Present: William R. Griffin

Town Administrator

Mark A. Tirrell, Chairman

Linda M. Zuern, Vice Chairman

Richard E. LaFarge, Clerk

James T. Grady

W. Thomas Barlow

Meeting was called to order

Salute the Flag

Selectman Zuern made a MOTION and SECONDED by Selectman LaFarge to approve the minutes of August 19, 2003 as presented in the amended set.

VOTE 4 IN FAVOR and 1 ABSTAINED (Mr. Grady)

Selectman Zuern: Page 21 – Next to the last paragraph change wording from "continuance until next week in order to obtain plans from the engineering department for the Selectmen’s Packet" to "Selectman Zuern asked for plans from the Engineering Department to be included in the Selectmen’s packet for the next weeks meeting."

Mr. Grady: Page 14 - About half way down the paragraph change the word " anyone" to "anyway".

Selectman Zuern made a MOTION and SECONDED by Selectman Grady to approve the minutes of September 9, 2003 with those two corrections. UNANIMOUS VOTE

Joseph Carrara, Bourne’s Delegate to the Barnstable County Assembly of Delegates discussed the Conservation Restriction surrounding the Assisted Living site in Pocasset. Many of the sub-Committee to the Assembly of Delegates doesn’t want bicycling to be allowed. Mr. Carrara feels we should open it up to as many uses as possible. Presented a plan to the Conservation Commission for review. There were several questions so he and the County Administrator will make a presentation to the Conservation Commission the 1st week of October. Will answer questions and receive input before this goes to a vote before the Assembly.

Ground breaking for the Assisted Living site is scheduled for October 17, 2003 at 1:00 P.M. and everyone is welcome to attend.

At the end of fiscal year, there was approximately $665,000.00 still remaining as a surplus.

The Commissioners would recommend about $200,000 to go into some type of stabilization fund. Hoping to return a little back to the Town but will also be listening very strongly to the Human Service Agencies who have also received cuts.

Selectman Barlow said Mr. Carrara was very kind to the Board in forwarding a letter to the Governor regarding the lease agreement and funding for the Bourne Schools. Senator Murray indicated that she will consider funding the Bourne School System and federal monies though line items in the state budget. Selectman Barlow asked Mr. Carrara to extend his support and send a letter to Senator Murray supporting the Town of Bourne to seek funding from the state for educating federal students. Mr. Carrara said he would absolutely send a letter in support and contact her office by phone.

Selectman LaFarge went over all correspondence that was received.

Mr. Rindone is the Town Administrator in Princeton, MA. He also introduced the Town Administrators from the Towns of Brewster and Sandwich.

Explained what the Pilot (Payment in Lieu of Taxes) Program is. If an individual sells land to the state it then comes off tax roles. In order to get money it is a legislative issue and has to be budgeted and appropriated at the legislative level. State land is valued every 5 years. Last time it was valued on a statewide level was in 2000. Department of Revenue values the property by hiring an appraisal firm and appraises all states land. During the last appraisal, many communities with seashore state land or beaches, the land was devalued. Bourne not only loosing money in the PILOT payments but land was also devalued.

S.T.A.R. (Stand Together Act Responsibly) which Bourne is a member. There are approximately 95 communities that are members of S.T.A.R. State auditors identified the top 30 losers in the state, meaning in whole dollars in terms of money that is received as opposed to what you are supposed to receive and Bourne is #9 on the loser list. S.T.A.R. is looking for full funding in FY2005. This year Bourne lost $694,000 in PILOT payments and land was devalued.

Looking for 3 things:

1. Write the Romney Administration and ask for full funding of the PILOT Program.
2. Contact your Senator and State Representatives and ask them to support the full funding of the PILOT Program.
3. Look at local services – what you’re providing for state owned land i.e.: Fire, Police and ambulance

Mr. Rindone provided Town Administrator with a spreadsheet that needs to be completed. Mr. Griffin suggested that all communities’ use a common way formula to determine the dollar value. This will prevent wide variances between communities.

Selectman Barlow made a MOTION and SECONDED by Selectman Zuern to provide a letter of support and send to the Romney Administration with copies to our legislative delegation and key legislators. UNANIMOUS VOTE

Selectman Tirrell said that this is a continued discussion relative to a proposal that is an article of the upcoming Town Meeting for rent control for mobile home parks in Bourne. The proposal authorizes the Selectmen to file special legislation.

Bob Pritchard is the On Site Manager of the Pocasset Trailer Park. He wanted to rebut some of the comments that were made at the last meeting. In 1994 the rent in the Pocasset Mobile Home Park was $188.00 per month. In 2003, rent was $288.00 per month with $12.00 going to the town for taxes. In the past Mr. Pritchard said he would go and put a note on the door indicating that the rent for the next month would be increased. Approximately ¾ of the tenants would pay the rent increase and a few never paid the increase saying they were not notified, found no notice on the door and no notice was hand delivered to them. Went to the Attorney General’s Office and under "Tenant at Will", they could impose a rent increase by sending letter of eviction. This must be done in complete compliance with the Attorney General’s Rules & Regulations. Mr. Pritchard provided the Board with information on Rent and Additional Fees.

At the last meeting, comments was made that there were 77 homes in the Pocasset Mobile Home Park that have signed the petition claiming that they were in favor of rent control. Went to Town Hall and got a list of registered voters for people who signed the petition. There were 32 houses in the Pocasset Mobile Home Park that actually signed this petition claiming that they are in favor of rent control.

As of September 1, 2003 there are approximately 110 occupied lots in the Pocasset Mobile Home Park. They are licensed for 139. Out of the 110 lots there are 14 seasonal rentals, 32 lots are owned by landowners, 22% are retired residents and 41 are primary homeowners.

Mr. Pritchard introduced his Attorney David Clubknoff who represents Pocasset Mobile Home Park. Saw tape of last meeting and it appears that most of the emphasis was on rent gouging. The termination of the lease is a legal technicality. The letter the tenants received wasn’t meant to be threatening. It wasn’t the intent that people were going to be kicked out.

In order to justify rent control legally, you need to find a form of an emergency. There is over $40,000.00 in engineering and scientific deep wells to go forward with the septic system. In this case, where is the emergency? This is not an extraordinary increase over a period of 10 years and it’s not out of line with surrounding communities. Pocasset Mobile Home Park is being forced by Department of Environmental Protection (DEP) to put in a $2,000,000.00 treatment plant. If the increase starts know it will help pay for the engineering and experts.

Mr. Clubnoff feels that $300.00 per month, compared to the market, is not gouging. There have only been 2 increases in 10 years. Presented the Chairman and Clerk a memorandum, which came from the Peabody Rent Control Board showing the attorney fees for litigation and budget for the Board.

Selectman Zuern said it would be helpful for the Board to see the budget, which Mr. Pritchard would rather not provide. Selectman Zuern put some figures together based on the number of units in the park and the monthly rent. It was calculated that after 1 year the park made $300,600 and over the last 10 years the park made $3,000,000.00. Was some of this money put aside for the improvements or was this all spent? Mr. Pritchard said since this last rent increase there has been money set up in a separate account. Don’t have exact figures on the proposed work, only estimates.

Selectman Zuern asked if money has been put aside in the last 10 years? Mr. Pritchard said not in the last 10 years.

Selectman Zuern also figured the increased amount and after 10 years it comes to $3,960,000.00 which is more than what the septic system is going to cost. If you don’t want some kind of rent control, would you be willing to make an agreement with the town where you will have leases with your tenants for the next 10 years? Can you live with the amount of $300.00 and guarantee that your rent is not going to go up? Can you work out a budget and be willing to work with the town so that we don’t have to have rent control?

Attorney Clubnoff said that the town is determining that this is legitimate and this is enough and we don’t believe you can make any more than this. The whole premise on your question is that somehow he doesn’t have a right to make more than a certain amount.

Selectman Zuern asked the Attorney if he feels that an agreement with the town is the same as a Rent Control Board? Attorney Clubnoff said it is probably worse. A Rent Control Board could adjust to things that have changed over the period of the agreement compared to signing a legally binding agreement.

Selectman Zuern asked what percentage of the money taken in goes towards improvements in the park each year? Mr. Pritchard said 25% of the past rent increase is going into park improvements. Improvements include engineering, planning, working with DEP and attorney fees.

Selectman Zuern asked if you’re making $300,000.00 per year, couldn’t you set $10,000.00 aside each year to provide clubhouse and pools and paved roads to the park? Attorney Clubnoff said not with a $2,000,000.00 bill coming in. The Sewerage Treatment plan will be going into effect approximately 2005.

Selectman Barlow said back in 1988 when he was first elected, he constantly had complaints about the Pocasset Mobile Home Park. Roads were in disrepair, problems with the trailers being abandoned, sewerage and mailboxes. Board tried to work with the owner to remedy the situation but have been very unsuccessful. Spent several years dealing with the mailbox issue. Couldn’t believe how unreceptive the owner was to provide service to his clients. The Board of Health has also been involved with the park to remedy situations. Feels this is an opportunity for the town to step in. The community will have an opportunity at Town Meeting to decide for themselves.

Chairman Tirrell asked if the park is under served by fire hydrants? Mr. Pritchard said there are 2 fire hydrants which 1 is located on Barlows Landing Road and the other in Babe’s Acres.

New water mains will be going into the park same time the treatment plant is being constructed. There will be more hydrants put into the park at that time. All roads in park will be paved at the completion of the project.

Chairman Tirrell asked Mr. Pritchard to respond to complaints about sewer overflow. He stated people flushing items down the toilet causes sewer overflow. Such items as rocks and rags were found in the lines.

Mr. Pritchard spoke with 2 of the previous presidents of the Tenants Association and has replied and has done things that they asked him to do in the Mobile Home Park. They’re several members whom sit on the Board for Mobile Home Park who are holding money in an escrow account from the past problem with the water. This money was never paid that back to the Pocasset Mobil Home Park and is well over $6,000.00. Other members sitting on the Board have illegal structures built to their mobile homes without a building permit and no park approval. Willing to speak with members in the Pocasset Mobile Home Park and negotiate problems if they were rule-abiding tenants of the mobile home park.

Attorney Clubnoff said there is a number of problems between the tenants and management but didn’t hear a question which would be resolved by rent control or related to rent control.

Chairman Tirrell said there is poor communications, notice of termination of tenancy is a very unfriendly letter and could be improved. There is serious communication and it’s hard to listen to complaints and rebuttals and not be stirred by some action on behalf of the citizens of Bourne.

Several tenants from the trailer park voiced their opinions on rent control.

