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HomeMy WebLinkAboutLiquor Licensing Authority - Minutes - 09/10/1986• 0 LIQUOR LICENSING AUTHORITY Regular Meeting - September 10, 1986 7:43 p.m. A regular meeting of the Liquor Licensing Authority was held on Wednesday, September 10, 1986, in the Council Chambers of the City of Fort Collins Municipal Building. The following members were present: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Authority Members Absent: Sommermeyer. Staff Members Present: Jim Broderick, Police Department Debbie Caster, City Clerk's Office Paul Eckman, City Attorney's Office Minutes of the Regular Meeting of August 13, 1986 Approved as Published Authority member Acott made a motion, seconded by Authority member Morgan, to approve the minutes of the regular meeting of August 13, 1986, as published: Yeas: Acott, Morgan and Spaulding. Nays: None. Abstain: Bullard, Monaghan and Veazie. Renewal Application for a Tavern License for B-Cubed 3524 South Mason Authority member Veazie made a motion, seconded by Authority member Morgan, to approve the renewal for B-Cubed, 3524 South Mason. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Renewal Application for a Authority member Veazie made a motion, seconded by Authority member Morgan, to approve the renewal for Blue Bayou, 1045 Garfield. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding and Veazie. Nays: None. Special Events Permit - 3.2% Eveopener's Kiwanis Club - October 18. 1986 Mr. Richard Franz, representative for the Eyeopener's Kiwanis Club, requested a beer permit for Oktoberfest to be held at the Oak Street Plaza on October 18, 1986. It was noted that this is the ninth annual Oktoberfest. Mr. Franz stated there will be two off -duty policemen patrolling the area. He stated the area for beer service will be roped off September 10, 1986 and volunteers have been trained on how to dispense the beer. Authority member Spaulding made a motion, seconded by Authority member Acott, to approve the special events permit for Eyeopener's Kiwanis Club on October 18, 1986. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Special Events Permit - 3.2% Fort Town Downtown Business Association - October 18 1986 Ms. Victoria Hilton, marketing director for Old Town Square, explained that they desire to hold an event in the Old Town Square in conjunction with the Oak Street Plaza event. She described where the event will be held in Old Town Square. She stated that beer will be dispensed and that she will be responsible for training the volunteers. Ms. Hilton stated Western Security will patrol the area. Authority member Veazie made a motion, seconded by Authority member Acott, to approve the special events permit for Fort Town Downtown Business Association on October 18, 1986. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Modification of Premises for Electric Stampede, 242 Linden Authority member Monaghan abstained from voting on this item. Mr. Richard White, owner, stated the changes primarily consist of cosmetic changes due to remodeling and redecorating. Mr. White spoke of relocating one of the bars to the center to help improve the traffic flow in the front and create a new visual impact. Mr. White stated they will be adding a kitchen and serving meals in the future. He indicated that there is no additional seating. Mr. White explained that the front door entrance will be relocated. He stated they will be opening under a new name and will file the trade name affidavit with the City and State. Authority member Acott made a motion, seconded by Authority member Morgan, to determine that the modification is not substantial and to approve the modifications as presented. Yeas: Acott, Bullard, Morgan, Spaulding, and Veazie. Nays: None. Abstain: Monaghan. Transfer of Ownership Johnny's Liauors III West Prospect Road Mr. Roger Bulau, part owner, stated he and his wife are moving from New York and purchasing the store. He stated the operations of the store will remain the same, as well as the management team and employees. He stated he will be the on -site manager and will work a 40-hour week. In response to a question by the Authority, Mr. Bulau stated he is familiar with the IFAI • • September 10, 1986 Colorado Liquor Code. Mr. Bulau stated he will continue with the same training procedures and reward system as the previous owner. Authority member Veazie made a motion, seconded by Authority member Acott, to approve the transfer of ownership for Valor Colorado, Inc. dba Johnny's Liquors, 111 West Prospect Road. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Preliminary Hearing and Resolution for Comedy Works. Old Town Square Suite 114 The boundaries as proposed by the Administration were as follows: North from the subject premises to Hickory Street extended East to Conifer Street West from the subject premises to Shields Street South from the subject premises to Pitkin Street East from the subject premises to Lemay Avenue and City Limits It was noted that a letter from the law offices of Dill, Dill and McAllister in Denver was received stating that the applicant approves the proposed boundaries. Based on the letter which was received, Authority member Veazie made a motion, seconded by Authority member Morgan, to accept the boundaries as proposed for Comedy Works, Old Town Square, Suite 114, and adopt the preliminary resolution as presented. