BOARD OF SELECTMEN
Natick Town Hall
July 14, 2009
6:30 p.m.
The meeting was called to order by the Chairman John Ciccariello at 6:35 p.m.
PRESENT: John Ciccariello, Joshua Ostroff, Carol A. Gloff, John Connolly. Absent: Kristine Van Amsterdam
ALSO PRESENT: Martha L. White, Town Administrator; Donna Challis, Secretary
EXECUTIVE SESSION
Ms. Gloff, seconded by Mr. Ostroff, moved to enter into executive session to discuss matters pertaining to litigation. By roll call vote the motion passed on a 4-0-0 vote. At 6:35 p.m. the Board entered into executive session after announcing that the meeting would return to open session.
The open session was reconvened at 7:30 p.m.
HEARING: METROPOLITAN CLUB D/B/A THE MET BAR & GRILL AND P.F. CHANG’S CHINA BISTRO: ALLEGED LIQUOR LICENSE VIOLATION
Attorney David DeLuca of Murphy, Hesse, Toomey & Lehane noted there was a hearing notice for alleged license violations concerning the Metropolitan Club d/b/a The Met Bar & Grill and P.F. Chang’s China Bistro – two licensed establishments located at the Natick Collection. The notice of hearing came as the result of a detailed investigation conducted by the Natick Police Department and the Framingham Police Department.
As the result of the investigation and notice of hearing, Mr. DeLuca advised that there had been significant discussion of all interested parties – the licenseholders represented by counsel and the Segal family represented by counsel. As the result of the discussion, they arrived at a framework for the Board’s consideration that would result in a resolution to the satisfaction of all parties. The resolution includes a stipulation to the facts as contained in the Natick Police Department investigation and includes agreement to those facts as they constitute a finding of responsibility on each of the allegations on each of the licenseholders including a recommended disposition that would be a three day suspension with one day imposed. If that was acceptable to the Board, the licenseholders would waive
their right to further appeal to the ABCC.
Mr. DeLuca explained that if the Board accepted the framework and heard the case as a resolution, the Board would have the right to vary from that resolution in a downward way but if the Board exceeds that disposition the licenseholders would retain their right to appeal to the ABCC. If the Board found the resolution acceptable, the meeting would proceed with the resolution. If the Board preferred not to proceed that way everyone was prepared to proceed with a full hearing.
If the Board proceeded by way of agreed disposition, police officers from Natick and Framingham, the attorneys for each of the licenseholders have a statement and there would be a statement from the victim regarding the extent of the injuries caused.
The Board would be required to vote if it wished to proceed with the agreed upon fashion or proceed with a full hearing.
At the request of the Board, Mr. DeLuca again went over the proposed resolution and pointed out that an appeal process would include extensive hearings at the ABCC. He estimated it would probably be a year or more before there was a result from the ABCC. The ABCC’s authority was to determine whether the Board of Selectmen was reasonable and they had the ability to remand the case to the Board and the Board would have to rehear it. You were talking about a great deal of time with significant effort by all parties.
The agreement recommended that one of the three days be served and Ms. Gloff inquired as to what happened to the other two. Mr. DeLuca explained those two days would be suspended for a period of time at the Board’s discretion. During that time if there were any further violations the days would be imposed along with any other proposed by the Board.
Ms. Gloff then inquired as to who had agreed to this proposal and Mr. DeLuca responded that it was agreed to by the Natick Police Department, Framingham Police Department, licenseholders, the family that were the victims and their representatives. All were in agreement with the framework.
Mr. Ostroff inquired if the conditions under which the two days may be imposed would be subject to appeal; ie failure to notice change in manager. Mr. DeLuca advised there would be a hearing to determine whether there was any subsequent violation and based upon the determination there was a subsequent violation, the Board could impose discipline. The two days could be considered as a prior offense subject to appeal on the new offense.
Mr. Ostroff questioned if the agreement upon framework would affect the rights of any party that may be pursuing claims in this case. Would the Board’s determination have any bearing on their rights? Mr. DeLuca responded that in his opinion, “no”. They had their rights in the criminal case which was ongoing and the civil case. The extent of the Board’s authority was to the licenseholders.
In response to a question from Mr. Connolly, Mr. DeLuca advised that he was asking if the Board would agree to the framework. Proceeding under that agreement, the only thing there wouldn’t be was the examination and cross examination but the Board would hear the details and have an opportunity to ask any questions.
Mr. Connolly then asked if the summarized version would mean that the Board was locked into the one day suspension. Mr. DeLuca explained that the Board would agree not to exceed that and if the Board decided to exceed the one day imposed, the licenseholders retained their right to appeal.
If the Board were to agree to that framework, Mr. Connolly felt their hands were tied and it would be frustrating if they heard the information and wanted to go further. Mr. DeLuca noted that the Board had the right to decide the discipline with the understanding that a decision could move downward or exceed but should the Board decide to exceed the recommended discipline the licenseholders would have the right to appeal for further litigation at the ABCC.
Mr. Ostroff understood the concept but it wasn’t clear to him why a vote needed to be taken prior to hearing the testimony. Mr. DeLuca responded that should the Board choose not to accept the timework and terms outlined, then tonight would proceed right to a hearing at this level and the Board would hear all the testimony. He didn’t want to open the hearing until a decision was made on whether to proceed by way of agreement or proceed by way of a contested hearing.
Mr. Connolly moved to have a hearing. Seconded by Mr. Ostroff for discussion. After some discussion the motion failed on a 1-3-0 vote. Mr. Connolly voted in favor of the motion. Mr. Ciccariello, Mr. Ostroff, Ms. Gloff were opposed.
