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HomeMy WebLinkAboutLiquor Licensing Authority - Minutes - 09/02/1999LIQUOR LICENSING AUTHORITY SUMMARY SUSPENSION HEARING SAN FELIPE'S CANTINA FORT COLLINS, COLORADO September 2, 1999 6:30 p.m. 2 1 A P P E A R A N C E S 2 Liquor Licensing Authority: 3 John Davis, Chairman Carl Cooper 4 Andy Morris Frank Oldham 5 Rodney Schmitz Aimee Jensen, Deputy City Clerk 6 7 For the Liquor Licensing Authority: Greg Tempel, Esq. 8 Assistant City Attorney 9 For the Fort Collins Police Department: 10 Mary Pat Daviet, Esq. Special Prosecutor 11 12 For San Felipe's Cantina: Timothy J. Dow, Esq. 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X 2 WITNESSES FOR THE POLICE DEPARTMENT 3 OFFICER DOUG SMITH Direct Examination by Ms. Daviet 8 4 Cross-examination by Mr. Dow 35 Redirect Examination by Ms. Daviet 45 5 Examination by Mr. Oldham 46 Examination by Mr. Morris 48 6 Examination by Mr. Cooper 49 Examination by Mr. Schmitz 51 7 SERGEANT DON WHITSON 8 Direct Examination by Ms. Daviet 53 Cross-examination by Mr. Dow 66 9 Examination Mr. Oldham 71 10 JUSTIN HOUSTOUN Direct Examination by Ms. Daviet 73 11 Cross-examination by Mr. Dow 86 Examination by Mr. Cooper 88 12 Examination by Mr. Schmitz 91 Examination by Mr. Oldham 93 13 Examination by Mr. Morris 97 14 OFFICER PHILLIP PORTER Direct Examination by Ms. Daviet 97 15 Cross-examination by Mr. Dow 104 Redirect Examination by Ms. Daviet 106 16 TOM DeMINT 17 Direct Examination by Ms. Daviet 107 Cross-examination by Mr. Dow 113 18 Examination by Mr. Cooper 115 Examination by Mr. Oldham 116 19 OFFICER RICH JOHNSON 20 Direct Examination by Ms. Daviet 118 Cross-examination by Mr. Dow 126 21 WITNESSES FOR SAN FELIPE'S CANTINA: 22 RYAN FERRIN 23 Direct Examination by Mr. Dow 130 Cross-examination by Ms. Daviet 138 24 Examination by Mr. Cooper 139, 143 Examination by Mr. Morris 141 25 Examination by Mr. Oldham 141 Examination by Mr. Schmitz 143 4 1 MIKE MOCKLER Direct Examination by Mr. Dow 144 2 Cross-examination by Ms. Daviet 147 Examination by Mr. Cooper 150 3 Examination by Mr. Schmitz 153, 159 Recross-examination by Ms. Daviet 155 4 Examination by Mr. Oldham 156 5 RAY TOMSICK Direct Examination by Mr. Dow 160 6 Cross-examination by Ms. Daviet 168 Examination by Mr. Oldham 170, 180, 188 7 Examination by Mr. Schmitz 173, 177, 188 Examination by Mr. Morris 177, 185 8 Examination by Mr. Cooper 178 Redirect Examination by Mr. Dow 189 9 JESSE HOWARD 10 Direct Examination by Mr. Dow 190 Examination by Mr. Cooper 194 11 Examination by Mr. Oldham 196 12 SAID ZOKHROUF Direct Examination by Mr. Dow 199 13 Cross-examination by Ms. Daviet 204 Examination by Mr. Morris 208 14 Examination by Mr. Cooper 209 Examination by Mr. Oldham 214 15 RICHARD CLAYTON 16 Direct Examination by Mr. Dow 216 Cross-examination by Ms. Daviet 227 17 Examination by Mr. Cooper 230 Examination by Mr. Morris 231 18 Examination by Mr. Oldham 232 19 JAY GONZALEZ Direct Examination by Mr. Dow 235 20 Cross-examination by Ms. Daviet 240 Examination by Mr. Morris 242 21 Examination by Mr. Cooper 242 Examination by Mr. Oldham 248 22 Redirect Examination by Mr. Dow 251 23 MICHAEL SMUCK Direct Examination by Mr. Dow 252 24 Cross-examination by Ms. Daviet 255 Examination by Mr. Schmitz 258 25 Redirect Examination by Mr. Dow 261 5 1 REBUTTAL WITNESS FOR THE POLICE DEPARTMENT: 2 OFFICER RICH JOHNSON Examination by Ms. Daviet 262 3 Examination by Mr. Dow 266 Examination by Mr. Oldham 268 4 Further Examination by Mr. Dow 269 5 6 EXHIBITS INITIAL REFERENCE 7 A -- Letter dated 3-19 127 8 B -- Letter dated 5-20 128 9 1 -- Ad from newspaper 206 10 2 -- Records regarding San Felipe's from 262 Flagstaff, Arizona 11 12 (Exhibits retained by Deputy City Clerk.) 13 14 15 * * * * * 16 17 18 19 20 21 22 23 24 25 6 1 P R O C E E D I N G S 2 CHAIRMAN DAVIS: Good evening. I'm going 3 to call to order the special meeting of the City of 4 Fort Collins Liquor Licensing Authority. It's 5 September 2d, 1999, 6:30 p.m. There is a quorom 6 present. And, Aimee, if you would just do a quick 7 roll call so we know who's here. 8 THE CLERK: Carl Cooper. 9 MR. COOPER: Yes. 10 THE CLERK: Andy Morris. 11 MR. MORRIS: Yes. 12 THE CLERK: John Davis. 13 MR. DAVIS: Yes. 14 THE CLERK: Rodney Schmitz. 15 MR. SCHMITZ: Yes. 16 THE CLERK: Frank Oldham? 17 MR. OLDHAM: Yes. 18 CHAIRMAN DAVIS: Okay. And this meeting 19 tonight is a special meeting to have a review 20 regarding a request for a summary suspension process 21 to be activated. And we have, representing the 22 City -- 23 MS. DAVIET: Mary Pat Daviet from the City 24 of Greeley, special prosecutor. 25 CHAIRMAN DAVIS: Okay. And the other 7 1 parties here -- and I am not even sure -- 2 MR. DOW: Mr. Chairman, my name is Tim Dow, 3 D O W, I'm with The Dow Law Firm in Fort Collins, and 4 we represent the licensee, Michael Murray, LLC, doing 5 business as San Felipe's Cantina. 6 And for the record, I'd like to introduce 7 the owners of San Felipe who have come here for this 8 hearing. Mr. Tom Murray, Mr. Michael Smuck -- raise 9 your hand -- Jim Keller, and Jay Gonzalez. 10 CHAIRMAN DAVIS: Okay. Thank you very 11 much. 12 I believe we'll just -- if I remember 13 correctly -- we don't have many of these so excuse my 14 asking for assistance here occasionally from 15 Mr. Tempel -- but we just have the City present their 16 portion? 17 MR. TEMPEL: That's correct. 18 CHAIRMAN DAVIS: And also I apologize for 19 the tight quarters. I'm told as soon as the planning 20 and zoning meeting winds down, we will be able to 21 open up this area and spread out a little more. So 22 with that. 23 MS. DAVIET: Thank you, Mr. Chairman. 24 Would the authority like to hear a brief opening or 25 would you prefer to go right on into the evidence? 8 1 CHAIRMAN DAVIS: I think we could go right 2 into the evidence would be fine if that -- whoever 3 your first witness, or whatever, could kind of 4 introduce to us an overview of what we're looking at. 5 MS. DAVIET: Okay. The first witness would 6 be Officer Doug Smith. 7 OFFICER DOUG SMITH, 8 having been first duly sworn, was examined and 9 testified as follows: 10 DIRECT EXAMINATION 11 BY MS. DAVIET: 12 Q Would you state your name -- 13 MR. DOW: Excuse me, Counsel, I'm sorry. 14 For the record, Mr. Chairman, I just want 15 to make a brief statement, an objection for the 16 record. We object to this hearing and are requesting 17 a continuance. 18 The applicant was not -- or the licensee 19 did not receive any notification of this -- of this 20 hearing. This has all the earmarks of a public 21 lynching, frankly. The way that the applicant found 22 out about the hearing was when they were called 23 yesterday by a reporter for the Fort Collins 24 Coloradoan, a local newspaper, and told by the 25 reporter that he'd heard that they were about to be 9 1 suspended. 2 So we have had virtually no time to 3 prepare, less than 24 hours notice. This is a 4 serious matter. There doesn't seem to be any need 5 for an emergency or summary hearing. And we feel we 6 should have an opportunity, given the interest that 7 our clients have in the license, to not proceed under 8 these circumstances. 9 CHAIRMAN DAVIS: Okay. Mr. Tempel, what is 10 the requirement by city ordinance? 11 MR. TEMPEL: State statute, section 12 12-47-601, as well as regulation 47-602 of the liquor 13 code, provide that an authority can impose a summary 14 suspension without providing any notice to the 15 licensee if the authority determines that the 16 licensee has been guilty of a deliberate and willful 17 violation of any applicable law or regulation, or 18 that the public health, safety or welfare 19 imperatively requires emergency action. 20 There is no requirement in the statute, nor 21 in the regulations, nor in the city code, for notice 22 to the licensee and, in fact, the Colorado Supreme 23 Court has had an occasion to address this issue and 24 has upheld the constitutionality of a hearing without 25 notice for the purpose of determining whether a 10 1 summary suspension is in order. So I think you can 2 proceed here tonight. 3 CHAIRMAN DAVIS: And our options tonight 4 are that we can listen to the evidence and then we 5 could issue a summary suspension or we could find 6 that there is probable cause for a show cause hearing 7 and set that and allow the license to continue; is 8 that correct? 9 MR. TEMPEL: Yes. You would determine if 10 there's probable cause to believe any violation has 11 occurred, and then reasonable grounds to determine if 12 any of those two elements have been met for summary 13 suspension. 14 Even if -- if you found that there wasn't 15 reasonable grounds for a summary suspension, you 16 could still find probable cause for the violations 17 and set the matter for a hearing. 18 CHAIRMAN DAVIS: Okay. Thank you. So 19 we're going to proceed. 20 Thank you very much. Go ahead. 21 Q (BY MS. DAVIET) Thank you. 22 Officer, would you state your name and 23 occupation for the record, please. 24 A Doug Smith, S M I T H. My occupation is 25 police officer with the City of Fort Collins. 11 1 Q And how long have you been employed in that 2 capacity? 3 A I've been with Fort Collins Police 4 Department for 2-1/2 years. I've been a police 5 officer certified by the state for the last eight 6 years. 7 Q Did you have occasion on -- in the early 8 morning hours of this past August 28th of 1999 to 9 visit San Felipe's Cantina in Fort Collins? 10 A Yes, I did. 11 Q And what was it that gave rise to your 12 appearing at that location? 13 A I observed a disturbance in that location. 14 I was actually working on another call in the Old 15 Town area. I was checking on an alarm that one of 16 the businesses downtown had, and I was finishing that 17 up. 18 And while I was clearing out that alarm, I 19 was standing on the west side of Linden Street, north 20 of the Old Town center, when I saw what looked like a 21 large mob near the entrance of San Felipe's in 22 between that business and the business known as 23 Huckleberry's, which is in the middle of Old Town 24 Square. 25 I was a ways away yet, so I didn't know how 12 1 many people were there, but there were a large number 2 of people, and it seemed to slowly move north towards 3 Walnut Street. And then it got actually out on to 4 Walnut, in the middle of the street, and then moved a 5 bit east from that location. 6 I advised dispatch -- cleared out my other 7 call, advised I would be out with a large disturbance 8 in the area of San Felipe's and Walnut Street, and 9 started to walk that direction to initiate contact. 10 And by that time, there were a lot of 11 onlookers, there were a lot of active participants in 12 the disturbance. I walked that direction and I 13 identified myself as a police officer, Fort Collins 14 Police Department. 15 It was very loud, so I was yelling, and 16 telling the participants to stop fighting, that, 17 again, that I was a Fort Collins Police Department -- 18 or Fort Collins police officer with the Fort Collins 19 Police Department. And I repeated that several 20 times. 21 I was having no luck with anybody listening 22 to me at that point. The fight continued. At that 23 point, I had noticed what I believed were at least 24 three members from the staff of San Felipe's bar, the 25 bouncers that I see on a regular basis, involved in 13 1 the disturbance. 2 I was by myself, so taking into account 3 officer safety situations, the growing mob, the 4 violence of the situation, the lack of cooperation I 5 was receiving by the individuals involved, and the 6 level of intoxication that appeared, I decided to use 7 my pepper spray, which I did. I pepper-sprayed a 8 large number of the people involved in the 9 disturbance, which at that time started to clear them 10 a little bit, when it started to take effect. 11 People at least stopped to look at me and acknowledge 12 me at that point. 13 The fight slowed down, but did continue. 14 One of the individuals involved stopped and looked at 15 me, said something along the lines of, "Why did you 16 spray me?" Something to that effect. I can't be 17 exact. 18 I -- again, I identified myself as a 19 Fort Collins police officer, told him to stop, that I 20 needed to talk to that individual. He said no. He 21 turned and faced away from me at that point. 22 At that time, I noticed what I thought was 23 a beer bottle in his back, left pocket, and it looked 24 like the head of that beer bottle had been broken off 25 so there was a jagged edge on the top of that beer 14 1 bottle. 2 That individual started to run from me 3 north on Linden Street from the location we were at. 4 I again identified myself, I told him to stop, that 5 he was under arrest at that point. I continued to 6 yell and he continued to run. 7 I notified dispatch via my pack-set that I 8 was in pursuit, that I was chasing that individual. 9 I gave the description, location, and direction of 10 travel. 11 At that time, I began to pursue him on 12 foot. I made it about a block. He made a quick 13 left-hand turn and I was able to catch him. In the 14 process of that, I ripped my pants, I had an abrasion 15 to my arm and to my left hand, but I did get -- 16 capture him and take him into custody. 17 I immediately notified dispatch that I 18 needed more officers, that there still was a large 19 disturbance in the middle of the street. And they 20 acknowledged. And by that time, I could hear sirens. 