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. It was noted that the number of licensed establishments in the neighborhood will be an item of discussion at the final hearing October 8. Preliminary Hearing and Resolution for Brophy Bros. Fish Market and Restaurant, 21 Old Town Sauare. Suite 139 The boundaries as proposed by the Administration were as follows: North from the subject premises to Hickory Street extended East to Conifer Street West from the subject premises to Shields Street South from the subject premises to Pitkin Street East from the subject premises to Lemay Avenue and City Limits Mr. Seven Mazoni, representative for the applicant, stated the boundaries are acceptable. Authority member Veazie made a motion, seconded by Authority member Spaulding, to accept the boundaries as proposed for Brophy Bros. Fish Market and Restaurant and adopt the preliminary resolution as presented. &Z September 10, 1986 Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Preliminary Hearing and Resolution for Spirits. 2601 South Lemay Avenue, Suite 18-20 The boundaries as proposed by the Administration were as follows: North from the subject premises to Prospect Road West from the subject premises to College Avenue South from the subject premises to Horsetooth Road East from the subject premises to Timberline Road and City Limits Mr. Don McMahill, owner, stated the boundaries are acceptable. Authority member Morgan made a motion, seconded by Authority member Acott, to accept the boundaries as proposed for Spirits, 2601 South Lemay Avenue, Suite 18-20, and adopt the preliminary resolution as presented. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. New Application and Preliminary Hearing for a Retail Liquor Store License for BDR Liauors 2561 South Shields Unit 3A The boundaries as proposed by the Administration were as follows: North from the subject premises to Prospect Road West from the subject premises to Taft Hill Road South from the subject premises to Horsetooth Road East from the subject premises to College Avenue Mr. Bard Boston, co-owner, stated the boundaries are acceptable. Authority member Morgan made a motion, seconded by Authority member Spaulding, to accept the new application, accept the boundaries as proposed, adopt the preliminary resolution as presented and set the final hearing for October 8, 1986. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. New Application and Preliminary Hearing for a Beer and Wine License for Tempting Creations Restaurant, 3500 South College Avenue #20 The boundaries as proposed by the Administration were as follows: North from the subject premises to Drake Road West from the subject premises to Shields Street South from the subject premises to Harmony Road East from the subject premises to Lemay Avenue -4- September 10, 1986 Ms. Connie Smith and Ms. Marilyn Dutton, owners, stated the boundaries are acceptable. Authority member Veazie made a motion, seconded by Authority member Spaulding, to accept the new application, accept the boundaries as proposed, adopt the preliminary resolution as presented, and set the final hearing for October 8, 1986. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Show/Cause Hearing for Sportsman Boss Hogg's. 210 Walnut Assistant City Attorney Paul Eckman stated that attorney Tom Metcalf has submitted a letter requesting a rehearing of the show/cause hearing on Sportsmans Boss Hogg's held August 13, 1986. He explained that the licensee has appealed the Authority's decision to issue a 30-day suspension and was granted a temporary injunction to keep from serving that suspension until after the outcome of this matter is determined. Mr. Eckman further explained that Mr. Metcalf, Mr. McMahill and himself met with Judge Newton and made an agreement that if a fair rehearing is granted by the Authority, Mr. Metcalf will withdraw their appeal and abide by the new decision of the Authority. Assistant City Attorney Paul Eckman recommended that the Authority grant the rehearing. It was noted in Mr. Metcalf's letter that both the City Attorney's secretary and Detective Jim Broderick stated to Mr. Wahlberg that the hearing scheduled for August 13 had been disposed of. Therefore, Mr. Wahlberg assumed that it was not necessary to appear at the hearing. Mr. Eckman submitted a copy of an affidavit from his secretary/receptionist stating that she is certain that she did not inform Mr. Wahlberg that the matter was taken care of and not to attend the hearing. Mr. Brian McMahill, attorney representing the licensee, stated there were two citations pending which were dismissed around the same time as the notice arrived regarding the show/cause hearing. He stated Mr. Wahlberg contacted the City Attorney's Office and through the conversation inferred that everything had been taken of, including the show/cause hearing matter. Mr. McMahill pointed out that the statements made by the police officers in last month's hearing were largely dependent upon hearsay evidence. Due to the confusion involving the two citations into court, as well as the notice of show/cause hearing, and on the basis that new evidence can be presented, Mr. McMahill requested that the Authority grant a rehearing at this time. After some discussion by the Authority, Authority member Acott made a motion, seconded by Authority member Veazie, to hold a rehearing on the show/cause hearing for Sportsman Boss Hogg's, 210 Walnut. Yeas: Acott, Bullard, Morgan, and Veazie. Nays: Monaghan and Spaulding. Assistant City Attorney Paul Eckman briefed the Authority of the facts on the alleged