Police feel pain of sting
An alcohol bust upended by court
Burlington police thought they did everything right the night they caught Papa Razzi serving an underage customer for the second time in two years, taking careful steps to avoid entrapment.
But after the town suspended Papa Razzi's liquor license for three days, the restaurant appealed to the state and won on a technicality, because Burlington had failed to advertise the sting in advance in a local newspaper.
Sound absurd? That's what Burlington officials thought.
"It just flew in the face of common sense," said Ralph C. Patuto, a Burlington selectman and retired police sergeant detective who helped establish the town's sting program five years ago. Robert A. Mercier, the town administrator, agreed.
"I can't make a lot of sense out of it," he said.
The state's Alcoholic Beverages Control Commission, as well as a Superior Court judge, sided with Papa Razzi because Burlington failed to heed one of 17 guidelines written by the ABCC for underage drinking stings: "Notification that a sting will be taking place will be made in local media prior to the start date."
Burlington officials considered that guideline - which does not stipulate a time frame for the notification or specify how the ad should be worded or how many times it should appear - vague. They said Papa Razzi had several reasons to expect a sting, or compliance check: The police chief had held regular meetings with liquor licensees to review licensing guidelines, caution them against serving underage patrons, and remind about possible stings. The police also posted a general notice about stings on the department website. And Papa Razzi had been caught once before.
"That was notice, but the ABCC didn't think it was good enough notice, which is absurd," said Patuto, who serves on the selectmen's subcommittee for alcohol regulations. Papa Razzi "broke the law, and they got away with it."
No restaurant or package store had challenged the town's failure to purchase newspaper ads until Papa Razzi, owned by the Back Bay Restaurant Group, did so. The company, which did not return multiple requests for comment, won at the ABCC level last May. The town appealed, but Superior Court Judge Christopher J. Muse sided with the ABCC and Papa Razzi in a March decision.
On the advice of town counsel, selectmen recently decided to let Muse's ruling rest without appealing to a higher court. Burlington had already spent "well over $10,000" in tax dollars to argue the matter, Mercier said.
Burlington's stings have been effective at reducing the sale of alcohol to underage patrons, said Fran Hart, the town's police chief. Initially, one third of the town's roughly 30 licensees failed the stings; now only one or two licensees typically fail each sting, which the department conducts every few months, he said.
Local police departments as well as ABCC investigators regularly conduct stings with underage decoys, a practice that the Massachusetts Appeals Court upheld as legal in a 1998 ruling known as the Fran's Lunch case. The ruling also upheld the 17 guidelines drafted by the ABCC, which many local departments also use.
Stings are conducted to promote compliance and education, not to penalize restaurants, bars, and stores, officials say. On appeals to the ABCC, state commissioners have sided with license holders when cities and towns have conducted stings without regard for the guidelines - such as letting a decoy engage in entrapment by persisting to ask for service after being initially denied - or when the municipalities issued unduly harsh penalties.
Burlington officials thought their case was different. Among other safeguards, officers used college students from out of town and sent them in alone, with officers waiting outside, to avoid situations in which the server might recognize the decoy or police. They also instructed each decoy to ask for a beer and leave immediately after service or denial, without trying to influence the seller.
"You're so caught up in trying to make sure you're doing everything constitutionally correct that you just assume you don't have to tell people you're coming," Hart said. The ABCC found otherwise, ruling that media notice is needed "to protect the integrity of compliance checks in Burlington and throughout the Commonwealth."
In its Superior Court appeal, Burlington's attorneys said that the requirement "defies logic."
"Sting operations, by their very nature, are deceptive practices designed to catch a person committing a crime," wrote Richard Bowen and Jeffrey A. Honig of Kopelman and Paige.
The judge disagreed.
John M. Collins, general counsel for the Massachusetts Chiefs of Police Association, said he thought Burlington might have been successful if it appealed to a higher court, given a past ruling in a similar case Still, Collins said, it's safest to follow state guidelines in the first place.
Easton ran into a similar problem last fall after conducting stings Oct. 30, despite an ad indicating they would occur the following month. The town counsel, aware of the Burlington case, advised selectmen not to impose suspensions or try to fight the issue, and they agreed. Easton now pays for less-specific ads about ongoing compliance checks.
Colleen A. Corona, chairwoman of Easton's selectmen, said the ad guideline seems counterintuitive. "It's kind of like putting up a sign before a speed check saying, 'Speed Check Ahead.' "
E-mail Eric Moskowitz at emoskowitz@globe.com.
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