Speaking to the motion, Mr. Ostroff shared Mr. Connolly’s interest in developing the facts but wanted to use what good will exists to reach an agreement that would stand up.
Mr. Connolly was of the opinion that to be granted an alcohol license was a huge responsibility and an opportunity for a business to make an extremely large profit margin. With the license came responsibility and he would love to hear an explanation. The Board had a responsibility to the citizens to make sure that businesses given a license did the right thing and it was clear that wasn’t done.
Mr. DeLuca confirmed for Mr. Ostroff that after a hearing should the Board impose a decision that was consistent with the framework the parties would waive their right to appeal. In follow-up he asked if the Board proceeded with the hearing and the decision was for a three day suspension with one day served, would the parties continue to waive their rights of appeal. Mr. DeLuca advised they didn’t have to.
It was Ms. Gloff’s understanding that were the Board to have the long hearing, all the information given in the Natick Police Department report would be presented by direct and cross examination. If the short version was opted, then the Board would still be given information but wouldn’t have the opportunity to ask questions.
Mr. DeLuca advised that the Board would have an opportunity to ask questions and would be given a full version of all the facts developed by the Natick Police Department complemented by the Framingham Police Department. He expected the Board to have full access to all the facts as well as answers to any questions there may be.
Asked if the Board could accept comment, Mr. DeLuca responded that it was a public hearing and he didn’t see why it would be prohibited.
Attorney Jeffrey Allen of Denner & Pellegrino, LLP representing the Met Bar & Grill thought the distinction was if the Board followed the course of Mr. DeLuca, the licenseholder would not contest the charges and would put on a defense. If the Board didn’t follow that procedure, the licenseholder would contest the charges because they felt there were grounds to contest it. The Met Bar & Grill agreed to this procedure out of respect for the Board and the seriousness of this matter and in an effort to handle it in an expeditious judicial manner.
Mr. Allen continued that if the decision was to go to a hearing, it was incumbent upon the Board to keep an open mind until it was heard. They (Met Bar & Grill) thought there were issues that warranted contesting and they thought they were accepting an extreme penalty but if the Board wanted to go the hearing route, he urged the members to keep an open mind and not pre-judge the case. That would be a tremendous mistake and not what the Board was here to do. All the Met Bar & Grill agreed to do to expedite it was to not contest the matter. A presentation would be made simply to explain their position.
Mr. Ostroff stated that he was comfortable supporting the agreement. The Board didn’t forfeit any rights by agreeing to the framework.
Mr. Ostroff moved to proceed with the framework as outlined by counsel. Seconded by Ms. Gloff. The motion passed on a 3-1-0 vote. Mr. Ciccariello, Mr. Ostroff, Ms. Gloff voted in favor of the motion. Mr. Connolly was opposed.
Mr. Allen indicated that he would waive the reading of the hearing notice.
Ms. Gloff summarized the two notices – one sent to Metropolitan Club d/b/a Met Bar & Grill and one to P.F. Chang’s China Bistro: The notices scheduled a hearing pursuant to M.G.L. c. 138, Sections 23 and 64, for July 14, 2009 at 7:30 p.m. to consider whether to modify, suspend, revoke or cancel the liquor license issued to (Met Bar & Grill and P.F. Chang) and address.
The reason for the hearing was that was alleged that on February 1, 2009 alcohol was served to a minor, and that alcohol was served to an intoxicated person in violation of M.G.L. c. 138, Sections 34, 64 and 69.
On a motion by Ms. Gloff, seconded by Mr. Ostroff, the Board unanimously voted to open the public hearing.
The hearing proceeded with a statement of relevant facts. The first called to testify was Sergeant Paul Thompson of the Natick Police Department.
Sergeant Paul Thompson reviewed his report of an alleged liquor violation at the Met Bar & Grill and P.F. Chang’s at the Natick Collection on February 1, 2009.
Sergeant Thompson noted the investigation originated from a complaint made by a parent that her son was seriously injured in a motor vehicle crash with occurred in the Town of Framingham on February 1, 2009 at approximately 7:02 p.m. in the vicinity of 1012A Pleasant Street. The parent alleged that the driver of the vehicle (Christen Lang) crossed over the center line of the roadway, striking an on-coming vehicle head on that her son was a passenger in. The complainant further alleges that Lang was over served alcoholic beverages at the Met Bar & Grill, located at the Natick Collection 1245 Worcester Road. The operator was arrested by Framingham Police for; OUI alcohol etc. It was also determined that the principal parties involved (Lang and Sarah Apotheker, a 17 year old) after leaving the Met Bar
& Grill proceeded to P.F. Chang’s to purchase their last alcoholic beverage before leaving the Natick Collection property prior to the crash in Framingham.
Sergeant Thompson reviewed the time line of events for February 1, 2009 beginning at 16:12 when the involved participants (Lang and Apotheker) purchased a pair of jeans at Lucky Brand Jeans. At approximately 16:30 Lang and Apotheker entered the met Bar & Grill and order two Red Barcelona Sangrias. ID’s were checked. Lang ordered a second Red Barcelona Sangria. The server Justin Isaacs observed her taking a sip from the drink and handing it over to Apotheker. An appetizer was ordered. Lang and Apotheker then each ordered a Patron Silver Margarita and placed a food order. When the food arrived another Patron Silver Margarita was ordered. At 17:48 the sales check was printed and shortly after Lang and Apotheker depart the establishment.