Attorney Adams spoke on the City of Peabody and rent control. Rent control will only pause for the books to be open. The justification for this rent increase is now, the fact that there is a extensive sewer project. If park owner is going to levy a rent increase based upon a large capital improvement then it has to be done in a particular manner.

Jim Mulvey said he has no vested interest. Suggest that the Bourne Housing Partnership Committee looks into this and determines if the rent increases are justifiable.

Gloria Steele said she been there approximately 27 years. Park is unsafe because of fire, sewer, roads with no street signs to name a few. Presented pictures of potential violations to Chairman Tirrell.

Rules and regulations for the Pocasset Mobil Home Park are posted on the back of the sign that says "Pocasset Home" at the entrance of the park. Every tenant in the Mobile Home Park received a copy of the rules & regulations.

Selectman Barlow made a MOTION and SECONDED by Selectman Zuern to lay on the table the discussion on item #7 on tonight’s agenda. UNANIMOUS VOTE

Took a brief recess

Meeting reconvened

Chairman Tirrell opened the meeting of the Board of Selectmen and re-opens the matter of Smith Enterprises, Inc. I will recall for the camera, if nothing else, I think everyone else knows what’s going on. That the meeting before last we heard the Police Departments case and will check to see if it’s complete but relative to a complaint that an intoxicated person was served at Smitty’s, and I’ve lost the date, on April 27th and 28^th in the year 2003 and we know can continue that hearing. For I pose a question to Chief, I will turn to my colleague.

Mr. Grady said yes Mr. Chairman, as you may know I was not in attendance at the first night of hearing on August 19, 2003 and as a result I will excuse myself from the second evening but I would like the public to understand why I’m not sitting on the case tonight. Thank you.

Chairman Tirrell says thank you Mr. Grady. Lucky you.

Chairman Tirrell: Chief Ford, my notes show that we were not yet closed your portion of the hearing. Do you have have more to present to the Board relative to the prosecution of the complaint?

Chief Ford: Basically, I had made, I was going to make a stipulation to Mr. Wagner to withdraw the quest on the hindrance of blood. Since the intent to put into evidence that we, he is going to argue the weight that this should be given by the Board. I also have received a complete medical report from the Law Offices of Wade M. Welch representing the defendant. It’s the complete medical record from Brigham and Women’s Hospital and it just goes into several objective observations of different people who have treated him. The subject for the sake of argument, and I don’t know if the Board has made a ruling to accept it. That’s basically it. If you want me to introduce the complete record of statements showing that the there was an order for Ethanol. Testing is Registered Nurse along with, it doesn’t give the protocols, and that will be an argument and some observations from the doctors that described that patient as a, basically, the unidentified male was approximately a 30 year old gentleman who was intoxicated and was hit be a motor vehicle. So, if I can get them in I can introduce his medical records that were produced to me by his attorney, if not, I’ll waive that and just go from here.

Selectman LaFarge: If I could comment on, on the evidence, Chief. The Court of Appeals on September 4^th of this year, we failed a case log in Massachusetts and this type of hospital records certainly is admissible as a conception to the hearsay rule #1and #2 as an administrative body we are not bound to ignore hearsay and can take that into testimony. So I want to say if the Chief should offer it and take

Attorney Wagner: Can I be heard? There is no dispute on the rights to have the medical records introduced but the and so the rules to that would seen the administrative body, as far as hearsay, that has nothing to do with medical records. The medical records in Chapter 233 Section 79G if that is the same case as the Appeals Court decided is not practical under this (inoperable) and it has nothing to do with this matter. But very simply, 233.79G is not a rule of evidence. It’s a statutory requirement. And the requirement is although they are submitted into evidence without the spoken word of witnesses. That’s the hearsay rule and they are required to comply with 79G. This is the first time I have ever seen these records and 79G requires, not as a rule of evidence but as statutory requirement, this Board or any other Board, or any other court, that they have to be provided 10 years, 10 days in advance and there has to be an affidavit certifying that they are the complete record of the hospital. Those are the 2 criteria of 79G. I believe I pointed that out in my memorandum. I have never argued before you today nor did I argue before you on the last occasion that the rules of evidence has to be adhered to before this Board. The statutory requirements and the CMR requirements and the protocol that we thought were in those records have to be adhered to and are not labeled. They are not rules of evidence. Appeals Court case that was just cited; abundantly familiar with it says very simply that a hearsay rule does not apply to these records. No only when someone comes in to testify and it’s their written report, they are required to testify to it and not use the report. Exception with medical records but that does not change the requirements of 79G. I have not been ablade of that point here, you can rule as you please and I will deal with it accordingly. I did cite the cases for you, nothing has changed and they haven’t been overruled. There is no change in that, that law it’s as old as (inoperable). The original decision on that, that hasn’t been touched was started by Chief Justice Hale, the former Town Counsel of this town amongst many other towns. It’s nothing more than a repeat of it but it doesn’t change the application of 233.79G. That’s all I have to say.

Chief Ford: Mr. Chairman, I tried to get a hold of Town Counsel. I received a memorandum submitted by Attorney Wagner at 4:00 P.M. and I was unable to get a hold of with Town Counsel. I did get a hold of Counsel for the MA Peace and I posed a question Can I introduce the medical records that were given to me by Law Offices of Wade M. Welch that represents the person who was injured and at a Selectmen’s hearing, where it is an administrative hearing and does that rule apply? He referred to me that the rule would be applied in a court of law and if the next step, I am represented by counsel and the Attorney Gus Wagner or whoever represents the client would get a copy in compliance with the law. If this hearing, I’m not an attorney and if there is any objective case to the Board at an administrative hearing and the Board of Selectmen, then that rule does not apply. Town Counsel would be the one that would make the ruling for the town and I wasn’t able to get a hold of him.

Chairman Tirrell: Would you excuse us for a minute. What I’m hearing colleagues is that there will be an argument whether this is appropriate evidence for us to repeat at this time because of the delay because it was not received by the defense before. Am I hearing the right thing? And does that weigh on whether we should except it into evidence or not.

Selectman LaFarge: The arguments against the town’s case seem to be a combination or overlapping area that should be discrete etc. The referral under the (inoperable) the law but sometimes the word the law is really referring to criminal statue. Sometimes it’s referring to the civil law that covers courts. Sometimes it’s referring to rules that don’t apply here. Sometimes it’s referring to the MA rules of civil procedure. Sometimes it’s referring to MA rules of criminal procedure. Its still all that comes to this as administrative body that we can take any evidence which has some (inoperable) over liability. What I’m viewing know is accumulative evidence because we have already heard eyewitness testimony from experienced police officers. We have the circumstances of the case which, having testifying to my people who have observed. We have the medical records, that was offered at the last hearing and (inoperable) 10 days has expired and Mr. Wagner has decided not to call the person who prepared that record. We have visual evidence which, I haven’t seen so I can’t say, just accumulative but I’m curious to see it. In short, what we’re not talking about here is what happened and I think that’s what we should deal with that. Very simply, let’s get to the facts of the case.

Attorney Wagner: Mr. Chairman, I’ll make it easy for you in the process. The 10 day requirement, although I’m indicating that it does apply by the statue, it not as important to my client and should not be as important to the Board, although the Board is bound by (inoperable) but that up to you to decide but the spec that relates to the records that go before you for your consideration clearly applies. It has nothing to do with court; nothing to do with criminal, 233.79G applies across the board. It’s a statue that applies to you when you get up in the morning and it’s a statue applies to you whether your involved in a criminal action, civil action or domestic relations action. It is a law that allows for an exception to the hearsay rule provides that someone complies with it. It requires the records to be certified and it requires an affidavit to be submitted with it. You can read it and you’ll see that there is no fancy footwork on something that overlaps. Very simply, that statue is a broad statue that everyone who appears before an administrative body and seeks to introduce medical record is (inaudible). No one is trying to hide anything from you on that. The 10 day rule would not be solved and no person with any criminal background or civil background would even be saying it would by introducing it and then say wait a minute 10 days has know gone by. It has to be done on the outset. But our main, concern in which it should be your main concern, is the authenticity of the record and not necessary the 10 days. Even though you are bound by the 10 days as well.

Selectman LaFarge: Your still missing the point here. 233.79

Attorney Wagner: Don’t suggest that I’m missing something it sir

Selectman LaFarge: Look, we’re not police. Chapter 233 Section 79 meets with the exception to the hearsay rule. The hearsay rule doesn’t apply to us in the first place so we don’t an exception to take this. If you want to challenge the authenticity, the (inaudible), the weight, please do so.

Attorney Wagner: I’m not saying anything more, OK

Selectman Barlow: Mr. Chairman, this is an administrative hearing. Whenever we feel that we are going into a serious legal course of action, the Board brings on Town Counsel for the hearing. He also acts as hearing officer and counsels the Board, Mr. Chairman through the process. We are not at that level. This is simply a general administrative hearing. I don’t think that it is necessary. I think we are acting at an administrative level on a very serious matter. I think the Board Chairman should rule, right or wrong, and go forward and go through this hearing process.

Chairman Tirrell: Thank you for the counsel. Chief Ford, I think you should proceed with your case and introduce whatever evidence you have and introduce that you believe it makes the case.

Chief Ford: Basically, what I’m going to introduce is the portion of medical records for Robert Gosson as presented by his attorney. A letter from the Law Office of Wade M. Welch, his representative, his attorney and in that outline first part has already been introduced as forensic medicine of blood and how it was taken complete report. Also have memo that was presented to the Board and also gave to Attorney Wagner. In this you’ll see the first tag after the blood was a laboratory work that was ordered with the order #2020208 which is for ethanol toxic screening. It was taken by a Registered Nurse Nancy A. Ruksnaitis, RN at 4/28 at 11:45 A.M. Basically; it is just to show that the lab did ask for alcohol testing. I don’t have the (inoperable) calls, so that can be argued latter. The first report that I got from Dr. Jenson, David Jacobson, he refers to a 20 year involved in a motor vehicle accident was drunk at the time of (inoperable). The last paper refers to by a Dr. Edward Rodriguez, MD and his indication this unidentified mail was approximately a 30-year old gentleman who was intoxicated and those are just observations of the medical staff. Then there were also that shows stamp by the hospital.

Chairman Tirrell: You mentioned Chief, don’t go to far because I may need your fingers here, you mentioned 3 items and I see one, two, three tags and you were talking about labeling them but I also see two more.

Chief Ford: You got basically, this is just the alcohol that’s already introduced. This one on the side is just a talking about ethanol abuse. It’s just more symptoms of alcohol. Ethanol abuse. Basically, it’s two doctors’ statements that I will be introducing this for.

Chairman Tirrell: But we need to make this as an exhibit. We went through A – E in the first session. We are now marking this exhibit F and labeling it portions of medical record.