21 Other officers were on their way. 22 This -- the individual that I caught 23 immediately made some utterances to me about being in 24 San Felipe's, that a fight had broken out, somebody 25 hit somebody with a beer bottle. And I took the beer 15 1 bottle out of his back pocket and I asked him if he 2 had hit anybody with a beer bottle and he said no. I 3 asked him why he had this beer bottle in his back 4 pocket and he said something along the lines, that 5 you know how it is, it was time, they make their last 6 calls. "I had a beer. I wanted to finish drinking 7 it so I took it out of the bar." 8 And I asked him why -- why is it empty and 9 why is the top of the bottle broken off? And he 10 couldn't -- 11 MR. DOW: Excuse me. At this time I'm 12 going to object for the record. The officer's 13 testifying with hearsay evidence. It's 14 inappropriate. 15 CHAIRMAN DAVIS: This is not a court. 16 We're just going to hear the evidence and weigh the 17 merit. 18 THE WITNESS: Again, I asked him why the 19 top -- why the bottle was empty if he was drinking it 20 and why it had -- the top was broken off, and why it 21 was in his back pocket. He didn't answer that. He 22 told me that he didn't know. 23 I had already handcuffed him at that point 24 and I did a search of him. I -- and I -- another 25 officer arrived on scene and helped me take that 16 1 person into custody and we placed him securely in a 2 patrol car after searching him and handcuffing him. 3 By that time, I had heard other officers 4 calling out other disturbances, different locations, 5 kinds of satellites off of the original disturbance. 6 And at some point, I heard Sergeant Don 7 Whitson ask for more cars to help control the crowd 8 and control the disturbances that were breaking out 9 simultaneously while we were trying to deal with this 10 chaotic situation. 11 By the time I got back to the original 12 location of the disturbance, several other officers 13 had taken several other people into custody and had 14 began getting witness statements from people 15 involved. And at that time I was standing there and 16 another fight broke out and several officers had to 17 go to assist with that fight. 18 About that time, an ambulance and fire 19 arrived on scene to treat some of the injured 20 individuals. It was my understanding that at least 21 two of the individuals had told officers that they 22 had been hit in the head with beer bottles, at 23 San Felipe's and they needed medical attention, so an 24 ambulance and fire arrived on scene. 25 Ultimately, we had -- we brought more 17 1 officers in to somewhat cordon off the downtown 2 square there at Walnut and Linden to try to keep 3 people out and try to control the situation. And 4 eventually we did gain control. 5 Several people were charged. And that's 6 about it. 7 Q (BY MS. DAVIET) What -- what time of day, 8 approximately, are we talking about that this -- 9 A I think our report says 1:39 in the 10 morning. 11 Q Are you able to -- to describe how much 12 time passed between the time you originally observed 13 the disturbance and ran towards it and the time that 14 you said the department gained control? Can you tell 15 us about how much time? 16 A Just -- I have to give you an estimate. It 17 was quite a little while. I would venture to guess 18 30 to 40 minutes. 19 Q Now, you mentioned earlier in your 20 testimony that you observed some people out in the 21 area of the disturbance that you recognized to be 22 San Felipe's staff. I believe you said people you 23 see on a regular basis. How did you know they were 24 San Felipe's staff, or could you let us know what you 25 mean by seeing them on a regular basis? 18 1 A The security for San Felipe's, I believe, 2 generally wore black shirts, with the San Felipe logo 3 or emblem on their shirt. And the gentlemen I saw 4 that night did have those shirts on. 5 The downtown area is my area, I work that 6 every night, so I run into these people quite 7 regularly. I've talked to their head of security, 8 which is -- I believe his name is Rick. I think he's 9 here tonight. I talk to him on a frequent basis. 10 So I get familiar with these individuals in 11 a -- in addition to the shirts that they wear that 12 identify themselves. 13 Q And the people that you observed as being 14 staff from San Felipe's, these are people that you 15 observed to be outside of the business at that time? 16 A That's correct. They were involved in 17 the -- what I guess I described as a mob when I 18 initially saw it, that pushed out into the street and 19 then up the street a little bit, and they were 20 actively involved in -- in the disturbance. 21 Q Can you describe in just a little more 22 detail, what you mean by saying that some of the 23 San Felipe's staff was actively involved in the 24 disturbance? What did you observe? 25 A Well, I -- like I said before, it was quite 19 1 chaotic. There was a lot of pushing and shoving 2 going on, there were people hitting each other. I 3 saw Rick, he was trying to -- and I'm sorry if I'm 4 getting his name wrong, but I think his name is 5 Rick -- and he was trying to control one of the 6 individuals involved. And I -- I believe that 7 individual was one of the main instigators of the 8 original disturbance, and they were in somewhat of a 9 pushing match while he was trying to control this 10 individual. 11 The other two I saw were trying to hold 12 people back. And, like I said, it was just -- it was 13 a big mess with a lot of people and punching and 14 pushing and hitting each other. 15 Q Are you aware of -- of whether or not 16 anyone from San Felipe's had called the police to 17 report this disturbance? 18 A I'm not aware that anybody did call. I -- 19 like I said, I came on to this call by eyewitness. 20 Q The -- how much opportunity did you have -- 21 apart from facing the guy that you described earlier, 22 how much of an opportunity or chance did you have to 23 observe the crowd and the members of the crowd in 24 general? 25 A Initially, as far as numbers, you know, 20 1 I -- it would be hard to say. I would venture to 2 guess there were at least 20, 25 people there. And 3 if not actively participating, they were watching. 4 It all happened pretty quickly by the -- 5 from the time I contacted them to the time I had to 6 chase this individual down. And at that point I was 7 focused on him and getting him into custody and 8 keeping myself safe, so I kind of lost count of the 9 number of people or what was going on back at the 10 original location. 11 When I did make it back, there were people 12 everywhere. There were people in the street, there 13 were people in the square, there were people in the 14 front of businesses watching, onlooking, there were 15 people hollering. People that had been arrested were 16 trying to instigate another fight, and -- like I 17 said, it was quite chaotic, and at that point there 18 were a lot of people there. 19 Q And when you say you observed people in the 20 street, are you referring to people out in the street 21 where vehicular traffic is driving? 22 A Yes. 23 Q Based on the observations you were able to 24 make, or the ones you've just described, what was 25 your opinion as to their level of intoxication, if 21 1 any, at that time? 2 MR. DOW: Objection. There's no foundation 3 of evidence on that and he has no expertise. It's -- 4 CHAIRMAN DAVIS: We're not a court. We'll 5 have your witnesses. 6 THE WITNESS: The individuals that I spoke 7 with personally, the individual that I chased down, 8 had an obvious strong odor of an alcoholic beverage 9 coming from his breath. He had bloodshot, glazed 10 eyes, his speech was somewhat slurred. 11 Other individuals that I spoke to that were 12 involved in the original disturbance fit the same 13 criteria. There was a lot of alcohol there and there 14 were a lot of intoxicated individuals. 15 Q And, Officer, I think that you mentioned 16 earlier that you'd been certified as a peace officer 17 for eight years, and in the Fort Collins Police 18 Department for two. During that period of time, and 19 prior to last weekend, have you ever had an 20 opportunity to contact or deal with persons suspected 21 of consuming alcohol? 22 A Many times. 23 Q And can you estimate for the board how many 24 times? 25 A Well over a thousand. 22 1 Q Do you have any -- any specialized training 2 in regard to the detection and content of persons 3 suspected of consuming alcohol? 4 A Yes, I do. 5 Q And would you describe briefly what that 6 training is. 7 A I've been through several training courses 8 for DUI detection, sobriety maneuvers, roadside 9 maneuvers, to determine whether a person is capable 10 of driving under Colorado State law. 11 Been to -- I can't name all the classes 12 I've been to. I've been to many classes, many hours 13 of training in that field. I've been to classes 14 reference training for bar situations to determine if 15 people have been drinking, fake ID kind of thing, if 16 they've been drinking upon contact, that type of 17 thing. 18 Like I said, I can't give you the dates 19 right now, but I've been in training. 20 Q Are there particular characteristics that 21 you look for in determining whether someone may have 22 consumed alcohol? 23 A Yes. 24 Q What types of characteristics do you -- 25 A Just a few would be bloodshot, glazed eyes, 23 1 unsteady on their feet, slurred speech, mussed 2 clothing, not neatly kept. More obvious signs, 3 vomiting, not able to stand up, strong odor of 4 alcohol, basic things. Those are just a few. 5 Q Based on your training and experience, in 6 your opinion is there a change of demeanor associated 7 with a person that's been consuming alcohol? 8 A Yes. 9 Q And what type of change do you expect to 10 occur? 11 A Depends. It affects people differently. 12 Many people become violent. A common saying is that 13 liquid strength turns you into Superman. They decide 14 they want to fight, after they've been intoxicated. 15 Some people might just pass out and become very laid 16 back, want to go to sleep; happy all the time. It 17 just depends on the individual. 18 Q All of the characteristics that you've just 19 described, did you observe any or all of those 20 characteristics with regard to the people at this 21 particular disturbance that you described? 22 A I would say yes. 23 Q Which characteristics did you observe of 24 those people, or did you observe all of them? 25 A Well, initially, from the beginning, I 24 1 would say the rationale of the people involved -- 2 obviously, I'm dressed in a uniform similar to what I 3 have on tonight that notifies everybody that I'm a 4 police officer. I verbally identified myself as a 5 police officer many times. I -- I even went so far 6 as to tell them which police department I was with. 7 In those -- in that situation, your average 8 individual is not going to pick a fight or continue 9 to be in a physical altercation with a police officer 10 present, whether it be they feel that they're doing 11 something wrong or fear of going to jail, or any 12 number of reasons, but your rational, sober, average 13 person, unless under special circumstances, is 14 generally not going to continue to fight or pick a 15 fight with officers present because of the reasons 16 I've listed. So that initially I saw that. 17 But then, again, after physically 18 confronting a person, to have that individual turn 19 and run from me makes me think that there's something 20 else going on there, because, again, the rational 21 person is not going to run from a police officer when 22 the police officer asks to talk. 23 And then, again, the physical 24 characteristics that we spoke about, the odor of 25 alcoholic beverage, the mussed clothing, the 25 1 unsteadiness on the feet, the slurred speech, those 2 were all consistent with things that I saw that 3 night. 4 Q You mentioned earlier that the gentleman 5 you chased down made a comment about having been at 6 San Felipe's. Did you form an opinion during the 30 7 to 40 minutes that you described had elapsed, as to 8 whether any of the other members of the crowd or the 9 disturbance had been at San Felipe's? 10 A The individuals that I spoke to, 11 personally, did say that they had been in 12 San Felipe's. The individual that I had arrested 13 said that he had come down from Greeley with a large 14 group of friends, seven or eight friends, and that 15 they were partying in San Felipe's. I think he said 16 it was a birthday party, something along those lines. 17 The other officers that I spoke to that had 18 interviewed people at the scene said that a large 19 number -- a large majority of the people that they 20 had spoken to had been in San Felipe's when the fight 21 occurred, and followed it out to the street. 22 So, yes, several of the people that I 23 contacted had mentioned coming from San Felipe's. 24 Q You -- you alluded to this a little bit 25 earlier, but would you describe, please, your current 26 1 assignment within the Fort Collins Police Department. 2 A I'm assigned to District 1, which is the 3 northeastern part of Fort Collins, which includes the 4 downtown Old Town area. I am -- part of my 5 controlled functions during the night are foot patrol 6 in the downtown area, interacting with the downtown 7 businesses. And I work Wednesday through Saturday, 8 so I'm -- I'm downtown for every weekend, nights, in 9 one capacity or another. So the bars and the 10 downtown area is part of my patrol. 11 Q So as part of the interaction that you just 12 described, have you had interactions or contacts 13 prior to this past weekend with San Felipe's or 14 persons who have been in San Felipe's? 15 A Yes, I've had many. 16 Q Could you describe briefly for the 17 authority what types of prior contacts you've had. 18 A I -- okay. I believe San Felipe's opened 19 in January of this year, if I remember correctly. 