At 18:01:26 digital imaging from P.F. Chang’s at the Natick Collection show Lang and Apotheker entering the restaurant and sitting at the bar near the entrance/exit. They were approached by the bartender/server Rikki Wentzell at 18:06:52 and it appears both produce ID’s, order alcoholic beverages (Asian Pear Mojitos” and order food. An appetizer was shared and the first alcoholic beverages was served to Lang at 18:08:50; however, she knocked over the martini glass on the bar counter and the bartender provided a cloth for cleanup. Apotheker’s Asian Pear Mojito arrived. At 18:14 Lang was leaning on the bar with her elbow supporting her head and consuming food. 18:17 Lang suddenly gets off the barstool and exits the restaurant. Apotheker was still seated at the bar. A
sales check was printed at 18:21. Apotheker leaves the bar and exits the restaurant.
Digital imaging provided by Natick Collection security shows a Lang approaching a descending escalator outside of P.F.Chang’s at 18:24:30. The escalator was blocked off with a barricade as it was out of service, but Lang disregarded the sign/barricade and proceeded to walk down the ascending escalator. After taking several steps, she lost her balance and fell forward, arms outstretched landing on her face. Lang recovered from her fall and proceeded towards the Met Bar & Grill for assistance. Lang reportedly was bleeding from her face and hand. Met Bar and Grill bartender Lisa Borofsky and other staff render aid to the female and Apotheker arrives to find her friend being treated.
At 18:30 Natick Collection Security Officer Sheby Cime arrives on scene and observes injured female (Lang) with hand in a bag of ice, laceration to her upper lip and marked and blood stained clothing. He asks her if she wants medical assistance however, she declines. She was concerned why the valet went running off with her car keys. Cime explained that the valet was getting the car for her.
Security Officer Sheby Cime asks both females (Land and Apotheker) for their identification, they refuse. Within a few moments the valet delivers their vehicle and they leave.
At 19:02 Lang and Apotheker were involved in a head-on crash at 1012A Pleasant Street, Framingham, MA resulting in serious personal injury. Lang was arrested.
Sergeant Thompson reviewed his interviews/statements of the involved parties. He reported that Christen Lang provided no statement invoking the attorney/client privilege. Sarah Apotheker at first consented to give a statement but her father called and on advice of counsel declined to give a statement.
He interviewed Justin Isaacs who was the waiter/server at the Met Bar and Grill on the date in question. He recalled waiting on the two females that afternoon and recalld they produced Massachusetts Driver’s licenses when asked for their ID’s. Apotheker showed a birth date of 12/87 making her just 21. In his statement Mr. Isaacs confirmed the drinks delivered to the two and felt they were OK when they came in the bar and fine when they left. He recalled awhile later seeing Lang bleeding from the mouth and hand and being taken care of by the bartender. He did not know how they left the mall. Beverages consumed at this location were three Red Barcelona wine sangrias, four Patron Silver Margaritas in approximately 1 hour 18 minutes.
Jamie Kaye, Chief Operating Officer of the Met Bar & Grill revealed that he was aware of the circumstances of February 1, 2009 as the Framingham Police had interviewed him previously. He stated that after examining the check and the server responsible, he made the determination that Justin Isaacs should have sought the approval of the on-duty manager before serving the additional drinks. This was a violation of restaurant policy and a violation of his e-TIPS Training (excess of two drinks per hour), hence he was terminated.
Rikki Lee Wentzell, P.F. Chang’s China Bistro bartender/server provided him (Sgt. Thompson) with a TIPS training card issued 12/12/08. She recalled serving the two females on February 1, 2009 around 6:00 p.m. Apotheker and Lang sat near the main entrance to the mall and ordered two Asian Pear Mojito’s. Ms. Wentzell was questioned in regards to the type of ID presented and she recalled they were Massachusetts licenses and she also recalled that they both had the same birth date. She brought this to their (Lang and Apotheker) attention and they both laughed. They ordered an appetizer and Ms. Wentzell recalled making the first Mojito and serving it to Lang. She started to prepare the second Mojito and heard the sound of a drink being knocked over on the bar. When she turned
around she saw the female seated on the left (Lang) was attempting to clean up the spill with a napkin. Ms. Wentzell provided a towel to assist with cleanup. She finished preparing the drink and served it to the other female (Apotheker). At that point Ms. Wentzell determined that she was not going to serve the first female as she was inebriated. Ms. Wentzell observed that Lang was leaning on the bar supporting her head while eating the food. At 6:21 p.m. the check was prepared. Lang left the restaurant while Apotheker placed a $20 bill on the bar and left.
Beverages consumed at this location: Two Asian Pear Mojitos (one only partially consumed before being knocked over) Time in 6:0126 p.m. Time out 6:20:56 p.m. (20 minutes).
Michael Focken, Manager of P.F. Chang’s China Bistro. Mr. Focken was aware of the incident in question as he was interviewed by the Framingham Police Department, he also provided Digital Imaging of the date in question showing the two females during the time period. He provided an up-to-date roster of TIPS training which included Ms. Wentzell’s certification. He felt it was unfortunate that the false ID was not discovered (Apotheker) but felt his bartender acted appropriately after the drink was knocked over and Lang was denied service after that. The bartender/server was still employed at this location.
