Business

Mass. restaurants want OUI serving data eliminated

Boston, MA - 03/30/16 - The scene inside Carrie Nation Restaurant & Cocktail Club's Speakeasy in Beacon Hill. The local bar room, once a vital part of local politics, has become less important in recent times. - (), Section: Lifestyle, Reporter: Dugan Arnett, Topic: xxbarroompolitics, LOID: 8.2.2441797526
Barry Chin/Globe Staff/File
Last-drink reports deter bars from serving intoxicated customers, public health advocates contend.

Massachusetts bars and restaurants are pushing to eliminate a state program that tracks where convicted drunk drivers had their last drinks before being arrested, saying it embarrasses businesses without giving them a chance to defend themselves.

Under state law, judges collect “place of last drink” reports from each person convicted of operating under the influence. The reports are used by alcohol regulators and local police to identify establishments that seem to routinely over-serve patrons.

But the restaurant industry believes the reports are unreliable and unfair — the information is volunteered by defendants and not verified by authorities, operators complained, and there’s no process for businesses to rebut accusations.

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“Local officials look at these reports and say, ‘this is a problem bar,’ ” Steve Clark, director of government affairs for the Massachusetts Restaurant Association, said. “But the bar never had a chance to say, ‘that guy was never here.’ ”

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Prompted by a story in The Boston Globe in December naming the establishments that have accumulated the most last-drink reports, the restaurant association has asked a state task force considering an overhaul of alcohol laws to recommend that the Legislature eliminate the program.Convened by Treasurer Deborah Goldberg, whose office oversees statewide alcohol enforcement, the task force is expected to unveil suggested policy changes in August.

The industry’s stance has alarmed state regulators, local licensing officials, and public health advocates, who argue the last-drink reports deter bars from serving intoxicated customers and help enforcement officers focus their limited resources on those that do.

“We have a very effective program that’s been cited as a national model for preventing impaired driving,” said Ted Mahony, the top investigator at the state Alcoholic Beverages Control Commission, or ABCC. “Why would you get rid of that?”

Under the program, last-drink reports are sent from state courts to the ABCC and municipalities. State and local officers can’t use the reports to immediately sanction the named bars and restaurants, but they target repeatedly cited establishments with enforcement stings, which can lead to license suspensions if investigators observe employees pouring drinks for drunk patrons or other violations. Other times, officials simply pressure such bars to retrain their staff on how to serve alcohol responsibly.

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But restaurants say people convicted of drunken driving frequently misremember or lie in court about where they had their last drink. And even though the reports don’t lead directly to punishment, operators said, municipal licensing boards nonetheless see them as black marks and give bars named by drunk drivers harsher punishments for other, unrelated violations.

“When John Doe is convicted for OUI, he just names the first place that comes to mind,” Clark argued. “Essentially, you’re taking the word of a drunk over a business owner who might be innocent.”

However, the restaurant association declined to cite examples of bars that were unjustly punished as a result of the reports, saying its members feared officials would retaliate if they complained publicly. And while the last-drink program has been active since the early 2000s, Clark said his group resolved to kill it only after the Globe publicized the data.

“Usually they go unreported, but then you do a big story about all these reports, and I get calls from my members saying, ‘two of my three [reports], I wasn’t even open those days,’ ” Clark said. “It’s not fair for the state to create negative publicity if the restaurant has no defense.”

At the same time it’s pushing to eliminate the last-drink reports, Clark’s group is lobbying to have the state’s longstanding last call pushed back from 2 a.m to 4 a.m., following a recent vote by lawmakers to allow the state’s new casinos to serve that late.

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The association also wants the state to allow restaurants and bars to accept out-of-state ID cards without assuming additional liability and to give local licensing boards the option to fine businesses for liquor law violations instead of suspending their licenses.

‘The bar never had a chance to say, ‘‘that guy was never here.’’ ’

Steve Clark, Massachusetts Restaurant Association 

Although Clark insisted the issues are separate, public health advocates worry that hampering officers’ ability to identify problematic bars while simultaneously making it easier for more people to drink later into the night would lead to a spike in drunken driving.

“I don’t think anybody wants businesses to be falsely accused,” said Amy Turncliff, a neuroscientist and co-chair of the policy and advocacy group MetroWest Substance Abuse Prevention Alliance. “But there has to be accountability, especially if you see repeat infractions.

Municipal licensing officials are also wary of eliminating the program. Wayne Brasco, chairman of the Waltham licensing board, said that while individual reports may be suspect, cumulative data from the last-drink program are “an important barometer” for municipal regulators.

“I don’t believe for a second that drunk drivers tell the truth,” Brasco said. “But if one guy gets 20 reports, you got a problem. When there’s that much smoke, there’s got to be a little fire.”

The National Liquor Law Enforcement Association, which represents state alcohol agencies, recently urged the Massachusetts task force to preserve the last-drink registry. The group said it “frequently uses Massachusetts as an example of the proactive ways in which [last-drink] reports can be used to improve serving practices.”

In 2012, the National Transportation Safety Board recommended that every state adopt a similar policy. Currently, a handful of states have laws mandating the reports, while elsewhere a patchwork of local governments and police departments collect such data.

“With this program, we can do targeted investigations instead of random investigations,” Mahony said. “And if the bar’s not observed serving intoxicated persons, they’re not written up. It’s quite fair.”

Mahony noted that Toby Keith’s I Love This Bar & Grill — the Foxborough bar that according to the Globe’s December analysis accumulated more recent last-drink reports than any other establishment in Massachusetts — has not been cited in a single arrest since its record was publicized.

“We’ve spent a lot of time there working with management, and it ended up with a good result,” Mahony said. “We expect they’ll still have zero reports at the end of the year.”

Barry Birks, vice president of the company that controls Toby Keith’s, said the publicity and ABCC intervention that followed the Globe story prompted an immediate improvement in the restaurant’s practices. He also credited a new program promoting Uber and other ride-hailing services at the Patriot Place complex, where Toby Keith’s is located.

“Once the article came out, it was made abundantly clear to the management that they needed to up their game,” Birks said. “It’s not enough to just get people out the door, it’s making sure they get home safe.”

He added that revenues at Toby Keith’s are actually up this year, suggesting that the embarrassment caused by last-drink reports doesn’t necessarily hurt business. Regardless, Birks said he still dislikes the system.

“Without any kind of proof, or any way to expunge a report,” Birks said, “it’s inherently unfair and inaccurate.”

Dan Adams can be reached at daniel.adams@globe.com. Follow him on Twitter @Dan_Adams86.