20 Since that time, I've had numerous contacts with them 21 for welfare checks, fights, under-age patrons, fake 22 IDs, to list a few. I don't have the documentation 23 in front of me; I can't give you exact dates and 24 times. 25 One of the first incidents, I guess, that I 27 1 was involved in was a large fight there, and I don't 2 remember the exact date, but I would guess it was in 3 February of 1999. We got a call of a large 4 disturbance at San Felipe's. I was one of the first 5 officers to arrive on scene. When I arrived on 6 scene, I saw a fight and it was occurring on the 7 opposite side of the square of San Felipe's, right 8 off of Walnut Street, so it would have been the 200 9 block of Walnut Street on the south side of Walnut, 10 near The Right Card, which is located just at the 11 corner of 200 Walnut right there. 12 I observed, again, one of San Felipe's 13 security personnel involved in a struggle with 14 another individual, and he ultimately had taken the 15 individual down to the ground and was on top of him, 16 and he was being assisted by another staff member of 17 San Felipe's. And then there was also another 18 individual trying to pull the San Felipe's personnel 19 off the guy on the pavement. And then there were a 20 couple other people that were involved a ways away. 21 I investigated that. Turned out to be a 22 disturbance that had broken out inside the bar, two 23 friends, or so-called friends, got into a fight. The 24 security staff tried to break it up, it kind of 25 snowballed from there. A few more people got 28 1 involved. Ended up going across the square. 2 The -- where they ended is -- I would guess 3 is a couple hundred feet, 150 feet, away from the 4 entrance of San Felipe's. We ended up taking two 5 individuals to jail and Sergeant Whitson, I believe, 6 was on scene at that one as well, and spoke to the 7 staff at San Felipe's about leaving their 8 establishment, being involved in disturbances outside 9 of their business, outside of their entrance. And 10 like I said, we ended up arresting, I think, two 11 people out of that. 12 Some of the other contacts from the get-go, 13 we were getting complaints of occupancy, that it was 14 overcrowded. Had the fire department come in a 15 couple times, and they ran it and checked it out as 16 well. Whether or not there were citations or 17 penalties for that, I'm not sure. 18 Also, we started getting complaints from 19 the get-go about our office, which is located in a 20 downstairs office building in District 1, and is 21 almost directly underneath San Felipe's and just off 22 Walnut. And to get into our substation, you have to 23 walk down a flight of stairs, and then there's a 24 small entranceway into the door. 25 People started telling us immediately that 29 1 patrons of San Felipe's were coming down to our 2 business after the closing of the business, urinating 3 on our door and on our entrance, and vomiting down 4 there and making a real mess. 5 Our officers -- day-shift officers, did 6 find that to be a problem almost every morning, that 7 there were vomit or urine or both at the base of our 8 office. 9 And, again, that was coming from citizens 10 who said that they were customers or they observed 11 this behavior down there. 12 I also had been involved with several other 13 fights in San Felipe's, or near San Felipe's. One 14 instance I was doing a bar check, myself and another 15 officer. I was talking to Rick about how things were 16 going and observed two guys start fighting right 17 behind me in the bar. The bar was packed; could 18 barely walk through. 19 I immediately made contact with these two 20 individuals, again identifying myself. They would 21 not listen to me, would not stop fighting. And this 22 was a very dangerous situation because it was in the 23 middle of the bar with a full bar of people that you 24 could hardly walk through to begin with. 25 And I ended up wrestling one of these guys 30 1 to the ground, and the other guy was continuing to 2 punch the other guy, and had several officers respond 3 to that, to assist. Finally controlled those two 4 individuals. They were also arrested. 5 But that was -- that was a rather dangerous 6 situation. They had several welfare checks there, 7 contacted by citizens. Contacted anonymously by 8 phone about individuals who had been drinking 9 unsafely, and were so intoxicated that they were 10 basically incapacitated. 11 About a month -- a little -- maybe a little 12 over a month ago, I was on foot in the Old Town area 13 with Officer Marcus Hopkins. We were contacted at 14 the District 1 substation by a citizen who said she 15 had been a patron at San Felipe and she saw these two 16 guys drinking at San Felipe and she was very 17 concerned about their welfare. That one of them was 18 passed out on the bench in front of San Felipe's near 19 Huckleberry's and that the other one didn't seem to 20 be able to -- or couldn't seem to be able to wake him 21 up. 22 Myself and Officer Hopkins went to their 23 location and did find two male individuals. The one 24 male individual was laying on the bench. I asked the 25 other male if he was okay. He said that he was, he 31 1 was just trying to get him home, that they had been 2 at San Felipe's and several other bars, but they had 3 been drinking heavily. 4 I tried to wake up the individual that was 5 passed out and I could not. I gave him the chest 6 rub. I could not get any -- anything out of him at 7 all. I had to call an ambulance. The ambulance 8 personnel arrived and they could not wake him up. 9 They got a stretcher, they put him on the stretcher, 10 and they continued to treat him and try to wake him 11 up and they did finally get some response out of him 12 on the way to the ambulance, and he was -- he -- he 13 just went out of control and started fighting with 14 them. He just -- he didn't know what was going on, 15 and then he passed out again. They couldn't wake him 16 up. 17 About that time, the other individual 18 passed out, the other -- they were twin brothers and 19 the one that was taking care of the passed-out 20 individual, passed out as they were trying to get his 21 brother into the ambulance. Ultimately both of those 22 individuals had to be transported to PVH to be 23 treated. There have been several of those calls. 24 I arrested an individual one evening while 25 on patrol who was under age. I believe he was 18. 32 1 And he was driving in the 100 block of West LaPorte 2 in a very breathless manner. He had a lei around his 3 neck, which San Felipe's hands out. They also hand 4 out sombreros. 5 I asked this individual where he got the 6 lei. He ultimately told me that he had used a fake 7 ID to get into San Felipe's and that he was really 18 8 years old. And he was ultimately arrested for DUI 9 and had a very high blood alcohol content. 10 And there have been many other cases. I -- 11 but I don't have them documented in front of me right 12 now. 13 Q When you say that this under-age individual 14 that you contacted was driving recklessly in the 15 area, what do you mean, specifically, by that? 16 A I -- 17 CHAIRMAN DAVIS: Excuse me. Maybe he could 18 tell us more about the testimony -- testimony about 19 the people that he's seen in San Felipe's or what's 20 happening there instead of these things that are 21 occurring outside and afterwards. 22 Q (BY MS. DAVIET) Okay. One more question 23 along these lines. 24 You described a number of disturbances and 25 that sort of thing that you either responded to or -- 33 1 or observed with regard to San Felipe's. Of the 2 events that you've described, what percentage of 3 time, or how many of those times has it been required 4 that fire and ambulance respond? 5 A A very high percentage. I won't say 6 100 percent, but a very high percentage. And when 7 I'm talking about that, I'm talking about the brawls 8 that have been involved in. There are many little 9 disturbances that break out that can be broken up and 10 people sent on their way, but the actual fights I'm 11 talking about, as I remember, every time an ambulance 12 is coming to treat somebody with either a broken 13 nose, a cut lip, a cut hand, something along those 14 lines. 15 Q And to your recollection, were these 16 injured parties all people who had been in 17 San Felipe's? 18 A Yes. 19 Q Now, the times that you -- that you talked 20 about your foot patrol and being inside San Felipe's, 21 do you do what they sometimes refer to as bar checks, 22 that sort of thing, when you're on foot patrol? 23 A Yes. 24 Q And in doing that, does that entail you 25 going into San Felipe's on a frequent basis? 34 1 A Occasionally. 2 Q And on the times that you have gone in 3 there, whether on bar check or in response to a call 4 or concern, how would you describe the level of 5 intoxication that you observed of the patrons in 6 San Felipe's? 7 A My personal opinion is the -- a lot of the 8 people that I come into contact with, either in front 9 of San Felipe's, or that I have come into contact 10 with in the bar, have been highly intoxicated. 11 There's an area outside of San Felipe's in 12 the entrance area where they develop a line that the 13 individuals wait to get into the bar. If it's 14 already at the top of the occupancy, they have to 15 wait until somebody leaves. 16 I have contacted many individuals in that 17 line to get into the bar that are obviously highly 18 intoxicated, in my opinion. 19 Q How would you describe the size of the 20 crowd or group of people who were inside the bar at 21 the times that you've been in there? 22 A Very large. I -- we don't have to go into 23 the bars to do bar checks. I sometimes just stand 24 outside and look in and, quite frankly, I don't enjoy 25 going into San Felipe's when I'm working. It's very 35 1 hard to maneuver through the crowd, it's a very small 2 place, it's very tight, and I don't feel comfortable 3 going there because of officer safety reasons, to be 4 honest with you. 5 MS. DAVIET: I believe that's all the 6 questions I have for this witness at this time. 7 CHAIRMAN DAVIS: Thank you. Mr. Dow. 8 CROSS-EXAMINATION 9 BY MR. DOW: 10 Q Thank you. Officer Smith, shortly after 11 this incident, you prepared a written narrative, your 12 standard incident report; is that correct? 13 A Yes, I did. 14 MR. DOW: Mr. Chairman, does the board 15 have those narrative reports or were you, Counsel, 16 going to introduce those? 17 MS. DAVIET: No. 18 MR. DOW: Okay. 19 CHAIRMAN DAVIS: We do not have them. 20 Q (BY MR. DOW) When did you prepare that 21 report? 22 A Approximately three -- 3:00 a.m., 23 3:30 a.m., the night of August 28th. 24 Q So that would have been very shortly after 25 the incident when you returned to -- to your office, 36 1 correct? 2 A Yes, sir. 3 Q And in your report, you indicated that -- 4 did you have a chance to review this report before 5 you came to this hearing? 6 A I've looked over it once, yes. 7 Q All right. In your -- in your report, you 8 indicated that upon your arrival, that there were two 9 or three bouncers from San Felipe's involved and that 10 they had subdued an individual. Do you recall that? 11 A Do I recall documenting that? 12 Q Yes. 13 A After looking at my report, yes, I do. 14 Q Okay. And at the time you first came upon 15 the scene, then, you recognized the staff from 16 San Felipe's, who were there restraining an 17 individual? 18 A I'm sorry, could you ask the question -- 19 Q When you first -- when you first came to 20 the scene, in your report you indicated that you saw 21 that -- that an individual was being restrained by 22 staff from San Felipe's; isn't that correct? 23 A Well, I don't think I reported that that 24 was my immediate observation. I think eventually I 25 did indicate that I believed one of the individuals, 37 1 who I identified as Rick, controlling -- or trying to 2 control one of the persons involved -- 3 Q Right. In fact, in your report you stated 4 that the manager of security for San Felipe's was 5 controlling the individual down on the ground, 6 correct? 7 A Okay. 8 Q And then that -- at that time -- let me ask 9 you this question: Have you had any special training 10 in crowd control and those types of things? 11 A Yes, I have. 12 Q Were you involved in the recent training 13 within the last week or two that FCPD conducted that 14 was documented in the local newspaper? 15 A I'm not exactly sure of which training 16 you're -- 17 Q How about out by the football field? 18 A In the last week or two, no, I wasn't. 19 Q Okay. Were you involved in the -- in the 20 disturbance downtown, near Old Town, this year after 21 the Super Bowl? 22 A The Super Bowl riot, yes, I was. 23 Q And were you involved in the riot that 24 occurred over in the western part of the campus there 25 in the -- in that area? 38 1 A Yes, I was. 2 Q Were you ever told by anyone in your 3 department, or within the city of Fort Collins, to 4 target San Felipe's or to make a special lodge -- 5 MS. DAVIET: Objection, to the extent that 6 that would involve any privileged communication that 7 the officer is not legally at liberty to provide. 8 CHAIRMAN DAVIS: I think that he is allowed 9 a lot of latitude, that you have -- if he feels 10 there's some kind of breach, then he needs to talk to 11 his people. But I think he can answer questions like 12 that, if you're going to target someone. 13 THE WITNESS: Well, your question was if I 14 was ever directed to target anybody. No, I was not. 15 Q (BY MR. DOW) Officer John Pino is someone 16 you work with in connection with your downtown and 17 your liquor enforcement activities; is that correct? 