Sheby Cime, Natick Collection Security. Mr. Cime was the security officer on duty on February 1, 2009. He was approached by a female (Lang) who appeared to have been in some sort of accident. She had her hand in a bag of ice, when she took her hand out it revealed minor lacerations and blood staining on the surface of her hand. She had a laceration to her upper lip. Her upper torso seemed to be stained with dirt and markings almost like tire tracks. The female inquired about the actions of the valet when she came to get her vehicle as the valet grabbed keys and ran off.
Mr. Cime asked Lang if she needed medical attention, and she denied any help. Cime was then approached by another female (Apotheker) who appeared to be with the injuried female. Cime asked her what had happened and Apotheker stated that her friend fell down the escalator by the Met Bar & Grill chasing after a loose wallet. Asked for their names, they refused to provide any information. Shortly, the valet drove up in a white jeep and they got in and drove off. Cime believed it was the injured female (Lang) who drove off.
Mr. Cime reported back to Mall Dispatch to review the video and burn a CD. A Digital Imaging of the event was captured. Mr. Cime reviewed it and noticed that No wallet was dropped and that the pocketbook was placed securely on Lang’s shoulder.
Juan Padilla, Valet employed by Denison Parking Systems. Mr. Padilla stated that he was the valet on duty on February 1, 2009. Sgt. Thompson noted that he showed Mr. Padilla photos of Lang and Apotheker and Padilla recognized them. He remembers the one who was cut and bleeding (Lang). His recollection was that Apotheker jumped in the driver’s seat and drove off. He didn’t notice anything else about them besides the injuries to one of them. He was busy running to retrieve cars from the garage and driving them back to the customers.
Molly Cronin, employee of Lucky Brand Jeans Retail Store. A sales receipt from the store was found in a shopping bag belonging to Christen Lang dated 2/1/09 at 16:12 indicating clothes were purchased and the sales person was Justin. Justin was no longer employed by the company. The manager Molly Cronin advised that he (Sgt. Thompson) would have to fax in a request for Justin’s telephone number. As of this date he (Sgt. Thompson) had not received a response from Lucky Brand Jeans.
Lisa Borofsky, bartender/server at Met Bar & Grill on February 1, 2009. She recalled both females enter the restaurant and be waited on by Justin Isaacs. Later she recognized one of the females (Lang) come back to the restaurant looking for assistance as she had fallen down the escalator. Lang was taken into the ladies room to wash her hand and face and a bag of ice was prepared. Borofsky was aware they were getting their car from the valet and she stated to Apotheker that she should drive, not Lang. Apotheker told her she would be driving. Borofosky followed them out and stated that Apotheker got into the driver’s seat and drove off.
Sergeant Thompson identified the key issues regarding the Framingham Police Department investigation as follows:
- Christen Lang was behind the wheel of the Jeep at the time of the crash
- Sarah Apotheker passenger in the Jeep operated by Lang
- Lang’s vehicle crossed the double yellow solid lines, traveled in wrong lane and struck vehicle #2 head-on
- Sarah Apotheker admits to using a fake ID to Officer Robert Lewis ID is not recovered
- Sarah Apotheker admits she and Lang smoked a little bit of weed before they went shopping at the Collection to Ofc. Lewis
- An open bottle of Patron Silver Tequila, small amount of marijuana found in Lang’s Jeep
- Christen Lang’s toxicology report from Mass State Police Crime Lab reveals a Serum Alcohol level of 0.282 dated 2/6/09 @12:43 p.m.
Sergeant Thompson’s conclusion was as follows:
Based upon all of the information presented it appears that the Met Bar & Grill should have taken the time to inspect the ID’s more carefully and that during the time frame that they (Lang and Apotheker) were at the restaurant, were served alcoholic beverages in excess of the recommend amount of two drinks per hour – Met Bar & Grill’s guidelines as well as TIPS training guidelines. The server did not seek out a manager for approval for the final round of drinks – Met Bar & Grill policy.
P.F. Chang’s encounter with Lang and Apotheker while brief should have raised concern when the bartender noted that the birth dates may have been the same on the ID’s presented and no sale should have been made. It was not until a drink was spilled that the bartender realized that Lang was inebriated.
Sgt. Thompson advised that he did not examine the ID’s presented and did not have them in his possession.
At 8:30 p.m. a recess was called. The meeting was again called to order at 8:35 p.m.
Mr. Ostroff asked about the blood serum level, and Lieutenant Brian Lauzon of the Natick Police Department advised they received a toxicology report with a .282 reading which was alcohol serum and equivalent to 3-1/2 times the legal limit. As to the time, Lt. Lauzon noted that Officer Lewis of the Framingham Police Department would testify to it in his report. It was analyzed after the fact.
Officer Robert Lewis of the Framingham Police Department reported that on February 1, 2009 at approximately 1902 hours he, along with Officers Girotti, Krishtal, Curtis, Godino and Sergeants M. Esposito and K. Esposito all responded to the area of 1012A Pleasant St. for a report of a 2 car crash with injuries. Upon arrival Framingham Paramedics were on scene assessing patients and we all assisted. While I first arrived on scene I was approached by a female later identified as the owner of vehicle 1, Christine Lang (DOB 12/13/85)and she was yelling and crying at me stating that she was at fault and that the accident was all her fault. I asked Lang what had happened and why was the accident her fault and she stated to me “It’s my fault, I shouldn’t have been drinking and driving.” I
asked Lang again what had happened and she stated to me that she and her friend, later identified as Sarah Apotheker (DOB 10/22/91), were coming from the Met Bar at the Natick Mall and that she had had a few drinks while at dinner. Lang continued yelling and screaming and walking around the scene, paramedic arrived and placed a collar around Lang’s neck and asked me to watch her and not to have her move. I placed Lang in the rear of a police cruiser that was on scene and I left the door open so Lang could keep her feet out of the vehicle. Lang refused to sit in the car and continued stating that the accident was her fault and that she was “so sorry” for what she had done and Lang also stated multiple times, “I am an asshole for drinking and driving.” I had to continuously tell Lang to sit in the cruiser. As I was talking to Lang I noticed a strong odor of alcoholic beverage emanate from her mouth as she spoke to me.