Chief Ford: Basically that’s the Police Departments case.

Chairman Tirrell: Thank you Chief.

Attorney Wagner: I’ll be very brief. You do have my memorandum that I was able to finally get over to you this afternoon and I will start off with the witnesses that I will call. I just point out a couple of things for the hearsay rule. It does not apply; I will just read from the Police report itself. Clearly, what the standard is in this case, how serious the injuries were of Mr. Gosson who have left the premises and left the property and gone elsewhere. I ask that you recall the evidence, which you have already heard to some extent. But the issue is whether or not the license holder served liquor on the premises to an intoxicated person and I have cited the distinctions between under the influence and intoxicated and clearly the distinction between subjective and objective. So the test would rule alternately have to decide, and there is no argument on the burden of proof on this. The burden of proof is exactly that this is a civil case on the weight of the evidence. That’s exactly the same as any civil trial. Only a criminal trial involves a different burden of proof. With regards to what then becomes a standard for a license holder and exercising and complying with Section 69. Under the Influence the case law is not only complete, I explained some cases, those with criminal cases because usually operating under and under the influence its on the criminal side of the court but the standard rule is being applied. In the Connolly case, if you take the time to look it up, you will find about 40 cases cited. You can run through them and they go back to the year 2001 – 2002. And it remains the same. That the recognition by the courts and by the law and by the legislature that under the influence is subject there are occasions where there are red eyes and slurred speech but intoxication there is much greater degree. It’s where a license holder should stop serving. Period. They look at the person and this person has had enough and that is the end of the night. That’s were the standard is that you’re raising. I pose the arguments that we already made so we can be very quick on the blood testing and the protocols and those protocols are not rules or evidence. They’re requirements that you’re required to follow. Every administrative body is required to follow. The reason for that is simple, and maybe some of you caught recently on television, it was only a few nights after we were last here was the train wreck that occurred in Great Britain. In that situation, if you caught it, very simply, they could figure out how this particular engineer had go through a series of stop signs and the blood alcohol was, as somebody with a medical background, was almost above .24 which is not only intoxicated but is close to comatose from alcohol and he was not a drinker, had a family of 2 children and a wife and there was no evidence that he consumed any alcohol at all. What was interesting about that and that’s why the protocols are in place, requirement is in a serious incident including death by serious injury, the body produces alcohol and so the epical reading from the body that is in the hospital and is in serious trauma the alcohol production becomes an issue and therefore there has to be a protocol to follow. Mentioned that it was not followed here but that is all I can say to that. 79G speaks for itself and you will rule on that (inaudible). Motor vehicle standard that was referenced and will put into evidence by weigh of reference and contacting the Department of Public Safety. The standard is .04 has absolutely nothing to do with being under the influence and has nothing to do with intoxication but .04 can be a little more than 1 can of beer and the reason for that standard under that section that was inquired by one of the Board members is that the requirements of Chapter 90F and Section 10 & 11 as well as the CMR regulations prohibit commercial drivers of heavy equipment whether they are on or off the roadway from consuming any alcoholic beverage whatsoever. Therefore, that’s the reason for that standard. Saying it has nothing to do with being under the influence, has nothing to do with being intoxicated, obviously if they took the breathalyzer reading and somebody is .08 they have 2 violations 1) the administrative aspect and the other issue is that we (inoperable) before. Mr. Clemons testified, this is not a just rule of evidence, it is a requirement of preservation before any Board and I said (inoperable) very simply, if a person makes a prior statement that is not under oath and then makes a different statement when they are under oath, the prior statement can not be used to prove the truth. It can only be used to attack the credibility of the witness on what the witness said under oath. So when Mr. Clemons testified two to three beers (inaudible) that you either accept that or reject that as matter of law but you can’t then say well he said apparently to an investigator earlier five beer. That part can only be used to attack whether that is a true statement or not. There is no exception to that for administrative bodies. No exception to that no matter how informal you may feel (inoperable) here today. I suggest to you that Wilson vs. Jeffrey’s might be able to help you. Wilson vs. Jeffrey, by the way is not a criminal case it’s a civil case. The conduct of Ms. O’Neil and the reading of .06 a few hours later should speak for itself and that’s for you to decide on how you are going to rule on that. But a .06 by the simulation factor protocol before you, I clear that although there is in the (inaudible) of alcohol alternately a decrease in the hour or two that decrease is insignificant and so whatever her level was and hour or two before, three hours before there was not a significant difference. For the record though I point out to you in the police report which I believe and correct me if I’m wrong that you all have before you there is a statement taken from a customer by the name of Ronald Savioli who was known to the establishment because ultimately the statement was taken from the bartender and he said that his nickname was Sav. He, according to the police report is a Falmouth Police Officer. He is the only Police Officer who actually was right there when the incident occurred. Right they’re when they were told to leave. There is no evidence to the contrary in this case that when Mr. Savioli makes his observations that they were not served after that. After the fight they were told leave and do leave and never return. (Inaudible). So what does this Police Officer do who is seated in there with no ownership to the bar, no interest other than being a patron the same as anyone else. What does he say on a crucial issue that’s before you? So only and I’m reading from the police report and I’m reading from it know "Savioli say that other than thinking they were strange he didn’t think they were injured, intoxicated or a need of any other service when they left". So I suggest to you that you weigh in whether you can decide wherein last the truth and strike that by using that in part. In addition to that I’m going to call my witnesses, two witnesses and we will be very quick on that one. I did indicate to you that I would have to called the toxicologist from the hospital because that would be a test to the protocols. The cost was absolutely prohibited to bring an expert who we would have to pay an expert fee. We were advised by Counsel at Brigham & Women’s and that was something that one could not possibly justify at this stage. That is the only reason why I pointed out that although we indicated that were would like to do that, there still did not do any right to shift the burden. The burden rests in our view and I will submit to you for that purpose, and I believe I did in my memorandum so I’ll only repeat it quickly that the burden for that proof rests with the complainant and not with the license holder. The license holder doesn’t have to make that proof, that proof hasn’t been make and we feel that because not being made goes with the weight and lack of credibility of the evidence presented. I will know call two witness. One will be the bartender who was there and the other a patron who is hardly ever other than (inaudible).

Chairman Tirrell: Excuse me Attorney, go ahead and do that right know if you would please. We’re either to the matter of swearing.

Attorney Wager: One needs to be sworn in again and one does not. The bartender was here at the last occasion. If you would like swear him in I will definitely have them both stand.

Chairman Tirrell: Would both you of the individuals that Attorney Wagner will call please rise and Chief your all set so we are not expecting any other witnesses. Would you raise your right hand and swear that in the matters when you speak on this matter you will speak the whole truth and nothing but the truth so help you God.

I do

Attorney Wagner: Mr. Lally would you be kind enough the keep your voice up and direct your remarks to the Board. Give the Board your full name and your residential address

Mr. Lally: Thomas H. Lally, 83 Roundhouse Road, Bourne

Attorney Wagner: And how long have you lived in Bourne?

Mr. Lally: Little over a year

Attorney Wagner: And where are your routes please?

Mr. Lally: Waltham

Attorney Wagner: And your educational background?

Mr. Lally: High School, college

Attorney Wagner: And what did you pursue in college?

Mr. Lally: English Lit

Attorney Wagner: And did you take on any other work when you got out of college?

Mr. Lally: I taught for a couple of years substituting

Attorney Wagner: And know what type of work do you do?

Mr. Lally: Run heavy equipment

Attorney Wagner: Did you have an occasion to be in the Smitty’s, and let me go to the date to make sure that I have it right, on the evening of April 27^th.

Mr. Lally: Yes I was

Attorney Wagner: And what time did you arrive?

Mr. Lally: About 8:30 probably 9 9ish.

Attorney Wagner: And if you would in a narrative tell the Board what were the circumstances on how you happened to go to Smitty’s?

Mr. Lally: Well, we worked on my friends boat, it poured Saturday, we worked Sunday and on Sunday night we were coming home and he was dropping me off, he lives in Milton. He had some Keno tickets from Friday night so we stopped there to see if I won any money and had a beer.

Attorney Wagner: Are you a regular patron of Smitty’s?

Mr. Lally: No, I don’t go in there often.

Attorney Wagner: On this particular evening, how long did you stay?

Mr. Lally: The Red Sox were playing, played about 5 games of Keno so at least an hour I would say.

Attorney Wagner: And do you have any connection with Smitty’s by the way other than being a patron or ownership connection or friendship connection with the owner, bartender or anyone connected with establishment.

Mr. Lally: Nope. I didn’t actually meet him until I guess after the incident.

Attorney Wagner: And after the incident did you meet, when you say meet him are you talking about Mr. Smith, Daniel Smith.

Mr. Lally: Yes ya. Because I came in I think either that Wednesday or Thursday and the bartender said he was talking to her. So and he walked over and talked to me.

Attorney Wagner: And asked you what?

Mr. Lally: Ya, he asked if I knew her, how I knew her and what happened? I just told him that we talked and she’s a wacko and I left.

Attorney Wagner: And your talking about Mary O’Neil?

Mr. Lally: I know her name is Mary I didn’t know he last name.

Attorney Wagner: So lets go back to when you arrived, you’re with your friend. Is this correct?

Mr. Lally: That’s correct.

Attorney Wagner: Know was the establishment full or how many people would you recall were there?

Mr. Lally: Sunday night, I don’t know, I forget. Probably about 20 – 25 people. I would assume.

Attorney Wagner: And how many women did you see?

Mr. Lally: I really off hand can’t say but I know she was there because she had like a scramble book. One of those scramble wordbooks and she was standing there doing it and looking around. I thought it was odd.

Attorney Wagner: Did she then make contact with you and your

Mr. Lally: Yup, we went outside to have a cigarette and she followed up out to bum a cigarette from us and she was doing her scramble book and talking and you know

Attorney Wagner: And your age by the way?

Mr. Lally: I’m 48

Attorney Wagner: And you’ve been alcoholic beverages before?

Mr. Lally: Yes

Attorney Wagner: You observed people who have had too much to drink?

Mr. Lally: Ya

Attorney Wagner: You observed you have in your opinion under the influence of what they consumed?

Mr. Lally: Of course

Attorney Wagner: And have you observed that in your opinion had to be become even further influenced by alcohol in the accompany that they were intoxicated or drunk?

Mr. Lally: I’ve seen people put in cabs before, ya.

Attorney Wagner: All right. Was this person affected in your opinion by the alcohol at the time you were talking to her that she may have consumed that day?

Mr. Lally: To be honest with you, I can’t tell because I didn’t talk to her for that long but when we were talking she wasn’t drinking and she was just bumming the cigarettes from us.