18 A He's my supervisor, sergeant John Pino. 19 Q And you have an occasion to talk to 20 Sergeant John Pino in connection with your activities 21 in the Old Town area. 22 A Yes, I do. 23 Q And in particular, you have discussed, 24 haven't you, San Felipe's with Sergeant Pino? 25 A Yes, I have. 39 1 Q And, in fact, you've discussed activities 2 that related to that with Sergeant Pino within the 3 last several days; isn't that correct? 4 A Actually, I haven't had an opportunity to 5 meet with Sergeant Pino for well over a week. 6 Q Have you had any discussions with him 7 relative to this, since this incident last Friday 8 night? 9 A I spoke with him briefly tonight before 10 coming over here, that I would be attending this 11 hearing and testifying at this hearing. 12 Q Now, as a part of your training, is it 13 true that you are trained in terms of crowd-control 14 type of situations to -- to try to immediately 15 control, as best you can, dangerous situations 16 where -- where people are endangered? 17 A I'm a member -- a trained member of our 18 mobile field force team, which is a crowd-control 19 team, which is trained to handle public disturbances 20 such as riots. 21 Q Right. And as a part of your training and 22 normal practice, it is true, is it not, you would not 23 leave a scene where there was a fight or endangerment 24 in process? That's correct, isn't it? You wouldn't 25 just leave? 40 1 A I'm not going to go home, if that's what 2 you're indicating. 3 Q So the answer is -- the answer is you would 4 not leave? 5 A I would not -- I guess I don't understand 6 your question. I would not leave the area 7 completely? I would not leave -- 8 Q You would not leave the scene -- you would 9 not leave the scene of the activities if you felt 10 there was any serious endangerment to the public; 11 isn't that correct? 12 A Definitely no. 13 Q Okay. Yet in your report, you indicated 14 that -- that since the security staff at San Felipe's 15 had the individual under control and on the ground, 16 that you proceeded to leave and chase one individual 17 down across the street, down the next block and down 18 an alley to try to pursue and apprehend him; isn't 19 that correct? 20 A As I reported, after I administered the 21 pepper spray to the crowd, and then I did see it was 22 taking some effect, and the bouncer from San Felipe's 23 was trying to control the other individual, and since 24 this individual that I had confronted turned and ran, 25 I felt that it was important that I try to take this 41 1 individual into custody, that -- after seeing him 2 turn around, seeing that beer bottle in his back 3 pocket, the head was broken off of that beer bottle, 4 which in my mind is a deadly weapon, I needed to 5 control that individual. 6 Q So you left the immediate scene. But you 7 would not have left the immediate scene had there 8 been any ongoing immediate danger; isn't that 9 correct? 10 A There's immediate danger everywhere, and 11 I'm one officer, and I deal with it as best I can. 12 Q And when you maced these people, in fact 13 you maced the staff at San Felipe's, including the 14 manager of security, whom you know, correct? 15 A Some -- I'm sure some did get in -- get on 16 the employees of San Felipe's. 17 Q So you left the incident to chase this one 18 individual? 19 A Yes, I did. 20 Q And at that time, there were no other 21 officers on scene; isn't that correct? 22 A Not yet. 23 Q And at that time, also, you indicated in 24 your testimony there were about 20 to 25 people there 25 watching? 42 1 A As I remember. 2 Q Okay. You testified this was then getting 3 on to after 1:45 a.m. in the morning. Isn't that 4 about the time that most of the bars close and the 5 crowd lets out of the bars? 6 A They close down at 2:00, start filtering 7 out any time before that. 8 Q And isn't it common on Friday nights around 9 that time that there is a fair amount of activity 10 from patrons leaving local establishments, going 11 through Old Town, to go wherever they are going to 12 go? 13 A Sure. 14 Q And those people aren't all from 15 San Felipe's, are they? 16 A No. 17 Q In fact, you've been called to other 18 disturbances in other bars, in Old Town, haven't you? 19 A You bet. 20 Q And you have been called to break up fights 21 in other bars in Old Town? 22 A You bet. 23 Q Now, in the night in question, isn't it 24 true that, in fact, you were actually never in 25 San Felipe's facility? 43 1 A Not during this disturbance, no, I wasn't. 2 Q So you didn't observe any of the activity 3 that has occurred in there that night? 4 A Actually, inside the establishment, no. 5 Q So you have no personal knowledge or 6 observation as to what occurred in San Felipe's or 7 what, if any steps, San Felipe's staff took in 8 response to that inside their own establishment, do 9 you? 10 A Other than through my investigation and 11 what I was told. 12 Q No knowledge of your own in that regard? 13 A Other than the employees of San Felipe's 14 being involved in a large disturbance right outside 15 their front door. 16 Q You testified about other incidents prior 17 to this at San Felipe's. Isn't it true that with 18 respect to many number of those, that you would -- 19 you would have been called or contacted by staff at 20 San Felipe's if there was a problem? 21 A Yes. 22 Q And you testified about one other large 23 fight, in fact, that was outside on Walnut Street, 24 which is a half block or more away from San Felipe's; 25 isn't that correct? 44 1 A Yes. 2 Q Now, the individual that you chased down 3 and arrested, according to your testimony, is an 4 individual by the name of Harold Ramirez, correct? 5 A I believe so. I don't have that report. 6 Q And did you arrest him and subsequently 7 cite him for any violations or offenses? 8 A He was charged with disorderly conduct and 9 obstructing -- obstructing a police officer. 10 Q Okay. And he told you that he and his 11 friends -- according to your report, that he and his 12 friends came up from Greeley for a friend's birthday 13 party? 14 A I believe that's what he told me, yes. 15 Q You testified that you had had a number of 16 occasions to come and check on San Felipe's and so 17 forth. Isn't it true that during all those times, 18 and after all those many contacts, that you never 19 issued any citations to San Felipe's? 20 A I never did personally, no. 21 Q Okay. In fact, are you aware of the fact 22 that no liquor violation citations have been issued 23 to San Felipe's since they opened in February of this 24 year? 25 A I'm not aware of those statistics. 45 1 Q This -- this hearing was requested by the 2 FCPD; is that correct? 3 A To be honest with you, I don't know. 4 Q Were you involved in any meetings or 5 discussions since the incident, relative to whether 6 or not FCPD would request that this hearing be held? 7 A No, I was not. 8 Q So you don't know who made the decision to 9 have this hearing? 10 A No, I am not. 11 Q Nothing further. 12 REDIRECT EXAMINATION 13 BY MS. DAVIET: 14 Q Officer Smith, you described a number of 15 events occurring that you've said were located on the 16 square, or across the square from San Felipe's, or a 17 half a block away in the street, various things. 18 What was it about those events and 19 disturbances that causes you to associate those with 20 people having been in San Felipe's? 21 A Well, everybody involved said that they had 22 been in San Felipe's when the disturbance broke out 23 and, secondly, that every disturbances involving 24 staff of San Felipe's. 25 Q Did you have any reason in receiving that 46 1 information from these people, including the 2 San Felipe's staff, to believe that they were not 3 being truthful with you about where they had been? 4 A No, I did not. 5 Q That's all the questions I have. 6 CHAIRMAN DAVIS: Okay. Do you have -- 7 MS. DAVIET: That's all I have. 8 CHAIRMAN DAVIS: That's all you have for 9 this witness? Thank you very much, Officer. 10 MS. DAVIET: I would ask if Officer Smith 11 would be released -- 12 CHAIRMAN DAVIS: I'm sorry, I apologize, 13 the authority might have some questions for you. 14 EXAMINATION 15 BY MR. OLDHAM: 16 Q Do you have any idea, Officer, what the 17 authorized occupancy of San Felipe's is? 18 A I want to say 144, but I'm not absolutely 19 sure. 20 Q Okay. Do you think that's pretty close? 21 A I think it is. 22 Q Okay. Do you have any idea how many people 23 were in there that night prior to this episode 24 occurring on August 28th? 25 A To be honest with you, no, I don't. 47 1 Q When's the last time you were in 2 San Felipe's before the 1:39 time that you gave us on 3 either the 27th or the 28th? 4 A I was at the entrance of the bar earlier 5 that evening and I cannot give you a time. I'm not 6 sure -- 7 Q Before midnight or after? 8 A I would say before midnight. 9 Q What were your observations then? 10 A The bar was full. 11 Q Did you have any concern about the unruly 12 atmosphere at that time? 13 A I -- you know, I have concern every night. 14 And I can't just say that I have concern about 15 San Felipe's, I -- I walk by all these bars, and I 16 know the potential is there that something could 17 happen. If you're asking me if I specifically 18 remember anything that evening that would cause me to 19 raise my awareness or my alarms, I don't remember any 20 specific incidents that night. 21 Q Was there anybody that you talked to or saw 22 when the disturbance was taking place, at about 1:30 23 in the morning, that would lead you to believe that 24 people from other establishments, or that had been in 25 other establishments just prior to this disturbance, 48 1 were involved in this disturbance? 2 A Nothing that came out of my investigation 3 or the other officers that I spoke to indicated that 4 there were patrons from other establishments. The 5 disturbance that broke out through my investigation, 6 again, occurred in San Felipe's with patrons from 7 that establishment, and then spilled out onto the 8 street. 9 Q To your knowledge, either just prior to or 10 during the disturbance, at about 1:30 in the morning, 11 were there any emergency citizen telephone calls to 12 the police department? 911 calls? 13 A From that bar or location? 14 Q Right. I'm not talking about city-wide. 15 A Okay. As far as I know, there were not. 16 Q Thank you. 17 EXAMINATION 18 BY MR. MORRIS: 19 Q Officer Smith, would you be able to 20 ascertain who started the altercation? 21 A We did not receive a lot of cooperation 22 from the individuals involved. And you might get 23 more specification if you -- from testimony coming 24 later. 25 What I determined is that everybody was 49 1 saying somebody hit these people over the head with a 2 beer bottle and started the disturbance, but 3 positively identifying those individuals did not 4 happen. 5 Q Did anything lead you to believe that an 6 employee of San Felipe's started it? 7 A No. 8 MR. MORRIS: Thank you. 9 EXAMINATION 10 BY MR. COOPER: 11 Q What did the bouncer say their reason for 12 being outside was? What did they specifically tell 13 you? 14 A I did not specifically speak with the 15 bouncers after this fight. Some other officers did 16 speak with them. It was -- again, it was a very 17 hectic situation, and there were a lot of things 18 going on at once, and I never got back to speak to 19 the bouncers personally that night. 20 Q You said that some citizens had observed 21 the disorderly conduct outside of the police station 22 down there and the sanitation problems. 23 A Yes. 24 Q What made them think that these people came 25 from this bar instead of one of the others? 50 1 A That they were drinking in the bar and they 2 observed -- it's a very short distance from the front 3 door of San Felipe's to the head of the steps of the 4 substation, and these people told us that they had 5 seen customers come from San Felipe's and go down 6 into the entranceway of the substation. 7 Q Is there a one-time incident or have you 8 had repeated customers tell you that? 9 A There were several people that told us 10 that. I haven't heard -- it's an ongoing problem 11 everyday, but I haven't heard specifically from any 12 individuals lately. 13 Q Okay. Was this just a one-night incident 14 or was this over a period of time? 15 A The reports or the problem? 16 Q From the citizens. That said I personally 17 observed this occur. 18 A We received more than one comment from 19 citizens. I -- just by talking to other officers, 20 other officers were told the same thing that I was 21 told, so I know that there were -- that there were 22 definitely more than one report, and I -- I can't 23 give you a number, I don't know how many, but more 24 than one, because other officers were given the same 25 information. 51 1 Q But you personally have had more than one 2 or just one? What have you personally had? 3 A I would say me, personally, I will say one 4 for sure. Maybe more, but I'm -- I can't tell you 5 for sure more than one. So I will say one for sure. 6 Q Okay. 7 EXAMINATION 8 BY MR. SCHMITZ: 9 Q Officer Smith, did you receive any 10 statements from anybody, whether it's staff of 11 San Felipe's or patrons, that actually said that the 12 fight started in the bar or outside the bar? 13 A Everybody we talked to said the fight 14 started inside the bar. 15 Q In the bar. Okay. 16 Is it ever common that security for 17 establishments would leave the bar to go outside to 18 try to subdue a fight that didn't even start in the 19 bar? 20 A Not to my knowledge. 21 Q How -- how does this bar compare to other 22 bars in town? I mean, from your experience. Is this 23 one that you're continuously called to more as a high 24 percentage than other bars, or -- -- 25 A I would say, you know, trying to be as 52 1 honest as I can, we go to San Felipe's a lot on 2 the -- like I said, a vast array of calls. 