I asked Lang to tell me what she had remembered about the accident and she stated the following, “I am such an asshole, I only had two drinks a margarita and a sangria drink, I thought I was OK to drive” Lang was crying uncontrollably and again refused to sit still. Lang was eventually transported to MetroWest Medical Center by Framingham Fire.
While on scene Sgt. M. Esposito requested the assistance of the Massachusetts State Police Crash Reconstruction Team at the scene and Tpr. Michael George responded and assisted us in our investigation.
On scene the operator and passengers of vehicle 2 were extricated from the vehicle by Framingham Fire and all transported to area hospital. Officer Krishtal took photos of the scene and went to the hospital to interview Lang. Sergeants M. Esposito and K. Esposito also heard Lang’s comments about drinking before she drove. I stayed on scene with Tpr. George while he conducted his investigation.
After an initial investigation it appears vehicle 1 crossed the double solid yellow line and was traveling in the wrong lane and struck vehicle 2 head on. Vehicle 2 driver and passengers all sustained serious injuries and the front seat passenger had to be extricated from the vehicle due to the injuries sustained.
During an inventory search of vehicle 1, he located in the vehicle an open bottle of Patron Silver Tequila, the bottle contained a clear substance that smelled of an alcoholic beverage. He also located what he believed to be from his training and experience a marijuana smoking pipe that had been broken and it contained a substance that appeared to him to be a green leafy substance consistent to be marijuana. He also located a small glassine baggie that contained a small amount of green leafy substance that he believed to be marijuana. He took custody of these items and placed them into evidence at the station. Smitty’s Towing arrived on scene and towed the vehicles. He located nothing else of value in either of the vehicles that were towed during an inventory search.
Lang was issued Massachusetts Uniform Citation M7058823 for the following offenses:
C90 S24L – OUI motor vehicle causing serious bodily harm
C90 S24 - Operating a motor vehicle to endanger
C89 S4A – Marked lanes violation
Officer Lewis told the Board that he did interviews with the Met Bar & Grill and P.F. Chang’s and they were cooperative. He advised that on February 3 he applied for a search warrant for the blood taken from Lang. He executed the search warrant and recovered one vial of blood taken at UMass Memorial.
Mr. DeLuca asked if Officer Lewis was able to determine the time at which the blood was taken and he responded that it was taken that evening (of the accident), but he didn’t know the exact time. The medical records were sealed in the office.
Officer Lewis then read the narrative of Framingham Police Officer V. Krishtal:
On February 1, 2009 at about 20:45, I went to the MetroWest Hospital to inform the staff of the Police Department’s intent to subpoena the blood test results of Christina Lang, 12/13/1985.
When I arrived, I observed that hospital staff and security were attempting to reason with Lang, who was combative, uncooperative, and not allowing doctors and nurses to attend to her. Lang had sustained some very obvious injuries to her face which included multiple deep cuts and abrasions. Her face was covered in blood and she was still strapped to the back board. The doctors and nurses were attempting to further assess Lang’s injuries but Lang was physically fighting with staff. Lang kept screaming that she messed up and that she would have to pay for it.
I offered to see if I could reason with Lang and convince her to cooperate with the emergency room personnel. I then spoke with Lang and explained to her that the doctors wanted to determine the extent of her injuries. Lang briefly argued with me but then asked me, “Is my face really covered in blood? I told her that it was and that in fact there were still some open wounds on her face that were now still bleeding. I noted at that time that Lang’s breath had a very strong and heavy odor of an alcoholic beverage. Lang agreed to let the doctors do their job and asked me, “Can I just talk to you?” I told Lang that she did not have to talk to me about the accident. Lang then stated “I messed up”. “I should not have been driving”. I
once again told Lang that she should be concentrating on being treated for her injuries. Lang stated “I was stupid I had too much to drink”. I asked Lang where she was drinking. Lang stated that she was at the Metro 9 Bar. She told me that she had three to five drinks there but could not tell me exactly how many drinks it was. Lang said that she was drinking Malibu rum with juice. She then stated “I also gave liquor to my friend. She is underage. I really feel bad about that.” She then asked me if her friend was hurt. I advised her that everyone involved including her had to be taken to the hospital.
I asked Lang about the alcohol and the marijuana found in her car. Lang told me that the marijuana belonged to her friend. Lang did however claim ownership of the marijuana pipe and the bottle of tequila in the car. Lang told me that she thought that tequila was sealed. I told her that it was found right next to her seat and it was open and only half full. Lang told me that she did not remember if she was drinking from that bottle. Lang once again told me that she gave alcohol to her passenger whom she knows to be a minor. She once again reiterated about how badly she felt about doing this. Lang then continued to tell me that she was way too drunk to be driving and that she deserves everything that she gets as a result. After she finished telling me these things, she once
again told me that she would cooperate with the doctors and allow them to treat her injuries.
Officer V, Krishtal
Mr. DeLuca noted that the Board had heard the facts stipulated to by the parties as they constitute these offenses and form a basis for the Board’s finding. Based upon that, discussion would move to the penalty phase. The suggested disposition was described earlier and counsel for each licenseholder would like to address the Board on the details of the case – not to the stipulated facts but only to the recommended disposition.