Attorney Wagner: And did you understand what she was saying to you.

Mr. Lally: Yes

Attorney Wagner: And did she give any indication that she left you with a concern that this was an intoxicated person?

Mr. Lally: No

Attorney Wagner: What else happened that evening?

Mr. Lally: Well, we were talking and I asked her how What are you doing here? What’s a girl doing here and she said that she got up, got in my car took some amphetamines and drove and this is the first place I saw so I stopped. That’s quote unquote and that’s when I said to my buddy and said NBT we’re out of here. It means nothing but trouble.

Attorney Wagner: Thank you for the education on that.

Mr. Lally: It’s slang

Attorney Wagner: So you stayed in the establishment for a further period of time?

Mr. Lally: Ya, until our games were done then we left.

Attorney Wagner: So somewhere between 10 and 10:30 you think you left?

Mr. Lally: I would say it was probably before 10:30 because had to work the next morning so

Attorney Wagner: And what type of work do you do?

Mr. Lally: Heavy equipment operator

Attorney Wagner: Just out of curiosity, are you familiar with the standard request for alcoholic beverages?

Mr. Lally: Yes, the license operator. You have to be.

Attorney Wagner: And what to you understand the standard to be?

Mr. Lally: .04 but if you go in hung over or anything like that it make a long day.

Attorney Wagner: And even with a hang over (inaudible) that residual alcohol could be a .04 reading.

Mr. Lally: Sure, your boss would send you home

Attorney Wagner: And do you understand that charges can also be brought against you if you (inoperable)?

Mr. Lally: Sure, I could lose my license and lose my job.

Attorney Wagner: Do you have anything further to tell this Board regarding this person?

Mr. Lally: No. I mean I just thought that she was a wacko. You don’t see many people in a bar room with a scramble book. I mean, that was just my opinion, my observation and I left.

Attorney Wagner: Except for her oddness, was they’re anything though that was oddness, which would lead one to you to think that she was an intoxicated person?

Mr. Lally: No, not at the time.

Attorney Wagner: Nothing further

Chairman Tirrell: Chief Ford would you like to cross-examine?

Chief Ford: I just have one or two questions. You stated that you were there for about an hour to watch the Red Sox and you went home about 10:30.

Mr. Lally: Went home around 10 – 10:30

Chief Ford: So you didn’t see the subject?

Mr. Lally: No, I did not.

Chief Ford: And she didn’t show you any of the amphetamines?

Mr. Lally: No, she did not.

Chief Ford: And she didn’t take any in your presence?

Mr. Lally: No, not that I know of.

Chief Ford: And do you believe everything that a person tells you when you meet them in a bar?

Mr. Lally: No, not at all. Its just she was it was strange. Like I said I saw the NBT and said let’s get out of here.

Chief Ford: No further questions.

Chairman Tirrell: Hang on just a second. Any questions from the members for this witness. Thank you very much, Mr. Lally.

Mr. Lally: OK

Attorney Wagner: Same instructions about keeping your voice up and I’m sure you won’t have any trouble. Could you please give your name and your residential address for the Board?

Mr. Sampson: Craig Sampson 1337 Shoot Flying Hill Road, Centerville

Attorney Wagner: And are you employed at Smitty’s?

Mr. Sampson: Yes, I’m a part-time bartender.

Attorney Wagner: And did you explain to the Board your educational background?

Mr. Sampson: High School, College

Attorney Wagner: What about your background in training regarding the serving of alcoholic beverages?

Mr. Sampson: I took a course in bartending and I also took a course here on, what do you call it, TIPS course.

Attorney Wagner: Did you successfully complete the TIPS course?

Mr. Sampson: Yes, I did.

Attorney Wagner: It might be misinterpreted as its not tips that you receive. Know on this particular evening, can you tell us what time you came to work?

Mr. Sampson: 6 o’clock, 6 PM

Attorney Wagner: And the person know known as Mary O’Neil, did you make observations of her when you arrived?

Mr. Sampson: I only knew what the bartender before me told me and she said that she was in there most of the day and she only served her 1 beer all day and I had no contact with her.

Attorney Wagner: And at what point and time though there was an incident that she was involved with. Is that correct?

Mr. Sampson: Yes

Attorney Wagner: When you said you had no contact, where was she during the course of the evening?

Mr. Sampson: Basically, when I got there she may have been, I didn’t really notice her. She might have been milling around the other customers at the bar because there was about couple of dozen people in there and after that I didn’t know where she was until the incident occurred.

Attorney Wagner: And when you say the incident occurred, are you talking about the fact that she became involved in a scuffle.

Mr. Sampson: Yes I am

Attorney Wagner: with another patron. In what area in the business was that located?

Mr. Sampson: the poolroom in back

Attorney Wagner: And how is that situated compared to

Mr. Sampson: separate room beside the bar, the back room

Attorney Wagner: And how many people were back there during the course of the evening lets say from 10:30 11:00 until 12:00 or thereabout?

Mr. Sampson: 3 people

Attorney Wagner: and the people you recall know who they were or can assist you by giving you some names?

Mr. Sampson: I don’t know them by name but I know the women and the 2 gentlemen.

Attorney Wagner: And the two gentlemen, 1 was Mr. Clemons who testified here at the last hearing?

Mr. Sampson: Yes

Attorney Wagner: And the other gentleman was Mr. Gosson, the gentleman who alternately was involved in a motor vehicle pedestrian accident. Is that correct?

Mr. Sampson: Correct

Attorney Wagner: Were there drinks served to the gentleman who you speak of Mr. Gosson or Mr. Clemens by any drinks during the course of the evening?

Mr. Sampson: They came up

Attorney Wagner: While they were in the back room and how would they get their drinks

Mr. Sampson: They walked in and went to the back to play pool and Mr. Gosson came out and, I thought it was strange because he asked me how much a beer and shot were and I told him. He went to the back room and he came out and I said he said I’ll have a Heineken, a Budweiser and a shot and I said it will be that much money and he paid me and he went back and that was it.

Attorney Wagner: And, with regards to him when he was before you ordering that drink, did you form an opinion as to his level of sobriety?

Mr. Sampson: You always do every time you serve somebody. You always look them up and down and see if they are capable, and make sure their speech is good and they can walk.

Attorney Wagner: And did you form an opinion as to his sobriety level?

Mr. Sampson: Yes, I did.

Attorney Wagner: And what did you see?

Mr. Sampson: I thought he was fine and sold him the alcoholic beverage.

Attorney Wagner: Know at some point and time close to midnight or thereabouts, maybe earlier, a scuffle occur in the area known as the pool room?

Mr. Sampson: Yes it did

Attorney Wagner: And what were the circumstances of that?

Mr. Sampson: I was in the back kitchen area not in view of the pool room but I was in there doing something but I don’t remember what it was but Sav, the other gentleman was sitting at the bar and I heard him say Oh my God and he walked out back and as soon as he said that I walked out and then I looked in the back room, the pool room, and I noticed Mr. Gosson getting up off the floor.

Attorney Wagner: And this fellow that you refer to as Sav, is that the name you know him by?

Mr. Sampson: Yes

Attorney Wagner: Is that Ronald Savioli the Falmouth Police Officer?

Mr. Sampson: Yes it is

Attorney Wagner: All right. Did he remove anyone from that scuffle?

Mr. Sampson: Like going out that room. He picked Mary, the women up off him.

Attorney Wagner: So that Mr. Gosson was sort of the not the prevailing party in the exchange. Is that correct?

Mr. Sampson: Yes

Attorney Wagner: What was the size of Mr. Gosson? How would you describe him?

Mr. Sampson: About 5’8, 100 pounds soaking wet.

Attorney Wagner: And Mary O’Neil?

Mr. Sampson: I don’t know, maybe about the same maybe a little heavier. You know she’s a little bit (couldn’t understand).

Attorney Wagner: And so that they are know on their feet and Mr. Clemons is standing there as well?

Mr. Sampson: He had been in the bathroom at the time.

Attorney Wagner: So the scuffle occurred while he was not in the same room? Were there conversations that you then had with the two and if so what was said?

Mr. Sampson: I told them to leave the premises immediately.

Attorney Wagner: What was the reason for the decision to leaving?

Mr. Sampson: Obviously, an altercation and something might happen afterwards so usually when there is an altercation you ask them to leave.

Attorney Wagner: Did it have anything to do with alcohol consumption?

Mr. Sampson: No

Attorney Wagner: Did you form an opinion as to, and lets take them one at a time, as to Ms. O’Neil’s, Mary O’Neil’s sobriety at the time she was standing before you after Mr. Savioli had broken up the encounter between O’Neil and Gosson?

Mr. Sampson: Well seeing I didn’t serve her from 6 o’clock on and this was 11:30 12:00, she was sober as a jug as far as I can. She even came up to me after the incident and asked me if she could wash her hands because she bloodied it obviously hitting him cause his glasses were on the floor so she must have come in contact with his glasses. So I told her to use the bathroom and leave right after that.

Attorney Wagner: And when she asked you if she could use the bathroom, did you have to ask her to repeat what she had to say, were she slurring her words?

Mr. Sampson: No. She was kinda upset that the altercation happened as well as Mr. Gosson and she was fine. Just that I wanted her go clean it up. I said do you need an ambulance she goes and shows me her cut, just a little scrape. I said you’ll be fine just wash it up and please leave.

Attorney Wagner: And when she walked to the bathroom, did she have any difficulty getting there? Did you watch her walk?

Mr. Sampson: I really didn’t watch her walk but she was standing right in front of me so

Attorney Wagner: Was she steady on her feet when she was standing talking to you?

Mr. Sampson: She was fine

Attorney Wagner: Was her speech clear?

Mr. Sampson: Fine

Attorney Wagner: Were her eyes clear?

Mr. Sampson: Yes

Attorney Wagner: Is there anything that led you to believe that she was intoxicated person at that time?

Mr. Sampson: Nothing

Attorney Wagner: And was she long in the bathroom? Did you have to go in there and (hard to understand)

Mr. Sampson: She basically, probably washed a little bit with a rag.

Attorney Wagner: Did she follow your instructions to go to the bathroom and then leave the premises?

Mr. Sampson: She did

Attorney Wagner: Did she try to stay in the premises when she came back out. So she wasn’t troublesome at all.

Mr. Sampson: No

Attorney Wagner: She wasn’t argumentative?

Mr. Sampson: No. She left with the other gentleman

Attorney Wagner: And Mr. Gosson know, let’s stick with him. You said you spoke to both of them. What did you say to Mr. Gosson?

Mr. Sampson: By me?

