The Board of License Commissioners decided on Tuesday that T.G.I. Friday's did not violate the terms of its alcohol license at the conclusion of a three-hour hearing, itself a continuation of a session on Dec. 28 during which restaurant employees were questioned about serving beer to a man police later found drunk and urinating in public.
Members split 3-2 over whether or not the restaurant should have been held responsible for serving James Mahan, 48, of New Hampshire, two 22-ounce Budweiser drafts within 30 minutes on the night of Dec. 6.
Disagreement between Town Clerk and board chair Joseph Powers and building inspector Russell Forsberg, who both voted against the measure dismissing the allegations, and Police Chief Paul Frazier, Fire Chief Kevin Murphy and Director of Municipal Licenses and Inspections Marybeth McGrath, who voted for it, centered around Mahan's appearance when he entered the restaurant and ordered his beer at about 9 p.m.
"I honestly think anyone could go through that front door and make it to that position at the bar and mask any sign of intoxication," Frazier said, adding that Friday's has "taken some great steps in preventing problems that have occurred previously at the restaurant."
On March 23, 2010, Friday's was found by the board to have served an intoxicated person after hours and was shut down for three days. A suspension of four to seven days could have been implemented for a second offense if the current case had been decided differently. Friday's license was also suspended for one day in 2008 after the restaurant was found to have sold alcohol to an underage person. It was put on six-month probation, after which the suspension was removed from its file, according to board documents.
Six hours of testimony in the basement of Town Hall over the course of two hearings focused primarily on confusion among Friday's employees concerning the timeline of events, Mahan's level of inebriation, and if he could have suddenly developed signs of what responding officers called "extreme intoxication," including urinating in front of the restaurant and defecating on himself, without bartenders noticing that he was already drunk when he was served drinks.
Powers, arguing against the motion, said he saw "tremendous inconsistencies" between the testimony of the manager on duty that night and two bartenders and the sworn statements of officers Brian Eng and David Jordan, who reported that the manager told them Mahan had entered the establishment "in the condition in which [the officers] found him."
"The question comes down to who do we place the greatest amount of credence or credibility in," Powers said.
The lawyer for Friday's, Albert DeNapoli, argued that the manager, Erin Mercer, "could not have made such a statement because she did not see him come in." Furthermore, DeNapoli said, similar case law "makes it abundantly clear" that evidence must demonstrate that employees knew or should have known the extent of a patron's intoxication before serving them.
After several rounds of questioning by members and DeNapoli, Mercer, bartenders Paul Lynott and Lindsay Heymann and general manager Liam Quilty-Dunn produced for the board a version of events that refuted the alleged violation.
A bar tab showed that Mahan ordered his first beer at 9:08 p.m., served to him by Lynott, who said on Dec. 28 that Mahan did not appear inebriated at that time. The man then ordered a Jack Daniel's chicken dish with two sides of coleslaw to go, followed by another 22-ounce "schooner" at 9:30 p.m.
Quilty-Dunn gave the board affidavits from five other employees working at the time who said they did not remember interacting with Mahan. This led Powers to question how it was that no one remembered someone who would later antagonize two customers and whose second beer would have to be removed from the bar.
"All of the sworn testimony tells us he was anything but a regular customer," Powers said.
"No one remembered it," Quilty-Dunn said. "No one had any recollection of interacting with him."
After the second beer, some amount of time passed, possibly 30 minutes, before Lynott saw Mahan standing away from the bar by the jukebox, watching a Monday Night Football Jets vs. Patriots game and insulting two other customers. Mercer said she confronted Mahan and then watched him from behind for a while before having a conversation with him in which he seemed "disorientated."
The manager defended her inability to give a precise timeline, saying "I never looked at my watch," as well as the discrepancy between her initial description of Mahan as "disorderly" when he was talking to the other patrons and then "on something" and "confused" about where he had come from and where a cab could bring him.
At that point, at 10:44 p.m., Mercer called the police. The words she used to describe the problem -- a "disruptive" rather than "disorderly" patron -- were important to Chief Frazier, who made a note of them before his dismissal vote. "The manager that night did exactly what I as a license commissioner would want any license holder to do," he said.
DeNapoli also bolstered his clients' case by bringing in an expert witness, David M. Benjamin, a Ph.D. in pharmacology and toxicology who has testified in more than 200 state and federal trials.
Dr. Benjamin said that it was possible someone like Mahan, who told police he was an alcoholic while he was being booked, could have consumed a large amount of alcohol before entering Friday's, successfully hid the signs of intoxication and then tipped over into belligerency with additional drinks and the fuel of confrontation.
"He could have manifested tolerance or learned behavior to allow him to ingest alcohol before he came in and not exhibit effects," Dr. Benjamin said. "If people know that they may appear drunk, they may make great pains not to trip."
Forsberg called this "speculation" since Dr. Benjamin had no direct experience with Mahan, and argued that if Mahan had alcohol in his system when he arrived at the bar, the bartenders should have smelled it and not served him.
"I don't believe that smell is the primary factor," Dr. Benjamin countered, adding that "I don't think anyone wants to trade a five-dollar beer for a $10 million lawsuit."
One case DeNapoli cited in his closing argument, from 2010, involved a woman who was arrested in Acton for drunk driving after consuming two and a half glasses of wine at a restaurant and picking up more alcohol at a package store. Her blood alcohol content was .13, compared to a legal limit of .08. Mahan was never given a breathalyzer test the night of Dec. 6, DeNapoli said, and the Acton case and others, which were dismissed on appeal, demonstrate the high evidentiary bar.
"The evidence in the case before the board is even less substantial," DeNapoli said.
Fire Chief Murphy, who agreed with Frazier on the merits of Friday's case, said that he also believed the responding and booking officers acted appropriately that night. "I think the police officers did a wonderful job," he said. "I mean, [Mahan] was hammered."
Frazier added, "I've seen people sitting next to me at a bar perfectly fine and the next thing I know they are on the floor because they can't stand up."