Mr. Ostroff asked if the Board would hear from the family. Mr. DeLuca advised that he was planning to provide the Board with that information. There was a representative of the family here as well as Mrs. Siegel. Mr. Ostroff indicated that he would be interested in hearing that before talking about penalty.
Mr. Allen didn’t recall seeing the document from the Siegel’s counsel to which Mr. DeLuca was referring in the packet given to him. Mr. DeLuca presented Mr. Allen a copy and time was given to read it.
The statement from the Siegel’s counsel described the injuries to Jonathan Siegel (father age 51); Rachel Siegel (daughter age 17); and Zachary Siegel (son age 10).
Jonathan Siegel was treated at UMass Hospital Worcester for severely communuted fracture of the right femur beginning midshaft. The fracture transverse the lateral femoral condyle. There was a surgical intervention to insert rod and screws with sultant scarring. Mr. Siegel was required to remain out of work as a result of his injuries and lost bonuses otherwise available to him. While at home he was required to live in his living room on a hospital bed connected to a machine that would bend his leg for him to keep mobility. Mr. Siegel was an avid athlete who has participated in the PanMass challenge for the past 24 years and now walks with a limp and is just starting to ride again.
Rachel Siegel was life flighted to Mass General for left femoral fracture and 1st metatarsal fracture requiring two surgical interventions including rod and screws. There was significant scarring of her leg foot. Ms. Siegel was required to remain out of school during a portion of her senior year and live in her living room on a couch. She now ambulates on her own but still has scarring and continued pain.
Zachary Siegel had emergent endoscopic abdominal laparoscopy for anterior abdominal wall hematoma and chest contusion; right sided hemorrhage of the brain; cranial nerve injury; contusion in the optic chiasm to the right midline in the brain; double vision; right neck contusion.
Master Siegel was required to remain out of school and from participating in all sports and other activities. He was required to wear an eye patch and then special glasses to assist with his double vision. He was cross eyed for months, which was now resolving slowly. He has continued issues with vision.
Deanna Michaelson, wife and mother of the victims, told the Board that her family had been through the worst time of their life and her family would never be the same. She always taught her children not to drink and drive. They supported the businesses and found it so hard to accept the fact that a responsible business would have allowed this to happen and caused this pain to her family. Her husband couldn’t walk. He could ride a bike but couldn’t walk. Her son couldn’t play sports and her daughter had the worst year.
Mr. Allen believed that no one could follow that presentation and not be affected by it. He stood here representing the Met Bar & Grill and all of their hearts went out to the Siegel family for the suffering sustained and was thankful from what was heard that everybody was recovering. You couldn’t not be affected by that type of physical devastation but often the attorney’s job was to place the focus on the real perpetrator – the young lady who was driving intoxicated with the open container and the illegal drugs. It must be kept in mind that those that commit criminal acts must share the responsibility.
Mr. Allen continued that the Met Bar & Grill had been in business at this location just short of two years and at another location for an additional five years. In the seven years this was the first time he has had to defend an action in regard to a violation. A licensee was an organization and no licensee could be present 24/7. What a licensee had to do was to put policies in effect and enforce those policies to protect the privilege they were granted to serve alcoholic beverages and that was what the Met Club did. They had a good policy; unfortunately, on the Sunday night in question that policy wasn’t adhered to.
Mr. Allen advised that long before any hearing or Police investigation, immediately upon learning of the facts the Met Bar & Grill terminated the employee involved. That was no small measure. The Met Bar & Grill took their policies very seriously and that was not adhered to on the night in question. To them whether those ladies appeared intoxicated when they were served was irrelevant because the policy takes that out of the servers hands once two drinks in an hour were served. It was not adhered to that night.
They (Met Bar & Grill) agreed not to contest the allegations and accept the one day. They did not take this lightly. Mr. Allen pointed out that two experienced wait staff viewed the IDs and felt they were valid. At the ABCC you would find that the overwhelming first offenses were met with a warning. In a rare instance it was a one day suspension held in abeyance. In agreeing with Mr. DeLuca Met Bar & Grill wanted to show they took their responsibilities in the service of alcohol very seriously. The employee was terminated to make it clear to all the employees that the Met Bar & Grill’s policies were taken seriously.
Mr. Allen noted that the Met Bar & Grill was an upscale restaurant that serves liquor. They didn’t want to serve minors and acceptance of the one day suspension was to make that clear to the Board. He felt there were a lot of mitigating circumstances. When the lady fell down the escalator it wasn’t known she was a patron of the Metropolitan Club. Mall security was called and security was asked to intervene and make sure she didn’t drive home. The Met Bar & Grill never sought to protect themselves, but cooperated fully with both the Natick Police Department and the Natick Fire Department. All the documents were made available with no search warrants.
Mr. Allen continued that there were a lot of questions about the violation and the Met Bar & Grill agreed not to contest the suspension, but he wanted to underscore the reason they agreed not to contest the one day suspension was because they viewed this with such extreme seriousness and wanted to underscore the adherence of a good alcohol policy. Mr. Connolly was correct that the service of alcohol was a prevention and must be valued by the business by valuing a policy and when there was a deviation to the policy, it must be enforced and clearly communicated to the community that it was taken seriously.
In conclusion Mr. Allen extended the Met Bar & Grill’s apologies and vowed to cooperate with the Town and the Police Department in the upcoming prosecutions.