Attorney Wagner: Yes

Mr. Sampson: I told him to leave the premises immediately and he said why why why and obvious reasons why. There was a scuffle in the back and its time to leave so he left and I found his cell phone, somebody must of picked it up and put in on the bar. So I got his cell phone and went outside the parking lot and gave him the cell phone.

Attorney Wagner: What was doing or talking about at that time?

Mr. Sampson: He was despondent like crying and embarrassed saying that you know meaning that he got handled by a woman, I guess.

Attorney Wagner: Very simply sir, was there anything when you talked with him in the premises and said he had to leave and he was saying why why why, did this lead to believe in your mind that he was an intoxicated person?

Mr. Sampson: I don’t know.

Attorney Wagner: Was he responsive? Did you understand his words when he had to say when you said this?

Mr. Sampson: He just said why why why and why me and what happened. I assumed that he, when the other gentleman went to the bathroom that he tried to talk to the young woman and she took exception to whatever he said and hit him. So that’s it. I thanked him very much and he was just very despondent.

Attorney Wagner: In the police report, the officer says in an interview that he was incoherent and you said he was despondent. Do you recall ever saying that he was incoherent? Was he incoherent?

Mr. Sampson: No

Attorney Wagner: Do you know what incoherent means?

Mr. Sampson: Yes

Attorney Wagner: So, what you in fact, its so close, says he was talking according to the police report incoherent. I asked how? He said well not incoherent but despondent. And so, when you said the word despondent, what did you mean by the word despondent?

Mr. Sampson: Embarrassed

Attorney Wagner: And when you went out to him in the parking lot to give him the phone, obviously you had to have some, even limited conversation with him at that time.

Mr. Sampson: Yea, he took the phone from me and walked away and I walked back inside because the bar was left unattended so I didn’t stay out there for very long

Attorney Wagner: Did he have any motor reflex problems taking the phone?

Mr. Sampson: Not at all.

Attorney Wagner: I’m sorry

Mr. Sampson: He clipped it on his belt

Attorney Wagner: So he not only took the phone but he had mechanical skills to clip it on his phone?

Mr. Sampson: Yes

Attorney Wagner: And when he was in the bar, was he unsteady on his feet?

Mr. Sampson: Not to my knowledge, no

Attorney Wagner: Well, you were there serving him?

Mr. Sampson: No

Attorney Wagner: Did you see anything?

Mr. Sampson: No

Attorney Wagner: Was he slurring his words?

Mr. Sampson: No, not at all

Attorney Wagner: So, just before that he had his head down and that you took it that he was despondent. Correct? Know how long did you stay at the bar after oh by the way when you went out to the parking lot to give him his telephone, was anything going on out there? Did this argument continue on into the parking lot?

Mr. Sampson: No, because the other two patrons were still inside. The girl and the guy were still inside.

Attorney Wagner: So she was in the ladies room and Mr. Clemons was still in the premise?

Mr. Sampson: Correct

Attorney Wagner: And Savioli was there?

Mr. Sampson: Well I ran out and gave him the cell phone real quick and came right back. At that time I asked him to leave and they left.

Attorney Wagner: Did you know that Savioli was a police officer at the time?

Mr. Sampson: No

Attorney Wagner: Did you learn that afterwards?

Mr. Sampson: Yes

Attorney Wagner: How did you come to learn that?

Mr. Sampson: Through conversations with people.

Attorney Wagner: And was told that he was a police officer.

Mr. Sampson: Yes

Attorney Wagner: And what department did you discover that he was a police officer?

Mr. Sampson: Falmouth

Attorney Wagner: And so whatever he told the police during their investigation you had nothing to do with (hard to understand). Is this correct?

Mr. Sampson: Nope

Attorney Wagner: know, you then did what for the balance of your duties that night?

Mr. Sampson: I cleaned up and talked to Sav for till about 12:30. Usually I close at 1:00 and I shut down like at 12:30 and I was out of there by quarter to 1. Said by to Sav and drove away and noticed a few police cars out on Route 28 and I thought there must have been an accident or something cause I didn’t hear nothing. Sirens or anything so I just continued on my way home because I have to wake up at 5:30 in the morning. So 1:00 I don’t get home to 1:30.

Attorney Wagner: At sometime later did you discover that Mr. Gosson, one of your patrons have been struck?

Mr. Sampson: The next day

Attorney Wagner: Has anyone made any promises to you, rewards, threats or otherwise in exchange for your testimony.

Mr. Sampson: No sir

Attorney Wagner: No further questions

Chairman Tirrell: Chief Ford will like to ask you a couple of questions.

Chief Ford: Craig, you went to TIP course?

Mr. Sampson: Yes I did.

Chief Ford: OK, in that course did they tell you what objective observations you make if somebody has raised to the level of intoxication analysis? Did they talk about when they get loud.

Mr. Sampson: Right

Chief Ford: Arguementary?

Mr. Sampson: Sure

Chief Ford: Pardon

Mr. Sampson: Sure

Chief Ford: All signs of what?

Mr. Sampson: All signs of intoxication. Could be either or

Chief Ford: That wasn’t what I asked you. When was the TIP course done?

Mr. Sampson: When it was done

Chief Ford: And you went to the class

Mr. Sampson: They didn’t say intoxication.

Chief Ford: Did they tell you to look at somebody when they start getting loud. Do you remember the girl that gave the presentation how she exaggerated? Do you remember her telling you that you get loud and they arguementary?

Mr. Sampson: Yes. But I had but I had no contact with them contact with them at all.

Chief Ford: That wasn’t the question. How many people were in the bar that night?

Mr. Sampson: Couple of dozen.

Chief Ford: A couple of dozen. An how many employees did you have?

Mr. Sampson: Just me

Chief Ford: You were all by yourself?

Mr. Sampson: Yes

Chief Ford: And there were people coming to the bar buying drinks?

Mr. Sampson: Basically, they were all sitting at the bar.

Chief Ford: Buying drinks?

Mr. Sampson: Yes

Chief Ford: Sometimes more than one?

Mr. Sampson: Not usually.

Chief Ford: Nobody left the bar to play pool or go into the other room.

Mr. Sampson: There was nobody playing pool till later on.

Chief Ford: So everybody stayed at the bar all night?

Mr. Sampson: Yes

Chief Ford: At some stage, two individuals three individuals went to play pool.

Mr. Sampson: Yes

Chief Ford: Did you hear the testimony of Mr. Clemons that they were playing pool from 8 o’clock on?

Mr. Sampson: Yes

Chief Ford: What do you say to that?

Mr. Sampson: I said they came in later because um they were talking to her the whole time. They came in they came in, went to the back to the pool room and that girl she was probably there were probably another handful of people there and she walked out back after a little while and started talking to them out there.

Chief Ford: You don’t know what time they came in?

Mr. Sampson: It was 9:30 10 o’clock.

Chief Ford: So you think it was 9:30 so Mr. Clemons according to the reports that we have in here that weren’t (inaudible).

Mr. Sampson: He wasn’t in there at 8 o’clock.

Chief Ford: The other bartender served one drink to the female?

Mr. Sampson: Yes

Chief Ford: What did she serve her?

Mr. Sampson: A beer

Chief Ford: A beer

Mr. Sampson: Yes that’s the story

Chief Ford: Nobody took any drinks to the backroom that evening?

Mr. Sampson: Just um um Mr. Gosson?

Chief Ford: And what did he have?

Mr. Sampson: Heineken, Budweiser and a shot.

Chief Ford: And you don’t know who drank those?

Mr. Sampson: No I don’t

Chief Ford: Because you didn’t have a view of the back room.

Mr. Sampson: Right

Chief Ford: How was the Red Sox game? There was a game on that evening?

Mr. Sampson: Yes

Chief Ford: Was it a good game?

Mr. Sampson: It had extra innings

Chief Ford: Pretty close 13 innings

Mr. Sampson: I think so

Chief Ford: Did you get a chance to watch any of it.

Mr. Sampson: Not a lot, no, I usually don’t watch it too much.

Chief Ford: What were you watching?

Mr. Sampson: I was talking to Sav.

Chief Ford: Were you watching the 12 people at the bar the same time?

Mr. Sampson: Basically that’s what you do. You talk to them, you watch them and

Chief Ford: What is your primary employment?

Mr. Sampson: I’m a construction supervisor.

Chief Ford: Construction. So how long have you worked as a bartender?

Mr. Sampson: Sunday nights

Chief Ford: Just Sunday nights

Mr. Sampson: Yes

Chief Ford: In TIPS Program, did he tell you that when people get into a fight, the best thing to do is to tell them to leave.

Mr. Sampson: Yes

Chief Ford: Put them in the back parking lot together?

Mr. Sampson: I told them to leave. They didn’t tell me how to go about doing my business.

Chief Ford: In TIPS they didn’t tell you if there was a fight, you separate them. What’s the obvious that happens when people are arguing if you push them out the door? You think the fight would continue in the parking lot.

Mr. Sampson: It could

Chief Ford: Did it make any difference to you?

Mr. Sampson: I was the only bar, I was the only person there. You gotta understand that.

Chief Ford: (inaudible)

Mr. Sampson: I wasn’t shy either. I’m always there by myself and there is a bouncer there sometimes.

Chief Ford: Was there a bouncer there that night?

Mr. Sampson: Not that night.

Chief Ford: You said the size was 100 pounds soaking wet.

Mr. Sampson: Yes

Chief Ford: Did they tell you anybody about the TIPS Program about the size of an individual?

Mr. Sampson: Yes

Chief Ford: And the amount of liquor they can handle?

Mr. Sampson: Yes

Chief Ford: What did they tell ya?

Mr. Sampson: I don’t know the details of it but you assume a small person can’t handle what a bigger person can handle.

Chief Ford: Your experience as a bartender on Sunday nights. If somebody comes in and drinks a shot and a beer, do you consider that person to be a drinker?

Mr. Sampson: Drinking

Chief Ford: A drinker? Somebody that the average person come in and get a shot and a beer?

Mr. Sampson: That’s a general statement.

Chief Ford: Do a lot of your customers’ order a shot and a beer?

Mr. Sampson: No

Chief Ford: You stated that you didn’t serve Ms. O’Neil any drinks but you did hear Clemons testify, you were sitting in this room, that he bought at least 2 when they were playing pool. Where would they come from?

Mr. Sampson: I didn’t serve any of them.

Chief Ford: But where were they buying these drinks if you’re the bartender and they weren’t buying them from you?

Mr. Sampson: I have no clue.

Chief Ford: No clue

Mr. Sampson: No Clue

Chief Ford: There was nobody else went behind the bar?

Mr. Sampson: Nobody. Nope. Nobody gets behind the bar.

Chief Ford: You heard an accident when you were leaving, were you curious as to who

Mr. Sampson: I didn’t hear an accident.

