EagleTribune.com, North Andover, MA

October 12, 2012

Hearing on over-serving charge is postponed

Victim, bartenders failto show up at proceeding for Hans Garden incident

By Shawn Regan sregan@eagletribune.com
The Eagle-Tribune

---- — HAVERHILL — A punishment hearing for Hans Garden on charges of over-serving alcohol to a customer before he toppled backwards off an outside deck was postponed last night because neither the victim nor the bartenders who said they never served him showed up.

Police said 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 on Aug. 25.

Tony Hans, owner of the Washington Street eatery, was cited for failing to provide a safe environment for patrons and selling or delivering alcohol to McKay after he was already intoxicated.

At last night’s hearing, Police Lieutenant Dana Burrill told commissioners that McKay had told him he had been drinking at the business for “a while” and consumed “several” alcoholic drinks there. But Burrill said McKay declined several invitations to attend a License Commission meeting to tell his story in person.

Hans’ attorney, Scott Gleason, presented the commission with written statements from three bartenders and two security officers who were working the night McKay was injured. Gleason said every bartender working that night denied serving McKay even a single drink, and that the police officer on the scene said he could not tell whether McKay was disoriented from the fall, drinking alcohol or a combination of the two.

“We’re disputing whether he drank there (at Hans Garden), not whether he was intoxicated,” Gleason said of McKay.

Commission members appeared skeptical of that assertion, however, and asked Burrill to try one more time to convince McKay to come before them. “I’m not sure we’re getting the truth here tonight,” Commission member Gerald Sewell said.

Gleason and License Commission Chairman Joseph Edwards then jousted for several minutes over whether which side, or both, should have to produce their witnesses in person.

“Both sides are based on hearsay statements,” Gleason said. “None of the witnesses are here. I’ll bring all our witnesses here if that’s what’s required, I’m here to cooperate. ...But (McKay) has had two chances to come here and he’s apparently not interested. Why would you give him a third chance when my client has already been here twice for this?”

In the end, the commission voted 3-0 to continue the hearing on the over-serving charge until Nov. 15. If he is found responsible, Hans faces the possibility of seeing his alcohol license suspended or revoked.

As for the allegation that Hans failed to provide a safe environment for patrons, the commission agreed to drop that charge. Burrill said he inspected Hans’ deck several times and that it is his opinion the structure it is no different than other restaurant decks in the city.

“I never saw the deck as unsafe,” Burrill said.

Two weeks ago, 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.