Ms. Gloff inquired as to what the Met Bar & Grill had done to increase the likelihood this would not happen again. Were they doing any additional training?
Mr. Allen responded that he believed the training was appropriate. When there was a failure you had to analyze where it occurred. The staff receives the training and they made sure the staff understood the Met Bar & Grill took it seriously. He believed the service of 7 drinks was unacceptable and a personnel failure and steps were taken.
Regarding Mr. Allen’s mention that with the ABCC the first offense would normally warrant a warning, Mr. Connolly asked if that was accurate. Mr. DeLuca thought it was hard to predict the outcome of any case in any form. All you could go by was the recorded information and the recorded information that was available for similar cases heard at the ABCC showed a pattern of first offense, warning; second offense a suspension; third offense multi-suspension and beyond that revocation was possible. He agreed with Mr. Allen’s analysis.
Mr. Ostroff questioned if this was talking about all first offenses including those that did not result in serious injury. This was a case of extreme over serving.
Mr. Allen responded that the focus of the ABCC and license enforcement was on the violation. These were horrific injuries but the focus was on the violation. There was another forum for compensating the victims. It was terrible the injuries occurred but the violation would be the same whether these ladies got home safely or not. The fact the accident happened was tragic, but the violation was still the same.
Attorney Andrew Upton of DiNicola & Upton, LLP represented P.F. Chang’s China Bistro.
After thanking the Board for the opportunity to make a statement, Mr. Upton noted that P.F. Chang’s China Bistro was a family restaurant that serves alcohol as an amenity. 85% of their revenues were from the service of food and they did not consider themselves a bar. A full menu was served at the bar at all times.
Mr. Upton distributed background materials on the restaurant chain and a letter from the regional manager. He noted that to address this incident directly, P.F. Chang’s agreed to the disposition terms and didn’t disagree there should be sanctions. Mr. Upton just asked that the Board consider P.F. Chang’s compliance and the facts of the over service. He would suggest that P.F. Chang’s should be at the low end due to fact the police investigation indicates the person did not consume any alcohol from P.F. Chang’s. P.F. Chang’s also recognized her condition and refused to serve her and asked her to leave. Also to be considered was the fact the employee received additional counseling and training and P.F. Chang’s commitment to sharpen focus on alcohol service.
It wasn’t clear to Ms. Gloff that the person did not drink anything. She recognized the glass was spilled soon after, but it was not clear the person did not drink anything. If someone was that drunk she wasn’t particularly enthusiastic about saying the person was served and then it was realized and they weren’t given another drink.
Ms. Gloff inquired as to what P.F. Chang’s was doing to enhance training and compliance.
Mr. Upton advised that P.F. Chang’s had not as yet had the opportunity to review the settlement, but he assured the Board the service of alcohol was taken seriously.
P.F. Chang’s Regional vice President Michael Penna told the Board that P.F. Chang’s started instituting a bars program to identify people under age. Servers and bartenders were given a green or red card if somebody was carted. If somebody was not of age, a red card was given. The system was to identify underage drinking in the restaurant. They also instituted staff training and additional TIPS training and used quarterly meetings to re-enhance the importance of the safe serving of alcohol.
To Mr. Upton’s comment that the establishment should be at the low end, Mr. Connolly thought the Siegel family would wish the same thing but they don’t get that. The Board was being asked to focus on the alleged violation and that was hard to do when he saw the mother sitting in the audience.
Mr. Upton responded that he couldn’t do anything but agree. He listened to that testimony and his job on the licensing matter was to analyze the facts. As the medical report was being read he could think of nothing else but his two daughters that he drove to day care today. When you think about that a lot of facts and issues go out the window, but when the Board looks at the facts he would ask that consideration be given to what P.F. Chang’s did.
Mr. Ciccariello inquired if P.F. Chang’s had a policy relative to the amount of drinks served in a period of time. Mr. Penna advised that it was the same policy as outlined by the TIPS and the Met Bar & Grill. Asked if that was two per hour, Mr. Penna’s response was, “yes”.
Mr. Allen commented that he had sat where the members of the Board were sitting having spent nine years as a Selectmen and he wouldn’t suggest that the members ignore the injuries to the Siegel family. He would suggest the focus was on the licensee and how to protect the public. His heart went out to the Siegels, but in issuing the punishment, the violation was the violation and the record was the record and it was just as serious if no one had been injured than if someone was injured. The purpose of licensing was the safe service of alcohol.
Mr. Ostroff noticed that in P.F. Chang’s alcohol responsibility policy it was noted that if it was determined that someone was intoxicated an offer should be made to call a cab. Were those policies in place at the time of the event and if not was there any response from management of what might have been done differently?
Mr. Upton advised that the policies were in place at the time and when the person was identified and service refused, there was no reason to go to the management. The woman ran out of the bar and tumbled down the escalator.
Having offered this policy, Mr. Ostroff thought there may be a way to involve other parties to notify Mall management valet service. Mr. Upton agreed that made a lot of sense. That was the policy and if there was any positive outcome it would be to allow P.F. Chang’s to follow it more closely.
Mr. Ciccariello pointed out that in this instance the Met Bar & Grill actually went to Mall security and asked them to intervene. The question was whether security intervened enough and that wasn’t up to the Board.
Mr. Ostroff noted that he just wanted to develop potential guidelines looking forward.
Mr. Upton added that these materials were provided to give a sense of the institution of the alcohol training policy. That was not to say they couldn’t and shouldn’t learn from the incident which was why the regional manager was here.