Chief Ford: You saw an accident?

Mr. Sampson: I didn’t see the accident. I saw police cars.

Chief Ford: You saw the police cars. Were you wondering what police cars were doing there?

Mr. Sampson: Obviously you do.

Chief Ford: Did it pass through your mind they might of been there because maybe of the fight?

Mr. Sampson: No

Chief Ford: Somebody call the police?

Mr. Sampson: No because it was an hour after I asked them to leave.

Chief Ford: Did you go over and talk to the police?

Mr. Sampson: No, I didn’t sir.

Chief Ford: You closed up and just went right by the cars in the parking lot?

Mr. Sampson: They weren’t in the parking lot. They were on Route 28.

Chief Ford: Did I hear you testify that O’Neil’s car was in the parking lot?

Mr. Sampson: I have no way of knowing what she’s driving.

Chief Ford: When you were interviewed by Sergeant McGonagle, you said you saw the Falmouth Hospital guy and he followed him. Sal was picking the girl off the guy.

Mr. Sampson: Yes

Chief Ford: The guys’ glasses were on the floor so you picked them up.

Mr. Sampson: Yes

Chief Ford: The girl was bleeding so you told her she could use the ladies room to wash up?

Mr. Sampson: Yes

Chief Ford: Did you take her name or any information for your liability insurance in case she filed a claim?

Mr. Sampson: It was a scratch on her finger.

Chief Ford: Did you take the name and notified Mr. Smith?

Mr. Sampson: No. She didn’t complain at all about what happened. Had she broke it on the glass I would probably do something like that.

Chief Ford: You heard the troopers testimony that outside when you talked to her she was put under protective custody for intoxication.

Mr. Sampson: Yes

Chief Ford: Can you explain that?

Mr. Sampson: No I can’t. She could have been hysterical.

Chief Ford: So its your testimony that you were working on the evening all by yourself, with 12 customers all sitting at the bar and that these people didn’t get any drinks so that they were getting them someplace else if they were drinking.

Mr. Sampson: I told you that I served them. I assume Mr. Gosson had beer and probably the one of the shots and the other gentleman had a beer. I didn’t serve them with Mary O’Neil. She never came to the bar once and asked for a drink.

Chief Ford: Did you see the police report?

Mr. Sampson: Yes I did.

Chief Ford: OK, Its says O’Neil when she was interviewed by Sergeant McGonagle stated she is a cashier with a supermarket. She was bored; she took a drive down to the Cape, ended up on the Cape and started having car problems. She went into Smitty’s Bar, pulled into the lot. She had some popcorn and drinking rum and cokes. Spent the day and evening in the bar. She went outside a couple of times, checked on her car but never left the parking lot. She described the fellows that she met there and said both males bought her drinks. Do you think that statement is incorrect?

Mr. Sampson: Maybe she had the shot. Who knows? I think it’s incorrect because I didn’t serve her.

Chief Ford: But you don’t know because you never saw who drank them. She could of drank all 3.

Mr. Sampson: She didn’t drink all 3.

Chief Ford: I mean, you don’t know that.

Mr. Sampson: I don’t know that.

Chief Ford: No further questions.

Attorney Wagner: Just a couple of quick questions and then I would like to rebut on that. This accident according to the police report was a pedestrian accident that was in front of Guardian Storage. That’s a further down the roadways is it not?

Mr. Sampson: It is.

Attorney Wagner: So there was no accident that occurred in the median in front of the premises nor in the parking lot of the premises. Is that correct?

Mr. Sampson: It did happen in front of that

Attorney Wagner: Is that right? Is that where you saw the police cruisers when you left here?

Mr. Sampson: Yes

Attorney Wagner: So you obviously when the Chief just asked you if your curiosity about an accident. Did you have any perception that could have been any patron that left your place of business?

Mr. Sampson: None

Attorney Wagner: And also when you were asked about could she had the 3 drinks, there is no questions that you then talk with her after all those drinks were served at the end of the fight and asked her to leave. Is this correct?

Mr. Sampson: That’s correct.

Attorney Wagner: And that’s when you formed the opinion that she was not an intoxicated person. Is that correct?

Mr. Sampson: Yes

Attorney Wagner: Thank you

Chairman Tirrell: Go ahead Chief

Chief Ford: Craig, in Mr. Clemons report he talks to Sergeant McGonagle and he tells her about their argument. But you couldn’t see what happened in the pool area because you were at the bar.

Mr. Sampson: Right

Chief Ford: So you wouldn’t know if that was a true statement of not.

Mr. Sampson: Right

Chief Ford: No further questions

Attorney Wagner: Well clearly you do know they were arguing to the extent that they got into a fight?

Mr. Sampson: Yes

Attorney Wagner: Thank you

Chairman Tirrell: Questions from members of the Board.

Selectman Zuern: I have several questions. You said that Mary wasn’t in the poolroom but you said all your customers were sitting at the bar. Was Mary sitting at the bar?

Mr. Sampson: I didn’t really notice her sitting at the bar. She was milling around. That all I, I had no contact with her at all. I never talked to her. She was milling around doing whatever, I don’t know. But the only time I noticed her because there was nobody in the bar, just the 2 gentlemen and her were in the back. So I know she was in the back.

Selectman Zuern: What time did you kick them out? At 11:00?

Mr. Sampson: 11:30 quarter to 12

Selectman Zuern: So she was milling around from 3 o’clock to

Mr. Sampson: I got there at 6

Selectman Zuern: Well 6 o’clock till 11 just milling around with nothing in her hand. Nothing.

Mr. Samson: I never served her a drink.

Selectman Zuern: But did you see her holding a glass?

Mr. Samson: No

Selectman Zuern: And you weren’t curious

Mr. Samson: (inoperable), I don’t ask. I’m told that she was kind of strange from the other bartender before me. She wasn’t drinking so I can’t kick her out.

Selectman Zuern: But later on she was in the back room playing pool.

Mr. Samson: She was in the back room.

Selectman Zuern: So she could have been drinking.

Mr. Samson: There were only 3 people there. Two other people and her were in the back room and they only had 3 drinks. Unless she had one of those.

Selectman Zuern: Thank you.

Chairman Tirrell: Anymore questions?

Selectman Barlow: When Matthew Clemons came in and Robert Gosson you looked them over. Is it possible that they could have been drinking before they went to the bar?

Mr. Sampson: They could have been. They didn’t appear to be drunk at all so they could have (inaudible) before they came. Patrons sometimes do.

Selectman Barlow: You didn’t smell any alcohol on them?

Mr. Sampson: No. It’s pretty hard when you are working with alcohol all night. You kind of absorb some so you really can’t smell it off their breath. It’s a distance from me to you. So you really can’t extinguish that fact.

Selectman Barlow: The testimony that we had from various officers who are trained in this area said these people are intoxicated (inoperable). Are you familiar with people taking drugs? Did it look like they were taking drugs possibly rather than alcohol to get to this state that they were in?

Mr. Sampson: They could have. I wasn’t like I said they were in the back room playing pool. Who knows, they could have gone into the bathroom.

Selectman Barlow: You didn’t see any indication of it. Any marks on their nose or anything like that they were doing any type of drugs?

Mr. Sampson: Not at all. No, I know I observed that behavior before.

Selectman Barlow: So you can dismiss that they weren’t on any type of medication or drugs?

Mr. Sampson: I didn’t dismiss it because I didn’t judge them on that. I didn’t see no reason to judge them because they seemed fine to me.

Selectman Barlow: You wouldn’t serve anybody that’s on drugs that are high?

Mr. Sampson: No. Of course I would not.

Selectman Barlow: You wouldn’t serve them any alcohol same thing as being intoxicated, right, pretty much?

Mr. Sampson: Could be. Not if they are on medication everyday you wouldn’t notice. You know

Selectman Barlow: Providing that there is something received in that bar upon

Mr. Sampson: (inaudible)

Selectman Barlow: No

Mr. Sampson: That’s the only time I I’ve been there since he opened a year and a half ago. I myself have been in there a few times other than working and that is the first time that I’ve ever seen an altercation.

Selectman Barlow: Have you been bars before?

Mr. Sampson: Ya, sure. I’ve bartended in other places to.

Selectman Barlow: Are you use to it when fights break out one or two of the parties are drunk more often than not.

Mr. Sampson: Could be. It could also be like I was saying, like for affection of a woman.

Selectman Barlow: OK

Attorney Wagner: I have a question on what Mr. Barlow just asked. You don’t know what they did or didn’t consume by way of drugs once they left the premises. Is that correct?

Mr. Sampson: No

Attorney Wagner: So whatever went on out in the car in the parking lot (inaudible) the police report indicates that Mr. Clemons and Ms. O’Neil were seated in one of the cars together and at that point in time according the Clemons Mr. Gosson walked off. You don’t know what they were doing in that car.

Mr. Sampson: I didn’t even know they were in it.

Attorney Wagner: So you didn’t know what car they owned one way or another.

Mr. Sampson: I didn’t even know they were on the premises. I didn’t know. I didn’t see them.

Chief Ford: I just have one question. Your in charge of Smitty’s Bar and you’re the only employee on duty and your at the bar and you don’t know where everybody’s place (inaudible) and you don’t know what they are taking but you know you are responsible for everybody on the premises. Right?

Mr. Sampson: Right

Chief Ford: OK. So you can’t full testified to what to what she (inaudible) but you heard what (inaudible) and you heard what Clemons had stated. Are they all wrong?

Mr. Sampson: They are because in the TIPS course they tell you if somebody comes up and wants more than 1 drink whose the other drink for? So when Mr. Gosson came up and asked for a beer, two beers and a shot asked who are they for and he said he’s drinking the Bud and I’m drinking the beer and the shot.

Chief Ford: Where were they standing right there?

Mr. Sampson: (inaudible) Mr. Gosson was right there and the other guy and the girl were in the back.

Chief Ford: So basically, you gave him 3 drinks. By law you are supposed to give him 2 right?

Mr. Sampson: Correct

Chief Ford: Did you give him 3?

Mr. Sampson: I gave him 3

Chief Ford: But the law says you are only supposed to give him 2 because you don’t know where those drinks are going.

Mr. Sampson: Well, he drank the shot, he drank the shot at the bar left the glass and took the 2 beers.

Chief Ford: He drank so you said earlier that she might have drank the shot but you saw him drink the shot. Are you saying that?

Mr. Sampson: Yes. He drank the shot.

Chief Ford: He drank the shot.

Mr. Sampson: 1 drink. I don’t know. I said the wrong thing.

Chief Ford: No further questions.

