleen “Katie” McAloon was a patron from approximately 9:00 pm to 12:15 am at Finders Pub located at 171 West Boylston Street in West Boylston. She was killed when the car she was driving left the road and fell over 70 feet around 12:36 a.m.

Emily Towle was bartending on the night of March 28, 2004. She served Katie a Coors Light draft, a blue kamikaze shot and two “Mongolian Mothers” which Katie split with another patron/employee Jason Lucas. A “Mongolian Mother” is made in a 16 oz. glass comprised of 10 types of liquor and 3 mixes (ice, vodka, gin, rum, tequila, triple sec, peach schnapps, amaretto, sloe gin, southern comfort, 151 proof rum, grenadine, cranberry juice, and orange juice). Emily also stated that Katie might have been served by another bartender. When asked if in her opinion Katie was intoxicated on the night of the accident Emily Towle stated, “yes.” Emily also testified that she noticed Katie was intoxicated about an hour before she left and prior to her being served the Coors Light. Emily also stated that she had seen Katie intoxicated more than once while Katie was drinking at Finders Pub. Emily was under the impression that Katie was getting a ride home and would not be driving. Emily testified “I would have ignored Katie so that her drinks were spaced out more if I had known she was driving”. She also gave out a free “shot” to everyone at the bar.

Meghan Kelleher was a waitress working at Finders Pub on March 28, 2004. She went to school with Katie McAloon and was her suite mate at Worcester State College. Meghan stated that she received a phone call at approximately 8:20 pm from Katie. Katie wanted to come to Finders because she did not have any money and they could “hang our tabs” at Finders. She explained that “employees or close friends of Finders could drink and eat and hang our tabs and either pay it back at a later date or have it come out of our paychecks.” Meghan also testified that Katie told her over the phone that she was in the mood to drink and already had consumed a “few” drinks. Meghan described Katie as “very thin, 5’7”, no more than 120 lbs.”

Meghan testified that Katie drank at least one Mongolian Mother, a shot and two beers at Finders on March 28, 2004. Meghan described Katie’s eyes as fuzzy and watery and also that she was off balance on her way to the ladies room. When asked when she formulated the opinion that Katie was intoxicated, Meghan answered “about halfway through the evening.” She also testified that Katie was served a beer after she came to the opinion that Katie was intoxicated. Meghan also made reference to Katie bumping into a wall and fumbling with her cigarette.

Alicia DiRoberto was a waitress working at Finders Pub the night that Katie McAloon died. She remembered Katie drinking a Mongolian Mother, two or three beers and a shot called Blue Kamikaze. She stated “she wasn’t drunk when she got there, after we had some more drinks towards the end of the night, she was”. She also noticed Katie fumbling with her cigarette and stumbling a little on her way to the ladies room. She also recalled receiving her free shift drink and subsequent drinks she did not pay for.

Daniel Mitchell is the assistant general manager of Finders Pub. He was working on March 28, 2004 in a supervisory capacity. He remembered seeing Katie McAloon and did not think she was intoxicated. He could not find a tab or bar receipt for the group of people who Katie McAloon was with on the evening in question. He remembered noticing Katie drinking a beer and saying hello to her as she held a conversation with Jason Lucas.

Jason Lucas is a part-time cook at Finders Pub. He was working at Finders Pub on March 28, 2004. He went to the bar at Finders at 10:00 pm when his shift ended. He shared buffalo wings and two Mongolian Mothers mixed drinks with Katie. He sat next to Katie, conversed with her and did not think she was intoxicated. He did not recall anyone receiving a Kamikaze during the evening. He also walked her to her vehicle. He testified, “she said she was fine to drive.” He did not see her fumble with her cigarette or stumble to the bathroom. He also stated Katie told him she had a couple of beers at her dorm room prior to arriving at Finders Pub.

Jason testified, “at the end of the evening she said she was fine to drive.” When asked, “did you ask her if she was alright to drive,” he answered, “I must have, yes. She said she was fine. We talked for a little while before she got in the car.” He also stated he thought that Katie would be getting a ride home.

Discussion

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).

The Commission received testimonial evidence from 5 witnesses all whom worked at Finders Pub on the evening of the incident.

The bartender on duty and the three witnesses who were drinking with Katie McAloon all testified to receiving free drinks and the existence of a “tab”. The manager on duty Mr. Mitchell acknowledged that it appeared people were drinking for free because he could not find any “tabs” the next day. He also noted that the “free shift drink” policy was terminated at Finders subsequent to the incident.

Meghan Kelleher’s description of events seemed to be the most consistent and accurate. Her version was bolstered by the testimony of Alicia DiRoberto. They both testified to noticing Katie stumble on the way to the ladies room as well as fumbling with her cigarette. The bartender Emily Towle answered “yes” to the question “was she intoxicated the night of the accident, in her opinion?” Emily also served the “Mongolian Mothers” to Katie. These oversized drinks have such a high hard alcohol content that they would raise Katie’s blood alcohol content level quickly. The Commission does take note that Emily was fired by Finders Pub subsequent to the incident and may have personal issues with the establishment. However, her testimony seemed to be straightforward and similar to the accounts of other patrons.

Jason Lucas’s testimony of Katie’s condition at the bar is different from Emily, Meghan and Alicia. However, for a person who did not think Katie was intoxicated, he seemed very interested in her ability to drive home. His testimony regarding the end of the evening seems to contradict his testimony regarding the previous two hours.

The testimony of Daniel Mitchell carries less weight then the other four witnesses’ because he interacted with Katie McAloon very briefly on March 28, 2005.

The policy of a free shift drink was obviously in place at Finders Pub. In fact, it seems that the policy was taken steps further by staff at Finders. It appears that free drinks were commonplace.

There seems to be enough indications as to Katie McAloon’s condition prior to her last service of alcohol from the bartender to determine she was intoxicated. Witnesses saw her stumble, fumble cigarettes and bounce off a wall prior to her last drink. She was served and there seemed to have been a lot of concern about how she was getting home.

Therefore, the licensee is found in violation of c. 138, §69 sale or delivery of an alcoholic beverage to an intoxicated person (1 count) and, therefore, the Commission suspends the license for a period of 120 days of which 30 days must be served. The remaining 90 days of this suspension will be continued for 2 years from the date of this decision, providing no further violations of Chapter 138 or Commission regulations are found. This suspension was imposed because this is the first offense for the licensee. Also, the Commission finds the licensee violated 204 CMR 4.03(1)(A) offering or delivering free drinks and, therefore, suspends the license for 3 days. The total suspension is 33 days to be served, in the aggregate, with 90 days suspended for 2 years as stated above.

ALCOHOLIC BEVERAGES CONTROL COMMISSION

Robert H. Cronin, Commissioner __________________________________________

Eddie J. Jenkins, Chairman _______________________________________________

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.