3 The disturbances that we've had there 4 recently are more intense than anything else we're 5 dealing with in the downtown area, or the city, for 6 that matter. Definitely we're spending more time, 7 giving more attention, more manpower to San Felipe's 8 and the problems that are coming out of that bar. 9 Q Okay. In the past when doing bar checks, 10 you testified that you have seen visibly intoxicated 11 people inside San Felipe's. 12 A Yes. 13 Q To what extent were they visibly 14 intoxicated? 15 A Well, I mean it's hard. I'm not -- a vast 16 array from people that have had, you know -- haven't 17 had anything to drink yet, or have had one drink, to 18 seeing people that could barely stand up. I mean, 19 it -- I work these areas every night so I see every 20 level of intoxication. But I have seen people in 21 San Felipe's to the point of falling down. 22 Q Okay. Thank you. 23 CHAIRMAN DAVIS: Any further questions from 24 the authority? 25 Okay, Officer, thank you very much. 53 1 MS. DAVIET: May Officer Smith be released 2 so that he can leave, if necessary? 3 CHAIRMAN DAVIS: Fine with the authority. 4 Yeah. Okay. 5 Do you have additional witnesses, ma'am? 6 MS. DAVIET: Yes. 7 CHAIRMAN DAVIS: Okay. Now, just in the -- 8 to move along, I think the authority understands 9 there was a big fight, a disturbance, somebody 10 probably got punched inside the bar and the bouncers 11 somehow got it moved outside, police came, and they 12 had a big major problem outside. So try to 13 concentrate your witnesses on what's happening inside 14 the bar that's in violation of the liquor laws and 15 keep it as short as possible. 16 MS. DAVIET: Okay. Sergeant Don Whitson. 17 SERGEANT DON WHITSON, 18 having been first duly sworn, was examined and 19 testified as follows: 20 DIRECT EXAMINATION 21 BY MS. DAVIET: 22 Q Would you state your name and occupation 23 for the record, please. 24 A Yes. My name is Doug Whitson, 25 W H I T S O N. I'm a police officer for the City of 54 1 Fort Collins. 2 Q How long have you been employed in law 3 enforcement, Sergeant Whitson? 4 A I've been employed by the City of 5 Fort Collins for 11 and a half years, and I was state 6 certified four years prior to that time. 7 Q Did you have occasion on this past Saturday 8 morning, August 28th, to respond to the location or 9 vicinity of the San Felipe's Cantina in Fort Collins? 10 A Yes, I did. 11 Q What gave rise to you responding to that 12 location? 13 A I was approximately three blocks away and I 14 heard Officer Doug Smith say that he was in contact 15 with a large disturbance at Linden and Walnut, and he 16 was in a foot pursuit after one of the suspects. 17 And I drove into the area, drove my car to 18 Linden and Walnut and stopped there. 19 Q Have you been in the room this evening and 20 had an opportunity to listen to Officer Smith's 21 testimony? 22 A Yes, I have. 23 Q And are you generally in agreement or would 24 you have anything to add or disagree with, with 25 regard to his description of the crowd and 55 1 disturbance outside? 2 MR. DOW: I object to the form of the 3 question. This is just me-too testimony. 4 CHAIRMAN DAVIS: I assume that in the 5 interest of brevity, I would agree with it. And move 6 on. 7 THE WITNESS: I do agree. I did make some 8 additional observations, but I do agree that the 9 incident was very dynamic and extremely unsafe for 10 us. 11 Q (BY MS. DAVIET) You -- similar to 12 Officer Smith, I'd like to ask you about your 13 background, training and experience with regard to 14 contacting and assessing persons who are suspected of 15 consuming alcohol. Do you have training in that 16 regard? 17 A I do. 18 Q And do you have experience in that regard? 19 A I do. 20 Q Would you be able to estimate for the 21 authorities approximately how many times in the past 22 11 years you've had opportunities to contact persons 23 suspected of consuming alcohol? 24 A Thousands. 25 Q In addition to your experience as you've 56 1 described in law enforcement, do you have any other 2 type of training or experience with regard to 3 alcohol-related matters? 4 A Well, I have -- I have received all the 5 proper training that the police department provides 6 in detection of DUI drivers, which in this case, the 7 indicators for intoxication for driving under the 8 influence are the same ones that we look for 9 indicators for being intoxicated on any other type of 10 contact with them. 11 I'm also trained -- part of my duties is an 12 instructor for the mobile field force crowd-control 13 response, and I deal with intoxicated people, 14 unfortunately, on a daily basis. You get an 15 opportunity to measure people by -- by comparing 16 their legal level of intoxication to your observed 17 level of intoxication for those people. 18 Q Were you able to hear Officer Smith's 19 description of the types of characteristics that he 20 would look for in determining whether someone's 21 intoxicated? 22 A I did. 23 Q And is that something that would be 24 consistent with your training and your experience 25 also? 57 1 A Yes. 2 Q In addition to your law enforcement 3 training and experience, do you have any other type 4 of experience or background with regard to 5 alcohol-related matters. 6 A Yes, I was a bar and restaurant manager for 7 10 years prior to becoming a police officer. 8 Q In Fort Collins? 9 A Yes. 10 Q Now, moving along for now from the events 11 going on with the crowd outside of the past incident, 12 based on your training and experience with regard to 13 alcohol detection, how would you describe the 14 intoxication level of the members of the crowd there? 15 A Well, my initial contact was with 16 approximately 20 people within this crowd. The 17 purpose for my contacting them was twofold: One, I 18 was trying to determine whether or not any of the 19 active onlookers were participants in the disturbance 20 and/or if they were witnesses to the disturbance. 21 And it didn't take me very long, after 22 talking to some of the active onlookers there, that 23 they were extremely intoxicated. And I did have -- 24 at one point I looked through the crowd and there 25 were two males and a female standing at the corner of 58 1 the building just north and east of San Felipe's, 2 they had just -- they -- the two males were on either 3 side of this female and she was -- had her head 4 dangling down with her hair down around her face. 5 And they were trying to assist her in walking, and 6 they all fell. 7 And it -- initially I thought she might 8 have been another victim to this assault where 9 somebody was hit with a beer bottle. That was the 10 initial information that we had received. So I 11 walked over to them and as soon as I got there, they 12 stood up, they helped her up and she was still just 13 having her head dangle down, couldn't take care of 14 herself, couldn't walk on her own. 15 And I said, "Don't tell me you were in 16 San Felipe's," and they said, yes, they had all been 17 there. And I didn't really have an opportunity to 18 detain them at that time because there were a lot of 19 other fights occurring at that time, at least five or 20 six fights within that crowd. 21 So when you -- in answer to your question 22 did I see anybody that was intoxicated, at least 23 three of those people were so intoxicated they could 24 not walk. So the purpose for me asking whether they 25 were in the bar was not for the purposes of this 59 1 hearing, but rather to determine whether they were 2 involved in the disturbance. And I received that 3 information secondary to that. 4 Q In your duties with the Fort Collins Police 5 Department, do you have similar experiences with 6 regard to foot patrol and that sort of thing in 7 the -- in the downtown area as Officer Smith 8 described? 9 A Prior to being promoted to sergeant, I was 10 assigned to the District 1 substation, so I had many 11 of the same duties that Officer Smith described. 12 Q And how long ago was that, that you were 13 assigned to -- 14 A The entire year of 1998, and part of -- 15 right up until 1999. And I was actually assigned to 16 the police substation in District 1 from 1986 until 17 January of 1999. 18 Q And in your experiences in being assigned 19 to District 1, what experiences, other than this past 20 weekend, if any, have you had with regard to events 21 inside or involving San Felipe's? 22 A Well, most of my involvement regarding 23 San Felipe's has been -- is a supervisor coming to 24 assist other officers that were there on 25 disturbances. I've had at least six conversations 60 1 with Jay, one of the co-owners of the bar, initially 2 when they first opened. 3 When I responded, I was not actively 4 investigating the incidents that occurred there, but 5 I did share with Jay some of my concerns about issues 6 that were occurring on a more frequent basis there, 7 including large disturbances, and some serious 8 assaults. 9 I found it to be quite disturbing when, in 10 approximately late February, after I had had all 11 these conversations, I came to assist officers and I 12 noticed that not only had they not taken any of the 13 suggestions that I had given them to maintain some 14 control in the bar, but, in fact, had resorted to 15 serving alcohol to people that were standing in line 16 to get into the bar. And instead of having a line 17 filter out, several hundred people total, they 18 filtered them into their patio area, their seating 19 area, and then served six packs of beer and 20 margaritas while they were waiting in line. 21 I found that to be incredibly irresponsible 22 for several reasons, and we talked about those. 23 Q So do I understand you correctly that you 24 personally have participated in attempts at taking 25 proactive measures with regard to this establishment? 61 1 A Yes. 2 Q And what has been the success level, or 3 lack thereof, with regard to those proactive 4 measures? 5 A Well, there's been no success. 6 Q Now, going back for just a moment to the 7 disturbance of this past weekend after you arrived on 8 scene, are you aware of whether other police units 9 responded to that area after your arrival? 10 A There were several officers that arrived, I 11 don't know how many, I would estimate five or six. 12 When I was standing in the crowd, approximately five 13 minutes after I had arrived I had several dynamics 14 occurring: There was an officer that was some 15 distance away that had arrested one of the 16 participants, there were five or six fights going on, 17 there was a large hostile crowd. And I looked down 18 to the north and the east on Walnut Street and I saw 19 a single officer that didn't have a cover officer 20 with him fighting with three individuals in the 21 street. 22 And I don't know what the circumstances 23 were for him having to wrestle with them, but all of 24 the officers that were on scene at Linden and Walnut 25 were tied up with either suspects or crowd control, 62 1 and I notified police communications to send us every 2 available officer in the city to assist us with the 3 crowd. 4 Q Specifically, what does that mean with 5 regard to officers in the city of Fort Collins in 6 general, when every available officer responds to the 7 scene? Does that mean literally what it says it 8 means? 9 A Well, it means two things. First, we 10 have -- we have 24 officers and two supervisors 11 working that night, which is our minimum staffing 12 level. When 18 of those officers have to clear other 13 areas of the city to come to assist us, it creates 14 two problems. 15 First, there's no coverage within the rest 16 of the city for those other officers that were tied 17 up, and any calls that come in don't get -- don't 18 receive a police response because we're tied up for 19 an extended period of time on crowd control. 20 So not only does it expose other officers 21 in the south end of the city without additional 22 police coverage, but the citizens don't receive any 23 service from us during that time. 24 Q So that would have been true during the 25 period of time that it took to gain control at 63 1 San Felipe's, then? 2 A That's right. 3 Q Do you have knowledge as to whether -- with 4 regard to the disturbance last Saturday morning, do 5 you have knowledge as to whether anyone in 6 San Felipe's ever phoned in a complaint or report 7 about a disturbance? 8 A I asked police communications after the 9 event and they said that no one had called in. 10 Q During the time that you had contact and 11 communication with members of the crowd during and 12 after the disturbance, were you able to determine, or 13 did you find anyone, that you observed to be involved 14 having come from another establishment other than 15 San Felipe's? 16 A No. The people that I asked, I asked 17 specifically if they came from the bar, if they 18 had -- and the purpose for that was, if this occurred 19 inside the bar, I was looking for witnesses and 20 participants. So I asked specifically, "Were you in 21 the bar?" 22 "Yes." 23 "And how long were you in there?" 24 And I was trained to determine whether they 25 were in the bar at the time of the incident, and I 64 1 couldn't understand why we had so many people there 2 but we couldn't develop a witness to tell us what had 3 happened. And each one of the individuals that I 4 spoke to was either very hostile or complacent, and 5 it was frankly because they were very intoxicated. 6 Q On one final -- one final area. Have you 7 heard of something that's referred to as the 8 San Felipe's crawl? 9 A Yes, I have. 10 Q What is it -- what is your understanding as 11 to what the San Felipe's crawl is? 12 A A citizen -- as I contacted the three very 13 intoxicated individuals that evening, one of the 14 citizens standing there, as I was walking back into 15 the crowd, said to me that they were doing the 16 San Felipe's crawl, which frankly described what we 17 had been seeing for several months. 