EagleTribune.com, North Andover, MA

November 15, 2012

Restaurant gets probation in deck fall case

Owner's lawyer says victim is considering filing lawsuit

By Shawn Regan

---- — HAVERHILL — The License Commission declined to punish Hans Garden for allegedly over-serving a patron who toppled off the restaurant’s outside deck because the victim refused to come before the board.

Matthew McKay, 26, of Methuen, spent three days in a Boston hospital and suffered three cracked ribs, a collapsed lung, internal bleeding and a sprained ankle after falling from a roughly 10-foot-high structure at the back of the downtown Chinese food restaurant Aug. 25. According to police reports, McKay told officers at the scene that he had been drinking at the restaurant for “a while” and consumed “several” alcoholic drinks there.

The incident eventually led to new rules for restaurants and bars that allow drinking alcohol on decks, including that they are now required to assign workers to closely monitor deck drinking at their busiest time.

Tony Hans, the owner of the Washington Street restaurant, brought several bartenders and workers with him to last night’s hearing to say they never served alcohol to McKay on the night he was injured.

They didn’t have to testify because McKay never showed up, however.

Sergeant Dana Burrill said he tried to contact McKay several times to ask him to come to the hearing and even had a Methuen police officer go to McKay’s home to relay the request in person. Burrill said McKay hung up when he called him and refused to identify himself to the Methuen officer.

Scott Gleason, Hans’ attorney, told the commission he was recently contacted by a personal injury lawyer who is representing McKay in a potential lawsuit against his client.

“We may see Santa Clause here before we see McKay,” License Commission chairman Joseph Edwards said.

Edwards also noted that police never saw McKay drinking inside the restaurant because they arrived after he had fallen.

“You guys did a good job in your investigation, but you don’t have that,” Edwards said, referring to first-hand evidence of McKay being served alcohol in the establishment.

Commissioners said they suspected McKay was indeed over-served at Hans Garden, but decided to only put the eatery on probation for six months. If there are no license violations during the span, the matter will be dropped, they said. Hans faced having his alcohol license suspended had he been found responsible for over-serving McKay.

“People like you and you’re a friendly guy,” Edwards told Hans. “But you serve too many drinks to too many people.”

Commission member Tim Coco said Hans has a history of alcohol violations and other problems.

“You might not be so lucky next time,” Coco told Hans.

Gleason told the commission Hans will be more careful in the future. Previously, Hans said he modified his deck to make it more difficult for patrons to sit on it.

In the wake of the incident, the commission set new rules for restaurants and bars that allow drinking alcohol on decks. Those businesses are now required to assign a worker exclusively to monitor customers drinking alcohol on decks at their busiest times — 9 p.m. to closing Fridays and Saturdays and the Wednesday night before Thanksgiving.

Restaurants with permission to allow patrons to drink alcohol on outside decks include Hans Garden, the Tap Brewhouse and the Lasting Room on Washington Street, Mr. Mike’s Restaurant and Lounge on Main Street and Archie’s Ale House in Lafayette Square.