violation, noting that on June 14, 1986, at approximately 10:43 p.m., the establishment allowed an intoxicated person, identified as -5- September 10, 1986 15-year old R. D. Clark, to loiter on the premises. Paul explained for the purposes of this hearing, the City is charging the establishment with serving an apparently intoxicated person, allowing an intoxicated person to loiter on the premises and serving a minor under the age of 21 years. Officer David Mickelson, was sworn, and stated he is a police officer with the City of Fort Collins. Officer Mickelson stated he and Officer Dolon were assigned to walk the bars in the Old Town area the evening of June 14. Upon entering Boss Hogg's, 210 Walnut, Officer Mickelson stated he observed an individual in the bar who was both obviously a minor and intoxicated. He stated the minor was holding a beer bottle in his hand, had blood shot eyes and was having difficulty with his balance (staggering). He explained that the minor attempted to hide within the crowd and when he started to approach the minor two other patrons stopped him in an attempt to stall him. He then noticed that the minor started to run out of the bar. Officer Mickelson stated he fled after the minor, then returned with him to the bar to speak with his mother. At that time, he placed the minor under arrest and transported him to the Police Department. A breathalyzer test was conducted and the results were .093. Officer Mickelson stated the minor told him while he was in the bar he was served two beers by an individual named Scott Jones. After giving the statement, the minor was released into the custody of his mother. Shortly after that, Scott Jones arrived at the Police Department and gave a written statement that he did not serve the minor while in the bar but that the bartender on duty, Charles Walker, did in fact serve the minor. Mr. Jones also included in his written statement that the minor and his mother were at a party prior to arriving at the bar and that the minor came to the bar intoxicated. Officer Mickelson stated he later returned to the bar and issued a summons to the bartender on duty. Assistant City Attorney Paul Eckman established testimony with regards to Officer Mickelson's qualifications and training in conducting breathalyzer tests and detecting intoxicated individuals. City's Exhibits A and B were submitted and received into the record as evidence. City's Exhibit A was identified as the written statement from Scott Jones. City's Exhibit 8 was identified as the copy of the results from the intoxilyzer test. Prior to cross-examination by Mr. McMahill, Officer Mickelson answered questions from the Authority. During cross-examination, Officer Mickelson stated he did not actually see the minor take a drink from the beer bottle. Officer Mickelson stated the breathalyzer was not conducted in the same manner as a DUI since the minor was not driving. He explained that the test was done for purposes of this hearing only. Sgt. Ray Martinez, was sworn, and stated he is employed as sergeant at the Fort Collins Police Department. Sgt. Martinez stated his qualifications and experience in detecting intoxicated people. He stated during his contact with the minor it was obvious that he was intoxicated. Sgt. Martinez added that the breathalyzer test confirmed his level of intoxication. He stated the minor admitted to being served two bottles of beer at the bar by Scott Jones. During the time Scott Jones was at the police department, Sgt. Martinez stated Scott did not deny the fact that the minor was served. It was noted that Scott Jones gave a written la September 10, 1986 statement stating that he did not serve the minor but that the bartender on duty served him. Sgt. Martinez answered questions by the Authority. During cross-examination, Mr. McMahill stated the breathalyzer test was not conducted in the same manner as it would be for a DUI. Therefore, he stated the test did not produce as accurate of results. Sgt. Martinez stated the test administered was accurate and could be admissible in a DUI case. Mr. McMahill stated that there was no test calibration conducted on this matter. Sgt. Martinez admitted that a test calibration would be required on a DUI case. Detective Jim Broderick, was sworn, and stated he conducted his investigation on June 25, 1986. During his interview with Mr. Charles Walker, bartender on duty the evening of June 14, 1986, Mr. Walker stated the minor and his mother entered the bar at approximately 10:15 p.m. He stated he served the mother and one of her friends two beers but never served the minor anything. Mr. Walker stated he overheard some conversation which led him to believe that the minor had been drinking at a party he attended with his mother prior to arriving at the bar. Detective Broderick stated Scott Jones explained to him during his interview that he is a part-time bartender at Sportsman Boss Hogg's but was not employed there that evening. Mr. Jones denied serving the minor or seeing the minor drink anything while in the bar. Mr. Jones justified changing his story from a previous statement to the police on June 14 by explaining that he was angry that the minor implicated him and because he was intoxicated. That same day, Sharon Freeburg, mother of the minor, was interviewed. Ms. Freeburg stated that her son, R. D. Clark, was at a party with her that day and admitted that her son was drinking at the party. When the minor was interviewed, Detective Broderick stated the