18 And for the purposes of this hearing, for 19 the board, it doesn't take us, in many cases, very 20 long to determine that they came from the bar because 21 they -- they had the distinctive straw sombrero and 22 the leis. And when you drive down late at night, 23 there are sometimes thousands of people in the Old 24 Town area but for whatever reason, because they're 25 dressed like that, they tend to stand out. And when 65 1 they talk about the San Felipe's crawl, it's 2 literally a crawl. It is not a walk, it's not a 3 stumble, it's not a hold-yourself-up-against-the-car, 4 it's a -- it's a crawl because you're so intoxicated 5 you cannot walk. And that's very common. 6 I've sent many messages to the patrol 7 division about our observations of that for purposes 8 of officer safety, and -- and we wanted to, at some 9 point, to take a proactive approach to that and let 10 people know within our department the magnitude of 11 the problem. 12 Q And other than the gentleman who initially 13 described to you the San Felipe crawl, have you heard 14 other people refer to that? Is that a term that 15 others have used or was it just that one person that 16 you heard using it? 17 A Well, he -- that was the first time that 18 I've actually heard that term, but it was very 19 appropriate given what we had seen, we just had 20 observed it. 21 Q Thank you. I believe that's all the 22 questions I have for this witness at this time. 23 CHAIRMAN DAVIS: Thank you, Mr. Dow. 24 THE CLERK: Chairman, could we take a 25 quick break? We wanted to open up the doors here and 66 1 allow people to sit down. 2 CHAIRMAN DAVIS: We'll pause just a moment. 3 (Recess taken 7:35 p.m. to 7:45 p.m.) 4 CHAIRMAN DAVIS: We're back on the record? 5 THE CLERK: Yes. 6 CHAIRMAN DAVIS: Okay, we'll resume. The 7 same members of the authority are here. 8 Mr. Dow. 9 MR. DOW: Thank you. 10 CROSS-EXAMINATION 11 BY MR. DOW: 12 Q Sergeant Whitson, is John Pino also your 13 supervisor? 14 A No. 15 Q Now, it's true, is it not, that in the 16 night in question, you were not inside San Felipe's 17 any time prior to the incident? 18 A That's true. 19 Q And you were not in San Felipe's at any 20 time subsequent to the incident that night? 21 A That's true. 22 Q So you have no direct personal knowledge or 23 observations of your own as to what occurred inside; 24 isn't that true? 25 A That is true. 67 1 Q And is it also true that on any time you 2 had prior contacts with San Felipe's, that you never 3 did issue any citations for any liquor code 4 violations to them? 5 A I did not. 6 Q And had you had violations, you certainly 7 would have done that, wouldn't you? 8 A Not necessarily. 9 Q With respect to the service on the patio 10 you testified about, the lines, isn't it true that 11 the liquor license that San Felipe's had, and has, 12 allows service on the patio within that fenced area? 13 A Yes. 14 Q And isn't it also true that after you told 15 the management of San Felipe's that the activities 16 that you described relative to the waiting line 17 was -- were a bad idea, that they stopped doing that? 18 A They did stop, yes. 19 Q When was that? When was that that you 20 told them about that problem and they stopped? 21 A My guess is the end of February of this 22 year. 23 Q So that would have been within the first 24 month after they opened? 25 A Give or take. 68 1 Q Now, you prepared a report on this incident 2 shortly after it occurred? 3 A Yes. 4 Q Have you had a chance to review that report 5 in connection with your preparation for this 6 testimony? 7 A Yes. 8 Q When did you prepare your report? 9 A Approximately 5:00 a.m. on Saturday, the 10 29th. 11 Q Do you recall in your report that when you 12 arrived at the scene, you stated that you saw two 13 San Felipe's employees who were detaining another 14 subject who appeared to be uncooperative and that the 15 San Felipe's employees had that subject under 16 control? 17 A Yes. 18 Q And you then, according to your report, 19 directed your attention to a Mr. Allerez, correct? 20 A Yes. 21 Q And Mr. Allerez is the individual that you 22 subsequently arrested and cited, as you testified 23 previously. 24 A That's right. 25 Q What did you cite him for? 69 1 A Disorderly conduct, assault and resisting 2 arrest. 3 Q And did you determine that Mr. Allerez was 4 the individual that hit the other patron with the 5 beer bottle? 6 A I did not determine that, no. 7 Q Do you know if that's the case? 8 A I don't. 9 Q Mr. Al -- did you determine that 10 Mr. Allerez was also with the group of individuals 11 that had come over from Greeley for that night? 12 A Yes. 13 Q And he was? 14 A That's what he told me, but I don't know. 15 I can't testify that that was for sure the case. 16 Q Okay. Do you recall having a discussion 17 with the manager at San Felipe's, Jay Gonzalez, in 18 the spring of this year relative to activities there? 19 A I had many conversations with him. 20 Q Do you recall in the spring of this year, 21 telling Mr. Gonzalez, "This isn't Mexico. We don't 22 do it like they do it down there"? 23 A Absolutely not. 24 Q Have you ever made any statements to any 25 person that FCPD was going to get or shut down 70 1 San Felipe's? 2 A No. 3 Q So if someone else testified that you 4 stated that, they would be incorrect? 5 A Well, I can clarify that. What I told 6 Mr. Gonzalez was that it was -- there were two 7 approaches that the police department can take in 8 trying to deal with the magnitude of these problems 9 and the frequency of the problems. 10 The first one was to continue to react to 11 these and document those cases and bring them before 12 the liquor board with our hopes that they would be 13 themselves proactive and start taking a position that 14 they were going to minimize the number of problems 15 that we had at the bar. 16 The second approach is that we then become 17 more active and proactive and, I told him 18 specifically, that it was my belief that one of the 19 strategies that we have used in the past that I 20 wanted to avoid was to start assigning police 21 officers specific to the Old Town area, plain 22 clothes, surveillance, and document all of the 23 problems. That we didn't have to testify, then, to 24 later, but would actually be documented on the -- 25 Q And so you've been doing that since the 71 1 spring of 1999? 2 A No, we have not. 3 Q Are you aware of a meeting that occurred 4 with Officer Richard Johnson, who's in the liquor 5 enforcement unit, in the spring of '99, involving the 6 managers and the owner of San Felipe's? 7 A No. 8 Q Are you aware of a letter that was sent to 9 Mr. -- to Officer Johnson in March of 1999 spelling 10 out these specific steps that management was going to 11 take to address problems that were indicated by you 12 and other officers? 13 A No, I'm not aware of this. 14 Q You're not aware of that. 15 Nothing further. 16 CHAIRMAN DAVIS: Thank you. 17 MS. DAVIET: Nothing further. 18 CHAIRMAN DAVIS: Any questions from the 19 authority of this officer? 20 EXAMINATION 21 BY MR. OLDHAM: 22 Q Sergeant Whitson, to the best of your 23 knowledge, were all the people that you personally 24 contacted that night, other than police officers, 25 people that were customers of or associated with 72 1 San Felipe's? 2 A Yes. 3 Q Of those people that you contacted, how 4 many would you say in your opinion were visibly 5 intoxicated? 6 A All of them. 7 Q Including the bouncers? 8 A Excluding the bouncers. I do not believe 9 that they were intoxicated, or I didn't get an 10 indication that they were. 11 MR. OLDHAM: That's all. 12 CHAIRMAN DAVIS: Additional questions from 13 the authority? 14 Okay. Thank you. No other -- this officer 15 can be excused also? 16 MS. DAVIET: Yeah. Mr. Davis, I just 17 wanted to let you know that with regard to each 18 witness, I would just ask that they be excused when 19 they're finished, as some of them may need to leave. 20 CHAIRMAN DAVIS: No problem. Okay. Fine. 21 Your next witness. 22 MS. DAVIET: Justin Houstoun. 23 CHAIRMAN DAVIS: How many witnesses do you 24 anticipate calling tonight? 25 MS. DAVIET: Maybe four more after this 73 1 one, but none of them are going to be even half as 2 long as the first two. 3 CHAIRMAN DAVIS: Thank you. How many do 4 you have, Mr. Dow? 5 MR. DOW: Mr. Chairman, I plan to call 6 approximately a half dozen witnesses, but I 7 anticipate that each one will have fairly brief 8 testimony. 9 CHAIRMAN DAVIS: Okay. Thank you. 10 JUSTIN HOUSTOUN, 11 having been first duly sworn, was examined and 12 testified as follows: 13 DIRECT EXAMINATION 14 BY MS. DAVIET: 15 Q Would you state your name and spell your 16 last name for the record, please. 17 A Justin Houstoun. H O U S T O U N. 18 Q Are you currently a resident of the city of 19 Fort Collins? 20 A Yes. 21 Q Have you -- do you have, or have you in the 22 past, had some type of a relationship with 23 San Felipe's Cantina? 24 A Yes, I have. 25 Q And what was that relationship? 74 1 A I was employed there when they opened. 2 Q And from what -- during what period of time 3 were you employed there? 4 A I was employed from the day they opened 5 until April 1st. 6 Q April 1st of this year? 7 A Of -- yes. 8 Q And what was your reason for leaving the 9 employment there? 10 A I took time off from employment, I was 11 attending the Fire Academy and could not get to work 12 at that time. 13 Q Have you completed fire academy training at 14 this time? 15 A Yes, I have. 16 Q Are you working somewhere else at this 17 time? 18 A Yes, I am. 19 Q Where are you working now? 20 A I'm currently working at Tailgate Tommy's 21 in Old Town. 22 Q And would you describe for anyone who may 23 not know, what Tailgate Tommy's is and where it is? 24 A Tailgate Tommy's is just -- it's a bar and 25 grill down off of Mountain, down by the parking 75 1 garage, and I bartend there. 2 Q Would it be fair to describe Tailgate 3 Tommy's as a competitor, if you will, of San Felipe's 4 Cantina? 5 A I would say yes. I mean, any bar I would 6 consider a competitor. 7 Q And has anyone, on behalf of or in 8 management of Tailgate Tommy's, encouraged or 9 discouraged or influenced you in any way with regard 10 to your testimony here this evening? 11 A No. 12 Q Now, you mentioned that you began working 13 for San Felipe's from the time they opened. That 14 would be in January of this year -- 15 A Yes. 16 Q -- is that right. 17 What was your position or your job with 18 San Felipe's? 19 A I was a doorman. 20 Q And what duties did you have as a doorman? 21 A Basically, I would -- I would go in around 22 5:00 in the evening, I would work the dinner crowd, 23 like be a host, take names, seat people at tables. 24 Around 9:00, 9:30, when it started to turn into more 25 of the bar atmosphere, we would take the tables out, 76 1 open up the floor, check IDs at the door. If the 2 line needed to be started, would start the line, 3 monitor it. Break up any disturbances inside. Just 4 basically keep an eye on the place. 5 Q Now, with regard to the line you mentioned, 6 are you -- are you referring to the line of people 7 waiting to get in? 8 A Yes. 9 Q Have you been in the room and been able to 10 listen to the testimony of the previous witnesses 11 regarding the line and the service of alcohol in 12 line? 13 A Yes, I have. 14 Q And do you have any observations that would 15 differ from or be additional to what you've already 16 heard in the testimony here? 17 A No. Both their testimonies were fairly 18 accurate -- pretty accurate. 19 Q Were you also able to hear the portions of 20 testimony referring to the size of the crowd 21 generally within San Felipe's? 22 A Yes. 23 Q How would you describe during your time of 24 employment there, the size of the crowd inside the 25 establishment? 77 1 A It was always packed. I mean, it was 2 always full. 3 Q Now, you indicated a few minutes ago that 4 you finished your training at the -- at the fire 5 academy. Did that training include any type of 6 training with regard to awareness and enforcement, 7 that sort of thing, regarding fire occupancy? 8 A Somewhat, yes. 9 Q And based on the training that you have 10 had, would you describe for the authority, as best 11 you can, the level of occupancy in your experience at 12 San Felipe's? Would you consider it not crowded, 13 crowded, overcrowded? 14 A I would say it would go between crowded to 15 overcrowded. There were some nights that it was 16 crowded. It would depend on the nights, some nights 17 it was overcrowded, you could barely walk through the 18 place. Other nights it was just standard crowd. I 19 didn't -- it was full. 20 Q Were there ever occasions when the size of 21 the crowd caused you any concern? 22 A Yes. There were times to -- if there was 23 an altercation in the back of the bar and we had to 24 go from the front door into the back, it was very 25 difficult to get through the crowd and make your way 78 1 back there to stop it. 2 Q And based on your fire academy training, 3 what would be your opinion with regard to that size 4 crowd in circumstances where a fire may break out? 5 Would people be able to get out of the building? 6 A It would be difficult. 7 Q You mentioned having difficulty getting to 8 the back of the bar if there was an altercation 9 towards the back of the bar. Is that something that 10 was common in your experience at San Felipe's that 11 there would be altercations in the establishment? 12 A During my period there, I only witnessed 13 two altercations, actually, inside the bar that we 14 had to break up in the bar. The rest of them were 15 outside. 