Mr. Ciccariello noted that this was his ninth year and fourth incident regarding alcohol with different groups and he recognized that the focus had to be on the statutes. The statutes weren’t always clear. It talks about the violation but didn’t talk about what occurred as the result of the violation. In this case there was a serious accident with five individuals injured. Some folks will never recover, but when you read the statutes the things you want to do because of your emotions you couldn’t do. He suggested that each member listen to the facts and consider the testimony. He honestly hoped the two individuals received the punishment they deserved but the Selectmen weren’t the ones to deliver that punishment. That was for the courts to decide.
Ms. Gloff inquired if the Board had any authority to require additional preventive programs be put in place. She noted that she had asked both legal representatives of the licenseholders what they had done subsequently to re-enforce training to further establish the understanding and the desire of their employees to follow the rules and pay attention. She was happier with one answer than the other, but did the Board have any authority.
Mr. DeLuca noted there were rules and regulations that put all licenseholders on notice of what was expected. In so far as building in a component into the decision, he would be concerned if the ABCC would view that as selective enforcement. Voluntary compliance with suggestions of the Board would be something that could be encouraged, but making it a condition was not part of the program. There was no evidence of non-compliance in either case.
Mr. Ciccariello felt that based on the incident both the restaurants would take a more precautionary view, but Ms. Gloff didn’t think she heard that from one. She heard the individual was fired.
Jamie Kaye, Chief Operating Officer for the Met Bar & Grill, noted that he spent a lot of time in Natick and assured the Board that the restaurant was not cavalier about this at all. They were serious about what happened and he was shocked the girls even came from the restaurant. He was furious and fired Justin. The owner of the restaurant was upset and concerned. They really cared. These were their (Met Bar & Grill) people and people make mistakes. This kid made a huge mistake and it led to this. It was embarrassingly tragic but he was going to spend the rest of his time correcting it. The Met Bar & Grill has a policy and people have to sign off, but compliance couldn’t be forced.
Ms. Gloff appreciated Mr. Kaye’s remarks and explained that she was a consultant for companies dealing with the FDA and if the FDA found a problem they would pull the product off the market and they expect not only a fix but improved training and improved systems. That was how her brain worked. She would ask the restaurants to voluntarily, and she believed both were doing so, look at ways to train people and help staff understand the importance of compliance. The restaurants were great restaurants and the Mall was a magnet for young people.
Ms. Gloff hoped the restaurants would continue to keep in mind to work to try to keep situations like this from happening. This was a horrible accident. It was not the Board’s job to rule on the accident but there may be other situations where people were underage or having a bit too much to drink.
Mr. DeLuca advised that the job of the Board was to consider the proposed sanctions and to act on their own judgment as to what would be the appropriate remedy. He reminded the Board that if they were to exceed the range described, there was the right of appeal. If it stayed within the range the licenseholders agreed not to appeal. The range was a three day suspension with one day to be imposed on a day at the Board’s discretion and the remaining two days to be suspended at the Board’s discretion not to exceed a year.
Mr. Allen was of the understanding that it had been agreed to recommend that the one day imposed would be on the same day as the offense.
Mr. DeLuca confirmed that he discussed this with ABCC legal counsel and the day in this case was Sunday.
Mr. Connolly moved to impose a three day suspension on the Met Bar & Grill and P.F. Chang’s China Bistro with one day served and two held in abeyance for a period of nine months. The day to be served on Sunday. Mr. Ostroff seconded and offered the specific date of September 13, 2009 for the day of suspension. Mr. Connolly accepted the amendment. Unanimously voted.
Speaking to his motion, Mr. Connolly expressed his appreciation for everyone’s points and the fact the Board was strictly talking about the violation. Seeing the Siegels it was hard to just look at the violation, but it would be hard to use citizen dollars to fight this out at the ABCC. Mr. Connolly noted that he was proud of the Board and thanked the Natick Police Department and Officer Lewis from the Framingham Police Department.
Mr. Ostroff felt Mr. Allen made the point that the primary responsibility went to the individual that made the decision to drive while intoxicated and he agreed. He was also concerned with the toxicology report because there was a level that was not consistent with the amount of alcohol served in the restaurants and should the parties appeal it was quite likely this would come back to the Board and he wanted the family to be able to put this phase behind them.
Mr. Ostroff appreciated the efforts of both the restaurants to step up their policies and ensure this was not repeated and he thought the Board needed to take advantage of the good will that was here. He felt badly for the Siegel family to have to go through this and wished them a quick recovery. He commended Officer Lewis for protecting the citizens and appreciated Lieutenant Lauzon and Sergeant Thompson for their good work.
Mr. Ostroff raised the possibility of having the Natick Collection come before the Board to see what could be done to ensure this didn’t happen again.
Ms. Gloff stated that she would vote in favor of the motion. This was a bad, bad situation. It was not the Board’s job to be the jury. It was a small comfort to hear the seriousness with which everyone was taking this.
Mr. Ciccariello asked about the valet service at the Mall and was told by Lt. Lauzon that it was a vendor provided by General Growth Properties. Mr. Ciccariello noted that one problem identified was why these people were allowed to leave.
Mr. Ciccariello expressed the hope that neither restaurant would be before the Board in the next nine months. He was confident that everyone would do whatever they could to make sure this didn’t recur.
On a motion by Ms. Gloff, seconded by Mr. Ostroff, the Board unanimously voted to close the hearing.
ADJOURNMENT
The meeting was adjourned at 10:00 p.m.
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Kristine Van Amsterdam, Clerk
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