minor admitted to drinking three or four beers at the party. The minor also stated he was in the bar earlier in the day to play a game of pool prior to going to the party. At that time, he stated he drank a coke. Detective Broderick answered questions by the Authority. During cross-examination, Jim Broderick stated he has no witnesses or evidence to prove that the minor was served any alcohol in the bar the evening of June 14. When asked to give a definition of loitering, Detective Broderick stated the ordinance does not give any specific information. City's Exhibits C, D, E, and F were submitted and received into evidence. City's Exhibit C was identified as the written statement from Charles Walker; Exhibit D was identified as the written statement from Scott Jones; Exhibit E was identified as the written statement from Sharon Freeburg; Exhibit F was identified as the written statement from Raymond Clark. Mr. Thomas Wahlberg, 700 East Drake Road, was sworn and stated he was not present the evening of June 14 but that Charles (Butch) Walker was on duty that evening. He stated his policy is to refuse service to intoxicated persons. Mr. Wahlberg further stated that his employees have attended the courses conducted by Officer Ernie Tellez where they are told how to deal with intoxicated people. Mr. Wahlberg stated he felt his employees were -7- September 10, 1986 abiding by those guidelines yet they got a violation for loitering. If the Authority reinstates the 30-day suspension, Mr. Wahlberg stated he would have to file bankruptcy. During cross-examination, Mr. Wahlberg stated Mr. Scott Jones has worked for him on a part-time basis in the past. Mr. Wahlberg explained that when it gets busy, Mr. Jones still had his authorization to go behind the bar and help out. He noted, however, that both Mr. Jones and Mr. Walker are no longer employed by him. It was noted that there was an error made in stating that Detective Broderick told Mr. Wahlberg the case had been dismissed. Ms. Sharon Freeburg, 2300 East Horsetooth Road #121, was sworn and spoke of the party she and her son attended the afternoon of June 14, 1986. Ms. Freeburg stated that she did not observe her son drinking at the party but knew he had been drinking at the time they left to go to Boss Hogg's. Ms. Freeburg stated that she did not observe her son drink any beer while at the bar. She spoke briefly of the incident at the bar once the police arrived. Ms. Freeburg stated her son has never been in Sportsman Boss Hogg's prior to June 14. During cross-examination by Officer Mickelson, Ms. Freeburg stated the party took place at a friends house who is employed by the Book Ranch in Fort Collins. She stated she was not aware of her son's statement saying he had four beers at the party. Ms. Freeburg answered questions by the Authority. Mr. Charles Walker, 1203 West Oak, was sworn, and stated he was the bartender on duty the evening of June 14, 1986. Mr. Walker stated the bar's policy is not to serve intoxicated people. Mr. Walker stated it is also a rule that no minors be allowed into the bar. He explained that it was getting busy later in the evening when Ms. Freeburg and her son arrived. He further explained that he did not notice the minor in the bar until someone pointed him out. He stated he was busy behind the bar at that moment so he did not take immediate action. Mr. Walker stated the police then entered. From his recollection, he did not think the minor exhibited signs of intoxication. Mr. Walker stated because it was getting busy, he invited Mr. Jones to go behind the bar to make himself and his girlfriend a drink. Detective Broderick cross-examined Mr. Walker. Mr. Walker also answered questions by the Authority. Mr. Scott Jones, 621 Peterson, was sworn and stated he attended the same party the afternoon of June 14. Mr. Jones stated he did not observe the minor drinking at the party. Once he arrived at the bar, Mr. Jones stated he went behind the bar to make two drinks for himself and his girlfriend. Mr. Jones stated he did not serve the minor anything to drink. Mr. Jones stated his second written statement is a true statement. He explained that his first statement was made when he was angry and under the influence. During cross-examination by Detective Broderick, Mr. Jones stated he was intoxicated when giving his statement to Sgt. Martinez. He stated that he saw the minor drinking one beer at the party. 10 m September 10, 1986 Ms. Barbara Smith, 3504 North Shields, Fort Collins, CO, was sworn and stated she was present in the bar the evening of June 14. Ms. Smith stated she has had some bartending experience and feels she is qualified to detect an intoxicated person. She stated she observed the minor in the bar that evening but did not observe any signs of intoxication. It was noted that she left the bar prior to the police officers arriving. It was also noted that she has never seen the minor prior to that evening. Ms. Smith answered questions by the Authority and Detective Broderick. Ms. Mary Wilson, 401 North Summitview, was sworn and stated she was present in the bar the evening of June 14. Ms. Wilson stated she observed no unusual behavior from the minor. It was noted that Ms. Wilson has some past experience as a bartender and feels she is qualified to detect someone who is intoxicated. Ms. Wilson stated she left the bar prior to the police arriving. Ms. Debra Trigg, 1112 Cypress, was sworn and stated she attended the same party the afternoon of June 14. She