16 Q So do I take that to mean that there were 17 others outside that you did witness, but they only -- 18 A Yes. 19 Q During your time of employment with 20 San Felipe's, how would you describe the levels of 21 alcohol consumption of the patrons, based on your 22 observations? 23 A Based on my observations, people got very 24 intoxicated. 25 Q And would you describe a little more what 79 1 you would indicate to be very intoxicated? 2 A There were several occasions when the bar 3 would close down, we would do last call, and 4 everybody would be filtering out, people that -- like 5 the officers stated, could not walk, would be passed 6 out in the bushes in Old Town Square, on the benches. 7 People that were sleeping in planters. 8 Q During your time of employment with 9 San Felipe's, did you ever observe, or did you ever 10 become aware, of any employee of San Felipe's cutting 11 anyone off and refusing to serve them? 12 A Not that I witnessed. I know on some 13 occasions that there were people that we were asked 14 to escort out of the bar because they were too 15 intoxicated and the bartenders did not want to serve 16 them anymore. 17 Q So as opposed to cutting someone off, they 18 would be escorted out once they became too 19 intoxicated? 20 A Yes. 21 Q In your experience with San Felipe's, was 22 there any type of policy or any instruction or 23 direction that you had as an employee with regard to 24 calling cabs for patrons who might be intoxicated? 25 A We were told that if people were 80 1 intoxicated, could not drive home, if they 2 specifically ask for us to call a cab, then we could 3 call the cab company for them and have them come pick 4 them up. 5 Q But you only called the cab if someone 6 requested that? 7 A Yes. 8 Q Are you aware, of your observation or 9 during your employment with San Felipe's, are you 10 aware of any types of activities with regard to 11 dancing on the bar? 12 A Yes. People dance on the bar every night. 13 Q And would you describe what occurs when 14 that happens? What gives rise to it and then what 15 happens from there on? 16 A Basically, just -- I mean, when it turns 17 into the bar atmosphere, you got the loud music, 18 everybody drinking, people get -- people just start 19 hopping up on the bar, start dancing. Been in there 20 several occasions where people have started to take 21 off clothing and just dance all over the bar. 22 Q Have you seen -- have you, yourself, seen 23 people either nude or partially nude dancing on the 24 bar? 25 A Partially. 81 1 Q And what do you mean by partially? 2 A Like people that -- like women that would 3 get up on the bar, take off shirts, take off bras. 4 Q Was there any incentive provided for that 5 by the bar? Any prizes, tokens, incentives? 6 A I believe they get a T-shirt or, like, a 7 shot or something. 8 Q So a woman who would dance without her 9 shirt on got a T-shirt or a shot or something, is 10 that what you're saying? 11 A (Witness nodded head.) 12 Q Are you aware of any incidents with regard 13 to sexual behavior in the bathrooms at San Felipe's? 14 A In the -- can you repeat that? Sorry. 15 Q Are you aware of any incidents with regard 16 to sexual behavior in the bathrooms at San Felipe's? 17 A I have only witnessed one occasion, when I 18 was employed there, where someone came and grabbed me 19 while I was working to inform me that there were a 20 male and female in the men's restroom having sex like 21 on top of the sink. I walked back there, saw them in 22 there, told them that this was inappropriate and they 23 had to leave. They went their own way. They both 24 left. 25 Q And are you aware of whether something 82 1 similar to that has occurred on any other occasions? 2 A I've heard rumors from people that they've 3 seen it, but that's the only occasion that I've ever 4 personally seen. 5 Q Are you familiar with a term or an event at 6 San Felipe's referred to as blow-job birthdays? 7 A I haven't heard it technically referred to 8 as that, but if it's your birthday, like they will 9 bring you -- you're brought up onto the bar, the 10 bartender will make you a blow-job shot, and they 11 hold it between their legs, and the person taking the 12 shot gets down on their knees with their hands behind 13 them and takes the shot from between their legs. 14 Q And is there generally just one person 15 involved with that activity or two people or how 16 many -- 17 A Normally someone from behind the bar that 18 gets the shot and then whoever's birthday it is gets 19 up on the bar table. 20 Q I'm not understanding you completely. 21 A It's the birthday person doing the shot 22 from one of the bartenders. 23 Q So there are two people involved -- 24 A So there's two people on the bar. 25 Q One with the shot between their legs and 83 1 the other one drinking the shot; is that what you're 2 saying? 3 A Correct. 4 Q And is this something that you, yourself, 5 observed during your time at San Felipe's? 6 A Yes. 7 Q How many times did you observe something 8 like that? 9 A I'd say almost nightly. I mean, people 10 frequently came into the bar to celebrate birthdays 11 there. I mean, very frequently. 12 Q Were -- was it your impression that people 13 were coming into the bar to celebrate their birthday 14 because this event was taking place? 15 A I don't know, to be honest with you. 16 Q What effect on the attitude or demeanor of 17 the patrons and the crowd at San Felipe's, did it 18 have when these birthday events took place? How did 19 that affect the crowd? 20 A The crowd would -- I mean, the crowd -- the 21 crowd enjoyed it. I mean, they would announce 22 whoever's birthday it was when they got up there. 23 All eyes were on the person doing the shot. I mean, 24 everybody would cheer and applaud and . . . 25 Q How would it affect the frequency or rate 84 1 at which people were ordering drinks, whether for the 2 birthday people or others? 3 A To be honest, I'm not sure about that. 4 Q Did you -- were you able to hear the 5 testimony of the previous witnesses regarding fights 6 involving San Felipe's staff, whether they were 7 attempting to subdue them or whatever? Were you able 8 to hear those portions of the testimony? 9 A Yes. 10 Q What has been your observation, if 11 anything, with regard to fights in, or involving, 12 San Felipe's staff? 13 A Basically, when the fight would break out, 14 whether -- if it would break out inside, policy was 15 for the door staff to go to the fight, break it up, 16 take people in their own opposite direction, like, 17 take one person out the back, one person out front to 18 avoid further conflict between the two, and escort 19 them outside, talk to them, find out what happened. 20 And then the majority of the time, ask them to go 21 their own way and tell them that they're not welcome 22 back for that evening. 23 Q Is that a policy that was undertaken in 24 lieu of contacting the police? 25 A I suppose. 85 1 Q Did you ever observe any occasions 2 regarding fights that involved San Felipe's staff 3 where the staff's participation was not in the nature 4 of breaking it up and calming it down? 5 A The only instance I can think of would be 6 the fight that the officer described, most likely in 7 February, to where the fight had occurred where it 8 was occurred outside of San Felipe's. And the people 9 that the fight was between had been escorted out of 10 the bar. And probably about four or five staff 11 members, we were escorting them out through Old Town 12 Square, telling them not to come back. 13 They really didn't want to leave. They 14 kept, like, taunting the security staff, bad-mouthing 15 all of us, really refused to leave. There was a huge 16 line of people out front. We felt that it was unsafe 17 for them to be around, so we wanted to make sure that 18 they were a safe distance away before we went back to 19 the bar. 20 One of the staff members got pissed off at 21 one of the guys that was talking back to him and 22 pretty much started a fight with him. 23 Q And what -- to what level did that fight 24 that he started rise? 25 A He hit the guy, the guy started hitting him 86 1 back, his friend started hitting other bouncers. 2 That's when we tried to tackle them to the ground. 3 We put them down on the ground and were holding them 4 there, not letting them get up, that's when the 5 officers arrived. 6 Some of the friends of these people were 7 trying to pull us off of their friends that we were 8 holding down onto the ground, and didn't want to quit 9 fighting. And that was pretty much the extent of it. 10 Once the officers got there, they took it into their 11 own hands. 12 Q So with regard to the one San Felipe's 13 employee that you just referred to as hitting the 14 other guy, would it be a fair characterization to say 15 that he escalated the matter by doing that? 16 A Yes. 17 Q I believe that's all the questions I have 18 at this time. 19 CHAIRMAN DAVIS: Thank you. Mr. Dow. 20 CROSS-EXAMINATION 21 BY MR. DOW: 22 Q Isn't it true that regarding that 23 particular fight, that the individual involved that 24 escalated it, was fired? 25 A Yes. 87 1 Q Isn't it also true that you, yourself, 2 participated in the birthday shots about which you 3 were testifying? 4 A Participated, how so? 5 Q Did you participate in the -- in that? 6 A I never got on the bar and gave a shot to 7 anybody. 8 Q Did you ever receive one? 9 A Did I ever receive one? No. 10 Q Do you know what the occupancy of this 11 facility is? 12 A I believe it was around 134 to 144, 13 something right in there. 14 Q And who contacted you with regard to your 15 testimony tonight? 16 A Officer Johnson. 17 Q Did you -- he contacted you, you didn't 18 contact them and volunteer? 19 A No. 20 Q And you testified you were employed when 21 San Felipe's opened, and you left in April; isn't 22 that correct? 23 A April 1st. 24 Q And they opened in February, correct? 25 A January. 88 1 Q So you were there -- you were there 2 approximately two months before you left? 3 A Approximately three. 4 Q Okay. And that you don't know anything 5 about any subsequent -- after April 1, you don't know 6 anything about any subsequent training or steps that 7 have been taken by the owners and manager to improve 8 the management at San Felipe's, do you? 9 A No. 10 Q So all these incidents you testified about 11 that you observed would have occurred during the 12 first approximately two months that the restaurant 13 was open? 14 A Yes. 15 Q Nothing further. 16 CHAIRMAN DAVIS: Okay. Any questions from 17 the authority of this witness? 18 EXAMINATION 19 BY MR. COOPER: 20 Q Can you tell us, when you said crowd -- 21 overcrowded, what are you talking about? I guess 22 that's kind of a nebulous term. When you say the 23 place was crowded or it's overcrowded, what -- what's 24 the difference? So I have an understanding. 25 I mean, are we talking crowded means 89 1 they're at maximum capacity? 2 A Yes. 3 Q So when they're crowded, they're about 144 4 give or take? 5 A Correct. 6 Q And overcrowded, what does that take, 7 another 10, 20, 30 people? 8 A In excess of 200. 9 Q Over 200 people are in the bar when it's 10 overcrowded? How often would you say you have seen 11 that occur? 12 A I'd seen it occur twice while I was working 13 there. 14 Q Okay. What kind of staff-client ratio did 15 they have, do you know? How many employees for that 16 number of customers? 17 A Like all together with servers and 18 bartenders? 19 Q That would be on duty. 20 A About 15. 21 Q 15? And that would be for a crowd of 200? 22 A (Witness nodded head.) 23 Q Do you know what the policy -- or what was 24 the policy on calling the police? When you were 25 there, what did they tell you? 90 1 A That, basically, the police were to be 2 called if it was a very dangerous situation. Like, 3 if it was just a fight between like two friends, and 4 we could break it up, take them their own ways and 5 they left, fine, not a problem. 6 But like when it would turn into the 7 altercations that eventually led outside of the bar, 8 stuff that was escalating, that couldn't really be 9 controlled by the staff, that the police were to be 10 called. 11 Q Whose responsibility was it to make that 12 call? 13 A The bartenders. I mean, somebody that -- 14 probably one of the bartenders that was behind the 15 bar by the phone. 16 Q Okay. What was their stated policy on the 17 nude conduct within the business? 18 A I mean, people didn't get like naked. I 19 mean, I don't know of any policy. I just -- people 20 would do it. 21 Q Do you know if it was ever brought to the 22 management's attention that it was occurring? Were 23 they present during any of that? 24 A I do not know. 25 Q Was there a manager on the premises at the 91 1 time this occurred? 2 A Yeah, I -- there's always a manager there. 3 Q And so the manager would have been aware of 4 what was going on? 5 A Correct. 6 Q Okay. Thank you. 7 EXAMINATION 8 BY MR. SCHMITZ: 9 Q Mr. Houston, you indicated part of your 10 duties was to start a line, or form a line -- 11 A Right. 12 Q -- at your front door. Was that for 13 crowd-control purposes? 14 A Right. 15 Q Okay. If that is your duty, how does the 16 bar become overcrowded? I mean, to the point where 17 people can't walk? 18 A Because while I was working there, before 19 really keeping count, we would -- basically would 20 start the line, we would hold the line until one of 21 the owners or managers that was there, he would tell 22 us, you know, like send in 5, send in 10 people, we 23 would just have them in the line and then give us a 24 number of people send in per time. 25 Q So management dictates to the person at the 92 1 front door about letting people in, is that -- that 2 person at the front door is not monitoring how many 3 people are in the bar? 4 A At the time I was working there. 