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B-Man not held at fault in fatal crash.

Byline: Jan Gottesman

STERLING -- Despite evidence that a man, who was killed in a crash after leaving B-Man Tavern last year, had a blood alcohol level above legal limits, selectmen voted Wednesday night not to find the business or staff negligent.

Selectmen, following legal precedents provided by the courts, did not find a preponderance of evidence that the staff at the Route 140 tavern served a person showing evidence of intoxication.

However, noting that the tavern had a history of issues, and was in the public spotlight, selectmen urged owner Barry White to make sure all his help was educated in TIPS (Training for Intervention ProcedureS). TIPS is a program that trains servers to identify people who are intoxicated.

The accident occurred on June 24, 2014. Chief Gary Chamberland said the Sterling emergency dispatch center received several calls about a motor vehicle accident at approximately 4:30 p.m. The single vehicle Co driven by James Gardner Co left the road and hit a house near B-Man Tavern. Gardner died at the scene.

The chief told selectmen Wednesday night that one person going north on Route 140 told police on the scene that he had slowed to let a vehicle leave the tavern, then followed the vehicle and saw the driver lose control and hit the house. Officers were then sent to talk to the staff at the tavern and collect evidence.

According to a toxicology report, Gardner, whose name was not used during Wednesday's meeting, had a blood alcohol level of 0.14, which is close to two times the legal limit. The chief said that someone with that blood alcohol level displays slurred speech, blurry vision, red eyes and loss of motor skills.

"These should have been observed,'' Chamberland told selectmen, adding, "With the immediacy of the accident (after leaving the tavern), I thought I should pursue charges.''

Evidence showed that Gardner was at the tavern for approximately four hours, and could have consumed five or six alcoholic beverages, but Chamberland said that was "irrelevant'' as long as the victim was served one alcoholic beverage while intoxicated.

Attorney John Dombroski, representing White and B-Man Tavern, said the family is certain that Gardner died from a heart attack, rather than from injuries in the accident.

The bartender working that Tuesday afternoon, Melissa Marrama, said she is TIPS certified. She said she served Gardner and his childhood friends that afternoon, from 12:30 to approximately 4 or 4:15 p.m., but did not see any signs of intoxication. She added that, as a part-time bartender, Gardner and his friends were not regulars of hers.

In addition to drinking 16-ounce glasses of Yuengling lite draft beer, the party also ate lunch; Gardner ordered a pastrami sandwich and fries. Gardner told the bartender about an upcoming shoulder surgery and, she found out later, was complaining to his friends about numbness in his other arm and not feeling well.

Marrama said Gardner was not slurring his speech or fumbling.

"When he left, he said he would come in and see me on (that) Friday,'' she said.

White said he was working in the kitchen, but did walk through the restaurant and talk to the men, before leaving at 3 p.m. White said Gardner was a "little off, quieter than normal, not as geared up.'' But, he said Gardner did not display signs of intoxication.

White returned to the bar after receiving a call about the accident.

Chamberland confirmed with the bartender that the three men, over the course of four hours, ordered 19 drinks, but the bartender said the men were buying drinks for each other and others in the bar.

"It is a mistake to assume the three drank all the drinks,'' Dombroski said.

"We don't want to get hung up on the number of drinks,'' Chamberland said. "With the blood alcohol level, the appearance of intoxication should have been recognized.''

While Dombroski said he would like to wait to get evidence of cause of death Co the autopsy has not yet been completed by the medical examiner Co selectmen agreed that was not relevant, only whether the staff knowingly served someone displaying signs of intoxication.

Chamberland said he was concerned that, if the signs of intoxication were missed on a slow Tuesday, when the tavern was almost empty, would the staff be able to notice the signs on a busy Sunday when the tavern was full and there was live entertainment?

"I am concerned about the safety of the people on the road,'' Chamberland said.

Selectmen acknowledged that the chief was correct in bringing the charge forward, in light of the blood alcohol evidence. However, the standard put forth by previous cases by the Supreme Court was that the server sold alcohol to an intoxicated person and that the fact that five bottles of beer were consumed in two hours Co as it was in a previous case before the court Co was not enough proof.

"Case law shows a few beers over a couple of hours is not excessive evidence,'' Selectman John Kilcoyne said. "Did the bartender recognize (evidence of intoxication)? Based on what I heard, no.''

Selectman Bob Cutler agreed that it does not appear the bartender "knowingly served to someone who was intoxicated. I could never vote to say she was responsible.''

Selectmen Chairman Brian Patacchiola said that day was tragic to the family and everyone else involved, and he felt the police chief was correct in pressing the charge.

"I don't know if, beyond a shadow of a doubt, they served someone they knew was intoxicated,'' Patacchiola said. He moved the motion to find B-Man Tavern not guilty of the allegation, but did ask White to provide the TIPS certification for all his employees when the bar's liquor license is renewed.

"Unfortunately with the history (of this tavern), people are watching what is going on,'' Patacchiola said.

In other business

The town administrator is looking for people willing to serve on the Sign Bylaw Committee. Contact the town administrator's office at (978) 422-8111, ext. 2316, if you are interested in serving. Michael Szlosek said he would like to see five voting members, including a member of the Planning Board, the general public and business owners, as well as possibly someone from the Economic Development Committee.

The town's new website design (www.sterling-ma.gov) has been released. Anyone with comments or suggestions should call the town administrator's office, (978) 422-8111ext. 2316.
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Title Annotation:Coulter
Author:Gottesman, Jan
Publication:Telegram & Gazette (Worcester, MA)
Date:Jan 9, 2015
Words:1075
Previous Article:Sterling Police Log.
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