stated she did observe the minor drinking a beer at the party. Ms. Trigg stated later that evening she went to the Sportsmans Boss Hogg's and observed the minor drinking a glass of water. She stated she feels she knows how to detect signs of intoxication from her experience as an emergency technician and ex -bartender. Ms. Trigg stated she did not observe the minor having any signs of intoxication. Officer David Mickelson gave his closing statement followed by Brian McMahill and Jim Broderick. Assistant City Attorney Paul Eckman reminded the Authority that their agreement before Judge Newton allows the Authority to consider three issues with respect to the minor, R. D. Clark. He stated the Authority should consider three separate violations; i.e., loitering of an intoxicated person on the premises, service of an intoxicated person, and service to a minor. Authority member Veazie pointed out that all the witnesses testifying this evening had all been drinking themselves on June 14. He also stated that all but one witness has at one time or another been employed by the bar. Authority member Monaghan stated he feels the conduct of the establishment is reprehensible. He stated he is convinced that the minor was intoxicated and served at the establishment. He added that the penalty issued at last month's hearing, in his opinion, is not stiff enough. Authority member Spaulding stated the testimony given by the police officers is convincing to her that the minor was intoxicated. She stated she feels the establishment did allow an intoxicated person to loiter on the premises, and served an intoxicated person under the age of 21 years. In her opinion, she stated this establishment is not being conducted in an orderly manner. I September 10, 1986 Authority member Spaulding made a motion, seconded by Authority member Acott, to determine that a violation did occur at Sportsman Boss Hogg's on June 14, 1986. Yeas: Acott, Bullard, Monaghan, Morgan, Spaulding, and Veazie. Nays: None. Authority member Bullard stated he does feel some violations were committed but yet feels the mother should be held largely accountable. He stated he feels it important not to punish the owner for the misdeeds of the parent. He stated he feels the owner is guilty of not having adequate control of the establishment and would favor no more than a 5-day suspension. Authority member Acott agreed that the establishment has been handled very poorly but stated the owner is to be held responsible. She stated she would favor more than a 30-day suspension. Authority member Morgan stated that the owner has acted negligently and it appears that the employees of the establishment are not properly trained. Authority member Veazie made a motion, seconded by Authority member Monaghan, to levy a 14-consecutive day suspension to be served at the convenience of the owner within the next 30 days and that the premises be properly posted. Yeas: Veazie. Nays: Acott, Bullard, Monaghan, Morgan and Spaulding. Authority member Acott made a motion, seconded by Authority member Morgan, to levy a 45-consecutive day suspension to be served within the next 10 days of this date and that the premises be properly posted. Authority member Bullard stated he does not feel the applicant should be punished on the basis of last month's hearing or the fact that a rehearing was granted. He reminded the Authority that the police originally recommended a one -day suspension. Authority member Monaghan reminded the Authority that the applicant did not appear at the hearing last month after proper notification and that the establishment is obviously out of control. He added that it is not the intent of the Authority to bankrupt the licensee but its intent is to bring the owner into compliance with the City's standards and the standards of the Authority. Mr. Wahlberg stated he has taken steps to correct this situation. He asked the Authority to consider the fact that he was not present at the bar the evening of June 14 because he was out of town attending his daughter's wedding. He assured the Authority that had he been present this situation would not have happened. He stated that Charles Walker and Scott Jones are no longer employed by him. Authority member Bullard stated this is the first violation under Mr. Wahlberg's ownership. Authority member Monaghan stated a series of violations have occurred in the past, all of serious nature, and added that -10- 0 • September 10, 1986 he feels a new owner has to be prepared to take the past history of an establishment with the transfer of the license. The Chairman put the previous motion to vote as follows: Yeas: Acott and Morgan. Nays: Bullard, Monaghan, Spaulding, and Veazie. Authority member Monaghan made a motion, seconded by Authority member Spaulding, to levy a 21-consecutive day suspension to be served at the choosing of the owner within the next 30 days and that the premises be posted and that the licensee appear before the Authority within the next two months to inform the Authority of new management practices that have been put into effect. Yeas: Acott, Monaghan, Morgan, Spaulding, and Veazie. Nays: Bullard. Police Report Due to the hour, Detective Broderick stated there will be no police report this month. Adjournment Authority member Acott made a motion, seconded by Authority member Spaulding, to adjourn. The Chairman put the motion to vote which was unanimously adopted. The meeting was adjourned at approximately 12:35 a.m. ON ' /m 1 Chun -11-