Yard House action delayed to Sept.

“We don’t want to see it happen again where somebody falls through the cracks and is the cause

of a severe accident.” ~ Selectmen Chairman Phil Crawford

Published in the August 26, 2015 edition

By MAUREEN DOHERTY

LYNNFIELD — For the second time this summer, the selectmen have postponed action on whether to suspend the liquor license for the Yard House or hold that suspension in abeyance for a set period of time. That decision has now been delayed until their next meeting on Sept. 9.

The selectmen were pleased with the good faith shown immediately following their July public hearing that the Yard House had voluntarily put in place police details each Thursday, Friday and Saturday night. But, they also made it clear that they were not happy that an agreement making those details a permanent arrangement between the restaurant and the town had not been formalized by their Aug. 17 meeting.

The sanction under consideration after the July meeting by Selectmen Chairman Phil Crawford and Selectmen Tom Terranova and Chris Barrett was a four-day suspension of the liquor license, with two days suspended for two years. Only if another violation occurred within those two years would the additional two-day suspension be imposed.

Following the Aug. 17 deliberations, the board members were amenable to holding any liquor license suspension in abeyance for two years provided there were no violations within that timeframe.

However, the selectmen still want the Yard House to agree to a separate and permanent arrangement for the police details with the town while the Yard House was pushing for the police detail requirement to expire in two years concurrently with the abeyance.

The alleged violations occurred eight days apart, on Friday, May 1 and Saturday, May 9, and generated incident reports by the responding Lynnfield police officers, but no arrests. Both cases involved allegations of the sale of alcohol to intoxicated patrons, both of whom were of legal age.

The Yard House maintains that there is no proof that the man involved in the first incident had consumed alcohol in their establishment and that the testimony provided in both incidents regarding the consumption of alcohol by these men amounts to hearsay under the law.

The second incident involved a medical call to the Yard House for a man who had passed out in the bar about 30 minutes after he had arrived there with two other friends and each were served one light beer. Under the HIPAA laws, since there was no criminal investigation involving the man, Chief David Breen testified in July that his department is limited in the amount of information it can obtain or reveal about his medical condition or identity.

Appeals of a vote by the board on a liquor license suspension would go before the state’s Alcohol Beverage Control Commission (ABCC), not to the town.

The agreement the board sought with regard to the hiring of local police officers on private details would need to be done separately as a contract between the Yard House and the town because imposing this type of sanction as part of a liquor license suspension is not within their authority, according to town counsel.

Town Administrator Jim Boudreau told the board that the police detail agreement had not been signed yet because it was “going back and forth between counsel.” He said the issue appeared to be whether the “hiring of the police details was going be a ‘mitigating factor’ in what this board decided for a punishment, if any. That’s not spelled out in the letter because … the board has to take action.”

Yard House Counsel Timothy Perry concurred with Boudreau, stating the Yard House has had several discussions with Town Counsel Tom Mullen over the last month, and with his associate, attorney Meredith Freed, on the day of the meeting.

Perry said the “road block” to a signed agreement is that “under the public meeting law my understanding is the board has to take the action first before the counselor can hammer out the details in an agreement like this. We have deferred to that to see what the board was going to do.”

“There’s no question in my mind that the Yard House and the town and the Police Department are going to continue to work well together. Whatever the resolution is, there is no intent other than to continue to work with the Chief,” Perry said.

Selectmen Chairman Phil Crawford said, “We were told they were two separate and distinct items. If we have any suspension or an abeyance of a suspension it would be handled by the board. Any agreement for details there on a permanent basis is a separate agreement that they basically have agreed to do and we were just trying to get that signed off on.”

Crawford told Yard House District Manager Jeremy Wilks that he appreciated that they hired the police detail immediately. But he was not happy that the Yard House initially did not want to take “ownership” of what had occurred in May.

“There were two incidents within a week and the Yard House didn’t take any ownership of it. As a matter of fact, they tried to tell us that they literally had nothing to do with it and I really wasn’t happy with that. I was hoping that there would be a little bit of remorse, something along the line of ‘This will never happen again; we’ve changed our policies and we’ve agreed to put a detail in place.’ But that didn’t happen,” Crawford said.

“The answer we got was, ‘We don’t think we served the first guy and the second guy might have had something else wrong with him.’ Some of that might have been true. But that wasn’t really what I think the board was looking for; at least it wasn’t what I was looking for,” Crawford said.

Perry disagreed. “This is a company that takes ownership of issues like this,” he said, adding, “The reason that you heard a defense was not because we weren’t taking ownership. … We’re looking at the evidence that was presented and we felt then and, frankly we still feel today, that under the law there is not sufficient evidence to say these folks did anything outside of the law.”

Crawford said, “Somebody was very fortunate that (your) employee discovered the first person staggering out on the sidewalk because if that person ever got into his car and tried to drive, you don’t know what could have happened; he could have killed himself or could have injured or killed someone else. That’s my bigger concern, what could happen afterward.”

“We don’t want to see it happen again where somebody falls through the cracks and is the cause of a severe accident,” Crawford said.

Selectman Tom Terranova thanked the Yard House “for being a company of your word and bringing on the police detail. In my mind that goes miles; it shows your intent, that you’re looking to correct an error. In life there’s always things that happen and I think the way you get measured is how you respond. … There certainly were errors here. We don’t need to get into any wrangling over what exactly the situation was, but there were two very serious incidents. With you bringing on the detail for the three nights a week coupled with their outside consultant, that tells me you are looking to make some serious change in your establishment.”

“We don’t want anybody leaving your establishment drunk and we certainly don’t want them getting into an accident and God forbid hurting anybody else, including themselves,” Terranova said, adding, “Now what do we do to make sure that you as a business know how serious we are about the matter? I would be inclined to put the two days of closing your doors day in abeyance for two years and if you don’t have any issues, then your slate would be clean.”

Barrett said, “I have to agree with both selectmen on this issue; certainly, you acted quickly. My main thing is police detail. … I think it’s good for the Yard House and it’s good for MarketStreet, to have that coverage there on the weekends especially.”

Crawford said, “The original agreement was we would do a permanent detail and then discuss the penalty after that.”

Wilks said the addition of the police detail was an “an act of good faith” and they would “make a decision based on what your recommendation was.”

“The police detail is a safety net for us. It is not their job to police our building, it’s ours,” Wilks said, explaining that their due diligence includes making sure people who come into or leave their establishment are not impaired in any way.

Crawford responded, “If I understand what Selectman Terranova is proposing and I tend to agree, is we would agree to two years in abeyance, no penalty now, if you agreed to signing the three nights of detail as a permanent position without any term limit. That’s what is on the table.”

Barrett agreed, “I want to see the permanent detail. That was absolutely the agreement. I thought we’d have a signed letter tonight and it’s unfortunate we didn’t have that. I understand you wanted to wait to see our decision but I thought we were pretty kind to delay that. Selectman Terranova wanted to delay it to this meeting and give you the opportunity to bring that letter to us. We don’t have that letter.”

Terranova asked Wilks: “Is it probable that the Yard House would agree to enter into an agreement with the town to have an indefinite detail?”

Wilks said, “Yes. Obviously, it is a large cost but we want to be good neighbors. We are part of the community.”

Crawford said at the next meeting he wants the Yard House to come back with an agreement for “three nights of permanent detail with the Lynnfield Police Department knowing that we are going to put two days in abeyance” for two years.