Attorney Wagner: I just have 1 question. In the time frame of 10:30 to 11:30 (inaudible) how many patrons were left in the bar during that time frame? Maybe I’ll make it easy for you. Mr. Lally came in sometime around 9:00 he said maybe a little before or maybe a little after and he thought there were 20 – 25 patrons that was in the establishment.

Mr. Sampson: I don’t know what time they all dispersed but I’d say probably around 11 o’clock I was the only, me and Sav were the only ones at the bar and they were in the back room.

Attorney Wagner: So the 3 were in the back playing pool.

Mr. Sampson: Yes

Attorney Wagner: And how do you know they were playing pool? Did you hear the balls dropping? And just left in the bar out front is yourself as the bartender and Officer Savioli at the bar. Is that correct?

Mr. Sampson: Yes

Attorney Wagner: So you don’t know what Ms. O’Neil may have taken by way of drugs out in the parking lot do you?

Mr. Sampson: I guess not.

Attorney Wagner: And you don’t know whether that would explain why her breathalyzer reading was relatively low in an intoxicated person? You do know the breathalyzer do you not from TIPS?

Mr. Sampson: Yes

Attorney Wagner: Measures alcohol and not drugs?

Mr. Sampson: Yes

Attorney Wagner. Thank you

Chief Ford: I don’t know if I dare ask a question because of the look

Chairman Tirrell: We’re kinda liberal here with this just 1 more question.

Chief Ford: Basically, there was no evidence there were any drugs in the parking lot.

Mr. Sampson: I wasn’t in the parking lot. That all I said.

Chief Ford: So, there is no evidence. And the breathalyzer reading you don’t understand a .06 four hours later it could be a .14 when you backtrack it would be a (inaudible).

Mr. Sampson: Right

Chief Ford: So you work construction and you work as a bartender 1 day a week on a Sunday night and you were at the bar and most of the people were sitting at the bar but know we have 3 from 11 o’clock on in the back room. I have no further questions.

Chairman Tirrell: Any more questions from the Board for this witness? Do you have another witness?

Attorney Wagner: That is the end of my live witnesses. I just have 1 more piece of evidence to point out.

Chairman Tirrell: Thank you Mr. Sampson

Mr. Sampson: Your welcome

Attorney Wagner: And that evidence is for you to recall the testimony of the State Trooper who testified to his certifications and the operation of the breathalyzer and the performance in providing that breathalyzer. And also keep in mind from his testimony the fact that what he tested a .06 would mean. That is was below the (inaudible) level of being even under the influence and he did indicate that there could be a drop off during that period of time. It’s not going to be a substantial drop off so why would they conclude that she wasn’t just under the influence when they decided that they wanted her to be put aside for protective custody and not intoxicated a high reading. The only thing that could explain that is that somewhere along the way Ms. O’Neil consumed drugs and some alcohol in her system as well from a drink that she had or drinks that she had at Smitty’s but the point is that I’m making to you is that the (inaudible) that was demonstrated at the accident and clearly the troopers own testimony on the reading of the breathalyzer was that was given to her and yet what the condition was that was decided earlier as to her condition as to why they’d taken her into protective custody. And what did he say then? Intoxication not under the influence and yet her reading didn’t match up to that at all. The only explanation to that would be even if you took the simulation factor that the Chief pointed out, it still just barely got up to the presumed level which the good trooper testified was nothing but under the influence. What would get her up to be demonstrating a level of intoxication, which is the criteria for protective custody? What would demonstrate how that could be and yet a breathalyzer reading is so low? She had to be consuming some drugs and when could she have been consuming those more likely than not she had left the premises and was out in the car. Clearly, in the police report she was in the car with Mr. Clemons at the time Mr. Gosson walked away according to Mr. Clemons that he had a habit of doing of just walking away and walking home. Assuming he would just thumb a ride at such distance but in any event that would explain to you the reasons for her demonstrating behavior and condition to appear that of an intoxicated person. Know at the scene of the accident, which is now almost an hour after being told to leave.

Chief Ford: There is no evidence

Chairman Tirrell: Are you finished presenting witness?

Attorney Wagner: Yes I have

Chairman Tirrell: I would like to proceed to closing statements and we invite the Chief to do that first. Are you all set?

Chief Ford: I am. In the first part I would like just like to comment on what we talk about being intoxolited. She was placed she was given a breathalyzer at 2:45 which is a long time after the incident and that why the reading was .06 and she wasn’t released because she was intoxicated. By the objective man at the stations or what the trooper saw that she could not take care of herself to he put her into protective custody. By your own statements, that was introduced into evidence that she believed she was under the influence (inaudible). We get Mary O’Neil’s statement, she had rum & cokes, fighting and she had to wash up. She acknowledges that she was placed in protective custody by State Police Trooper due to intoxication and that was her statement here to Sergeant McGonagle. I think the Police Department proved their case by basically an objective observations of both the Officer Jeff Lanoie here in front of the Board. He was a good witness. He doesn’t know anybody and he testified basically that they were she was intoxicated and had to be placed under protective custody. State Trooper Kevin Brito testified the same that he did place her under protective custody. He did talk about intoxication and the fact that they didn’t release her. If she wasn’t intoxicated they would had to release her immediately. That’s why they gave her a breathalyzer. Matthew Clemons testified basically, that bought her a couple of drinks. People where buying her drinks and if she was drinking. Basically, the bartender testified that he didn’t sell her any drinks that she wasn’t drinking and he only sold 3 drinks if you can believe that they were playing in the backroom for over, according to Mary O’Neil and Clemons for 3-4 hours and they had even by a (inaudible) interpretations of 3 drinks for each of them basically shows that they were drinking. The bartender was alone. He testified that he couldn’t see in the backroom. People were he even testified that there were people at the bar and there was nobody they were all at the bar and then he has 3 in the back. So there is no way of telling what they had. There was no evidence anywhere here at this hearing of proof of drugs. Officers were in the parking lot. In fact the bartender, who went to TIPS, stated he knows how to make observations of somebody intoxicated and these 2 people were in a fight which was an obvious sign that something is wrong. Normal people don’t start a fight in the middle of the bar. How does he feel that corrected? You have to leave and he puts them both out in the parking lot. I don’t know where he believed that this fight was going to stop right there and wasn’t going to continue in the parking lot. I think the difference of the bartender lead to the point that they were served alcohol at a time, according to Clemons they were being arguementary and they were leading up to it so he should have known. He should, he new, or should of known that they were intoxicated and he neglected his performance as a bartender.

Chairman Tirrell: Mr. Wagner, are you ready for closing arguments?

Attorney Wagner: I’ll try to be brief.

Chairman Tirrell: No, please proceed and due you duty.

Attorney Wagner: #1 I will thank the Board for your time and consideration over the 2 separate days. (inaudible) that you have has been referenced to from time and time again and so be very careful to just reference to Section 69 requires proof that the license holder or the suggested license holders poise sold or delivered on a licensed premises beverages to an intoxicated person. The key obviously is the intoxicated person. Was the person who was served intoxicated or the person may also be under the influence if not (inaudible) true although there are no studies that I know of. That most people have most perceptions, businesses, meetings, bars, taverns or whatever where alcoholic beverages being served in one degree or another under the influence of alcohol they have consumed probably after the first drink or certainly after the second drink. Are they under the influence to the standard of .08 according to all the studies that picks up with depending on how the time is to consume the alcohol at drink #3 and drink #4? In some relation factor in place of, which you don’t have any evidence of on therefore I won’t delay with that point with you. But what happens in this particular situation is you have an individual who or individuals who are in each others company with nobody else really there from 10:30 to 11 o’clock there is no evidence to the contrary and 1 person in the other part of the premises along with the bartender. But that 1 person is kind of an important person to you and you didn’t find any evidence to the contrary that his training was any different than any other police officer. This is a join community; works for the Town of Bourne Falmouth and his training is probably identical to the training of our police officers. Any yet you will note in the police report that not a great deal of time was spent asking Officer Savoili what were your concerns of the people who consumed alcohol, what’s your experience in drawing conclusions as to whether they are under the influence or intoxicated. Why? Shows a decent person and you want to say well why wouldn’t you ask the one person who’s there who’s not connected with the business, who has specialized training. Not a person later, the person who’s there at the moment when the last drink had to have been served. But keep in mind once the fight occurs and the disrupted conduct is heard there is no violation Section 69.When the Chief asks about combative people, once the combat occurred or whether it was over the good affections of the young lady or whether it was a product of consumption of alcohol or whether it was a product of just (inaudible) we will probably never know. Any why don’t we know because Ms. O’Neil is not here. If you recall she was a witness that they were waiting to arrive. She didn’t appear and there is no power of a summons. The first night I was standing in the hallway and Officer McGonagle was going back and forth where is she, where is she and she wasn’t here. She would be the person to shed but what did she say in the police report? You haven’t had a chance to judge her face, look at her, decide who is to believe or unbelieve. But Officer Savioli, if the investigation was focused on really what happened here, no better witness. No better person to ask how long have you been a police officer, how many occasions have you had to look at intoxicated people. Because he certainly ends up with an opinion that is contrary to what the complainant would like you to believe in this case. And that’s from the police report and yet nothing is in there about the fact, about the background and the training, any experience of this person other than he’s a police officer and ends up with the opinion, and as strange as they may of appeared, they were not injured, not intoxicated and of need of no other service. And what’s the evidence of any drink being served to the plaintant, none. So clearly 69 was complied with there. What’s the evidence of what their condition was when they were told to leave the premises? She opted to take the position that she would like to use the ladies room to wash her hand. She articulates it without any difficulty as told by the bartender. Do you see Officer Savioli being asked any of those questions? He had to be right there. Would you not ask him if you were the investigating police officer would you not stand up and say to him well you were right there. What did you see? Was he unsteady? How did she speak when she asked to go to the bathroom? That’s these whole witnesses independent from this case. The whole witness and what’s the standard of proof in this type of case? The standard of proof is nothing more than the scales of justice 51% to 49. The Chief cited that in his good memorandum and I don’t disagree with his indication of what the standard is. There is no disagreement on that. So when you weigh that you’re not disturbed by that? You’re not disturbed by .06 reading in 2 ½ hours come by and take a look at the test and you would just barely be over .08. In fact the trooper testified that he wasn’t (inaudible) but I wanted you to see that it just barely got up and possibly over .08 because no further. And that would be just under the influence. So how did she get in a condition with someone an hour after she left which is when the police officer, according to this report, is telling her to stand aside because we don’t want you to leave and then making a decision that she’s going to alternately be taken into protective custody. (Inaudible). Extreme intoxication, protective custody I guess that’s the criteria. Protective custody. She must of consumed something that was not alcoholic. And why do we say that, because what ever created her condition whether it was a mental disorder or something she took at a later time. It clearly wasn’t something measurable by breathalyzer that we know. And what do we know about Mr. Gosson so there is no question about evidence or at least (inaudible) two individuals that is apparently (inaudible). What you don’t know about him, I don’t know either and neither does the Chief. He has an ethanol reading and so you have a medical background. There is a protocol for the taking of a blood alcohol that’s going to be used to show what the blood alcohol content for intoxication purposes is as compared to the taking of the blood sample for the purpose of showing what other medical is treatment needed in the course of medical treatment. That’s not something, which is from my head. It’s nothing-famous (inaudible) treat as you can find. By chance, it also was on television just shortly after we had our last hearing. That you might say well I don’t know whether I want to accept that as a (inaudible). But the point is that part of the thought process on which side ways out 51-49 and how you’re thinking gets there. Mr. Smith isn’t someone who is a strange and just walked into town. He’s one of your businessmen. One of your taxpayers. That doesn’t mean that if his establishment hasn’t done something wrong they don’t deserve to be punished. But when your weighing that evidence and giving it some thought your not just thinking about someone that (inaudible) through for half an hour so the consequences of it. Though the consequences of Mr. Gosson, if he really, if there is a connection his condition and what happened to him and somehow the business of Smitty’s should be responsible for that but you don’t think that the attorney for Mr. Gosson gave all those records to the good Chief because he’s a great believer in law and order did you? Let’s not kid each other. No attorney out their practicing law and I’m assuming that his attorney is, I know he is, a legation lawyer knows anything other than the 79G be complied with. Everyday we have (inaudible). So he gets his own reports and then say you know you really need to get the 79G complied with where it might be that he kind of was aware that the ethanol reading isn’t quite the one that can be used for this purpose. You know he passed up that big package of goods and gives it to the Chief because he just wants to be on the good side of the Chief. And what about the bartender. What does he offer you? You know the funny part about the bartender is not only his testimony you can find him good or bad I suppose as a witness but the town’s part of the statement about him is in the (inaudible). I woke up the other night and I thought, why and I bothered by it. What I was bothered by it was the tena of the reporting and I don’t like to make criticisms where I live in the same community of the officer making the report. The word despondent and see if that doesn’t trigger a little knee jerk reaction like wait a minute. It seems like kinda just grasp at straws. What about the part about where the key should be to the questions that are asked because the key is (inaudible) if you think about it his

(Inaudible) the fight occurs and Savioli and the bartender are encountering the needs of two, three people that’s when the examination counts on what’s their condition and yet this police report looks like that never happened. That’s where the questions should have been asked and the report should have reflected that the speech was not clear or speech was clear that eyes were red that the person had to repeat (inaudible). But that is the crucial point where the tests is going. That’s the witness test point for the scene that you are applying. When all is said and done about all these other issues and hopefully I haven’t been party to (inaudible) to them but if I have I apologize. The trust is that the application of Section 69 is at that moment in time. And no other drink is served at that moment in time. And so where is the woman that you find that was so intoxicated that another drink shouldn’t have been served. The next point for investigating officer was that point and test point legally was not just because the bartender observations, but the most active person participating at that point and time is the person who has no connection to anybody, Civilly other than being a patron but also a Falmouth Police Officer. Your observations at that moment should have been for Falmouth and if that doesn’t leave you with the slightest bit of doubt to tip that scale 51-49 than nothing ever will. And if you are satisfied then you’ll find my client responsible and if you are not satisfied, even if you have other doubts going the other way then you don’t find him responsible. My only challenge to you is when you wake up the next morning, and the morning after, and the morning after, and the year after, you got to be satisfied that your waking up and looking in the mirror of a person who really did justice and didn’t get the justice. Thank you.

Chairman Tirrell: Thank you. We heard testimony and closing statements. We will be close this portion of the hearing dedicated to hearing testimony. Is there such a motion?

Selectman Zuern said so moved.

Selectman Barlow seconded.

Chairman Tirrell: Motion made and seconded to close the hearing for the purposes of taking testimony. All those in favor of the motion say yea, those oppose say nay. So voted unanimously

Chairman Tirrell: What is the Boards wishes? To discuss what we have heard, we need to discuss the point of towards our goal of making a finding and then proceed from there toward a consideration. You have much evidence? We have 6 pieces of exhibits entered into the record including this one here. A memo that was received just as we came into the building tonight. What is your pleasure?

Selectman Barlow: In my opinion there is overwhelming testimony to the fact that an intoxicated person was served at the establishment. I believe the testimony of the officers were specific and testimony of Matthew Clemons, Sergeant McGonagle and I think the testimony here, although it was different, did not contradict the testimony that was given by Sergeant McGonagle. Sergeant McGonagle’s testimony to the Board regarding the condition of the participants, the actions of the people involved in the altercations and continuing the altercation outside. The thought process of Mr. Gosson should state that he was going to walk home, go home where he lives in Fall River and then walk out into the highway trying to flag down a vehicle. Doesn’t seem the actions of someone who was sober.

Selectman Barlow: I will entertain further discussion on my motion and person and find that there was a violation and there was service to an intoxicated person at Smitty’s Pub.

Selectman Zuern: I second that motion.

Chairman Tirrell: Tom, I challenge you. So then you judge the testimony of the bartender to be untruthful and (inaudible)

Selectman Barlow: I’m just attempting the testimony of the bartender. (inaudible) evaluating witness and using judgement on reliability of the justice system.

Selectman LaFarge: Are you done?

Chairman Tirrell: No, but I can’t make words up right know so its your turn.

Selectman LaFarge: Two observations, #1 (inaudible) you want to consider that we have 2 violations with I think both were intoxicated and #2 the question of Officer Civilly not testifying here and at the last hearing I believe Mr. Wagner subpoenaed Mr. Savioli in attempt to bring him and I believe he was going to attend here tonight. So if we haven’t heard from him and got to hear his qualifications and his facial expressions to tell us that these people stone sober. The person who could of bought them did. The consequences are severe and I know that when I wake up tomorrow and the next day and I hope I can the next one and I hope I can next year I will have a clear conscience. I’m going to for this.

Selectman Zuern: I remember Sergeant McGonagle also saying that she didn’t ask for Mr. Savioli or didn’t ask that many questions of him or because he didn’t have direct contact with Mary and I think also Mr. Gosson. He was also drinking himself with a beer and a police officer or not a couple of beer could impair his judgement as well. So I wouldn’t consider him if I were Sergeant McGonagle I would consider him a person to question myself. If I could smell liquor on somebody and I was judging that they were intoxicated and that they were loud or whatever I would do the same thing that she did and judge that person on my experience and not go to a bartender, I’m talking she didn’t know he was a bartender, go to some at the bar and ask them questions about what was going on. She made a judgement and I think the police officers made the correct judgement. The blood alcohol levels were high and showed that they’ve been drinking, they had to be drinking there and I think it was poor judgement made on the bartenders part for letting them go out to the parking lot after they have been fighting and I will have a clean conscience myself.

Chairman Tirrell: I’m seeing that or sensing that the motion that is before the Board that we find that there was a violation and an intoxicated person was served at Smitty’s Bar on the night in question. Is there any further discussion? Then if your are ready for the vote all those in favor of that motion making that finding say yea and those oppose say nea. Voted Unanimously 4-0

We may proceed know making that finding to assessing a penalty within the realm of our responsibilities as the local licensing authority. Is their discussion?

Selectman Zuern: There was a similar finding on June 12, 2002 where a beverage was given to an intoxicated person at the same place. I think this is very serious especially since someone left and got hurt. That person could have been killed. I think that the punishment should reflect that. That it should be severe.

Chairman Tirrell: You leaving it open. There is room for you

Selectman LaFarge: This is still in discussion. May I, previous violation was that for doors to be shut? I think it was.

Chairman Tirrell: I can’t answer that.

Town Administrator William Griffin: Mr. Chairman I have a copy of the letter from the ABCC, it was brought by the ABCC, a hearing Smith Enterprises d/b/a Smitty’s and its dated October 21, 2002 sale delivery of an alcoholic beverage to an intoxicated person and suspends the license for a period of one (1) day and then the selling drinks to a person at prices less than charged. There was a letter of warning issued. That what I have and it appears to be the same licensing.

Selectman Zuern: I think, did you mention the transfer of ownership did you mention that in the beginning? At the top of the sheet here that we have its transferring ownership was approved by the Board of Selectmen on March 5, 2002 and the violation occurred in June of 2002 so that was after.

Chairman Tirrell: It appears that this is the 2^nd , the records show that this is the 2^nd violation and similar nature, same ownership.

Selectman Barlow: Given that the ABCC has already given them a judgement on 1 day violation and our policy is to increase the penalty as requirement the second time. There are 2 violations and on other liquor violations we’ve given them 2 days and I think we should follow and suspend 2 days on this violation. I think its more on the purchasing liquor and somebody under 21 you don’t get the ID its pretty clear that the violation occurs and somebody and you go on the purchase to drink at a bar and I think a lot of the people don’t even realize that they are intoxicated. They have one beer, two beers and all of a sudden maybe a third and fourth beer puts them over the edge and for the bartender he’s got ten to twelve people there. You can easily serve somebody over the edge and not doing it to make the extra dollar but just serving his customers and actually serving an intoxicated persons.

Selectman Barlow move that we suspend for 2 days.

Selectman Lafarge: I would like to discuss that if we could.

Chairman Tirrell: I would like to see we got a second just to be clean on the procedures and in effect I will second the motion to keep it going. Mr. LaFarge

Selectman LaFarge: We just had 8 of the licensees get daily suspensions for violations clearly but violations that could not result in harm. By that I mean we had undercover police, under age police buy not drinking and turn it over to the sergeant. Nothing is going to happen there, nobody was going to get hurt. It was a good enforcement measure. Here by have somebody who with a blood alcohol conversion at the hospital, and I have to tell you I trust the people at the hospital, at .15. That’s almost twice drunk and if the bartender didn’t catch this in a bar on a highway a limited access highway around midnight and somebody could get hurt and this guy, I don’t know the extent of his injuries, two broken legs. He can’t start rehab until he has his broken legs mended, which sets him back. The costs here must be extraordinary and it’s a message that we have to send, no 2 days for this. Maybe the ABCC in Boston would but I would say we have to go with a minimum of 30 days suspension. And I’ll make a motion to increase the penalty from Tom’s motion to 30 days.

Chairman Tirrell: Is there a motion to amend the main motion? Is there a second? No second so we will continue to discuss the main motion, which is to move to suspend the license for 2 days.

Selectman Zuern: I think that 2 days is just not enough. I think 30 days is a little too much