5 Q Okay. You also indicated that you've 6 witnessed people pass out outside on benches at the 7 time of closing. When that happens, would anybody 8 from the bar go out to assist them or call the police 9 department, or once you're out of the bar, is it -- 10 you know -- 11 A Pretty much once the bar closed, the door 12 staff -- when everybody was filing out, it was our 13 responsibility, we would go outside to the front 14 entrance and kind of just monitor the crowd, make 15 sure things -- that people just cleared out of there, 16 like, timely and without any kind of rise in the 17 crowd or anything like that. 18 People that were passed out there, on a few 19 occasions I walked up, asked them if they were okay. 20 They were -- if they had friends who were with them, 21 the friends said they were okay, and they would pick 22 them up and carry them to a car, take them home. 23 Q So you never left them there unconscious 24 or -- 25 A No. 93 1 Q When a female gets up on the bar and dances 2 topless and the dance is over, what happens to this 3 person, is she permitted to stay in the bar or are 4 they asked to leave? 5 A From what I've seen, they stay. 6 Q Okay. Thank you. 7 EXAMINATION 8 BY MR. OLDHAM: 9 Q Mr. Houstoun, did you say you were on staff 10 from the opening of the establishment? 11 A Yes. 12 Q Who gave you training? 13 A Mike, Jay. 14 Q That's the person's name, Mike Jay? 15 A No, Mike and Jay are two of the owners. 16 Q Okay. What kind of training did you 17 receive? 18 A We basically -- I mean, we got -- 19 Q I'm talking about you. I don't care about 20 "we." 21 A I'm sorry. Received a pamphlet, like a 22 pretty thick book on all the different, like, rules 23 and policies. An officer from the police department 24 came in, maybe, like, two weeks after it opened, sat 25 down with all of us, went through looking for fake 94 1 IDs, talked about overserving -- 2 Q What were you told about overserving? 3 A They had talked to us about signs of -- 4 Q The police did or Mike and Jay? 5 A The police did. 6 Q All right. 7 A Had discussed with us, you know, the signs 8 to look for and people to see if they're 9 overintoxicated. Like what signs to look for, to cut 10 them off when they've had too much alcohol. 11 Basically just how -- how to handle the situations, 12 like, how to go about cutting somebody off, how -- 13 dealing with them, getting them out of the 14 establishment, along those lines. 15 Q During the time that you were employed 16 there, are you aware of anybody being refused service 17 because they were too intoxicated? 18 A Yes. There were a few times when I was 19 working the door, people would come up that had 20 obviously been at other bars that were extremely 21 intoxicated, that wanted to enter the bar and we 22 turned them away, told them, "Come back another night 23 when you're sober and you can come in," but we 24 couldn't serve them because they could get in trouble 25 by the police if they were let in and kept drinking. 95 1 Q Are you aware of any people being turned 2 down from the -- that were already in the bar? 3 A I never witnessed any person. 4 Q Did you ever hear of that happening? 5 A Yes. 6 Q That the wait staff or the bartender -- 7 A Yes, cut them off. 8 Q -- would cut them off. 9 Okay. What were you instructed to do if a 10 disturbance broke out in the bar? 11 A We were instructed to get between the 12 disturbance, separate the parties involved, take them 13 in separate directions, outside the bar, so they 14 wouldn't be around each other and the fight wouldn't 15 continue. 16 Like try to talk to them, calm them down. 17 Kind of just agree with them, take their sides, so 18 they wouldn't continue to be agitated. And then 19 pretty much send them on their way. 20 Q And it was -- under what circumstances were 21 you to call the police? 22 A If it was an out-of-control circumstance, 23 like to where there was a danger or threat or a 24 situation that was escalating that couldn't really be 25 controlled. 96 1 Q Who would make that call, then, that it was 2 a danger or threat that was escalating? 3 A It was basically the call of whoever was 4 involved. If they felt like it was getting out of 5 control, they would have someone go and call the 6 police. 7 Q Did that ever happen? 8 A Yes. 9 Q And that's the February incident? 10 A Yes. 11 Q That's the only time? 12 A There was -- there was one other time 13 inside the bar where one of the customers tried to 14 start a fight with one of the owners. He tried to 15 hit him. We took him down to the ground, tried 16 talking to him. He was very uncooperative and was 17 trying to fight for quite a long time; wanted to 18 fight. 19 So we just had someone go and call the 20 police and they came and took care of it. 21 Q So if I understand correctly, the two 22 episodes in which a dangerous situation existed, that 23 you know of, when you worked there, were two episodes 24 involving danger or threats to management or 25 employees? 97 1 A Yes. 2 Q Okay. Thank you. 3 EXAMINATION 4 BY MR. MORRIS: 5 Q Mr. Houstoun, those birthday shots, where 6 between the legs do they hold the glass? 7 A Like -- 8 Q Ankles, knees? 9 A Like right up in here. 10 Q Okay. Thank you. 11 CHAIRMAN DAVIS: Additional questions from 12 the authority. 13 Thank you very much. Next witness. 14 MS. DAVIET: This should be a brief one. 15 CHAIRMAN DAVIS: Thank you. 16 MS. DAVIET: Phil Porter. 17 OFFICER PHILLIP PORTER, 18 having been first duly sworn, was examined and 19 testified as follows: 20 DIRECT EXAMINATION 21 BY MS. DAVIET: 22 Q Would you please state your name and 23 occupation for the record. 24 A My name is Phillip Porter. I'm a patrol 25 officer for Fort Collins. 98 1 Q And as a patrol officer, do you have a 2 specific assignment, or up until the last couple of 3 days, did you have a specific assignment within the 4 city? 5 A I worked in what is called District 1, 6 which is the area that's from Laurel and College, 7 north and east, including the Old Town Plaza area. 8 Q And this includes San Felipe's Cantina? 9 A Yes, it does, all of that area downtown. 10 I -- when I am not on assigned calls or whatever, one 11 of my priorities, if you will, or extra duty, if you 12 will, is to spend time in the Old Town Plaza area. 13 Q And in doing so, have you become familiar 14 to any degree with San Felipe's? 15 A Yes. 16 Q And how would you describe your familiarity 17 and your observations with regard to the 18 establishment? 19 A I've been assigned the area for a couple 20 years and consequently I watched San Felipe's be 21 built. And then have been somewhat involved with 22 San Felipe's just by being in the area so much, since 23 the -- since the outset of that. I worked 12:30 to 24 so -- or noon 30 to 10:30 at night, primarily, so 25 I -- you know, I'm there at that time and I converse 99 1 with them regularly. And they're also right next -- 2 they're right where my office is as well. 3 Q Were you in the room and able to hear the 4 testimony of Mr. Houstoun, who was up prior to you to 5 testify? 6 A I just heard part of it. I was standing in 7 the back of the room. I could hear the gist of it. 8 Q Were you able to hear the portion of his 9 testimony referring to the birthday events that took 10 place? 11 A I didn't hear a specific that I referred 12 to, but I heard him describing most of what he was 13 describing about the birthday activity, yes. 14 Q Is this something that you have gained any 15 familiarity with in patrolling near San Felipe's? 16 A I hadn't until Monday of this week. 17 Q And -- 18 A Monday night of this week. 19 Q What occurred on Monday? 20 A I was just finishing my shift and was 21 walking across the plaza, and I heard the disk jockey 22 in San Felipe's calling for a young man to come to 23 this bar, to get up on the bar. So I just kind of 24 hesitated to see what was going on there. And I 25 heard him say to the crowd, or to the people -- there 100 1 wasn't a large crowd -- to say to them it's his 2 birthday, so we'll help him celebrate, or whatever. 3 So I watched him. This could be 4 interesting. And so I just watched him from outside, 5 watched him get up on the stage. I call it a stage, 6 it's a bar. Up on the bar. 7 And going on with that, I then heard the 8 disk jockey ask for -- and I can't remember her name, 9 he called for a female to come to the bar. She 10 stepped up on the bar, and in her hand she's holding 11 a drink and it appeared to me to be like a margarita, 12 it's a stemmed drink. 13 And she had that in her hands. They then 14 instructed the young man, and he is following the 15 instruction of the disk jockey, and he's suggested 16 that -- he asked the young man to kneel down on his 17 knees, which he did. He then -- I watched the young 18 lady then place herself in front of him, place that 19 drink -- she was leaning back, she was kind of on her 20 feet, but leaning back against her hand. She had the 21 drink in her lap, or in her crotch area, or whatever 22 and he was instructed to retrieve the cherry and to 23 drink the drink from her lap without his -- use of 24 his hands. He was instructed a couple times not to 25 use his hands. 101 1 I watched it -- I saw this start. I 2 started to walk away and then when this continued, I 3 circled back and watched this thing kind of come to 4 be. And I thought to myself, at that point, this is 5 unusual. I had never seen this before. I was taken 6 back by the instruction that was coming from the disk 7 jockey for the -- and they were following his 8 instruction to perform this. 9 So I walked away. I said, this is 10 inappropriate. At that point, I did not know whether 11 there was violation there, but I felt like it was 12 very inappropriate. I checked the following day to 13 see with the authorities -- with our liquor board 14 authorities to see whether, indeed, such as this 15 was -- was inappropriate. And I still feel it was 16 inappropriate. 17 Q What time of day was this when -- 18 A About 11:00. I generally got off at 10:30, 19 it was slightly after that. I'd had some other 20 activities just on the plaza on the other end and I 21 had just finished those and was walking back to my 22 car. 23 Q So p.m. -- 24 A P.m., uhm-hum. 25 Q And the man was on the bar during this 102 1 entire time; is that right? 2 A Yeah, he had -- both were up on the bar. 3 Two of them. Young man, obviously 21 years old, and 4 a female, looked to me to be about the same age. I 5 don't really know exactly how old she was. 6 Q Now, why do you say obviously 21 years old? 7 A Because they said it was his birthday, and 8 it was his 21st birthday. 9 Q The female you said that the disk jockey 10 called to the female to come up, was it your 11 impression that this was a female out of the crowd or 12 an employee or who? 13 A Impression only was that it was an 14 employee, but I do not have anything to verify that. 15 I have nothing to say that but just the familiarity, 16 I guess, of the way he was calling to her to come to 17 the stage -- I -- I mean to come to the bar. Led me 18 to belief at that point that she was employed. I 19 have nothing to -- 20 Q What type of reactions did you observe from 21 the patrons inside the bar as this was going on? 22 A I didn't notice a great deal of cheering or 23 whatever, I heard some encouragement, but the 24 encouragement I heard the most and I was 25 concentrating most on was that from the DJ. I was 103 1 listening to what the person on the microphone was 2 saying and watching what was going on on the stage. 3 There was some -- there was some interest 4 in every -- everyone was interested in what was going 5 on, especially the group that he appeared to have 6 come out of, but I don't remember, you know, a great 7 outpouring of one way or another. 8 Q And what exactly was your vantage point? 9 Were you inside, outside? Where were you in relation 10 to where this was taking place? 11 A I was standing just outside the front door, 12 back several feet. I was walking across so I was 13 looking through the front door, and then I might have 14 looked at one point, there was -- there's windows up 15 on both sides and the window that would be, when I'm 16 facing it, to the left, but mostly looking -- the 17 primary thing would be down the bar, rather than 18 across the bar. I'm looking down the bar with the 19 young man's back to me. 20 Q And you mentioned a couple of times the 21 encouragement that the DJ was providing for this. 22 What kind of encouragement? What words, if you 23 will -- 24 A The thing that stuck in my mind the most 25 was his reference to "get the cherry." The 104 1 location -- and then -- and that was the biggest 2 thing that I concentrated on as far as he was 3 saying -- I'm saying, wait a minute, here, this is -- 4 my thought process on this is where is he going with 5 this? And then he encourages him to drink it. 6 He then said, "You cannot use your hands. 7 You must -- you know, with just your mouth, you take 8 it from off of her," or whatever. I can't be 9 specific about that. 10 Q And during the entire time that this was 11 going on, the drink remained in her crotch area. 12 Would that be correct? 13 A Yes. 14 Q I believe that's all the questions I have 15 at this time. 16 CHAIRMAN DAVIS: Thank you. 17 Mr. Dow. 18 CROSS-EXAMINATION 19 BY MR DOW: 20 Q Officer Porter, it's true, is it not, that 21 this activity you just described is not a violation 22 of the liquor code? 23 A Is that a question? 24 Q Yes. It's not a violation? 25 A When I read the -- when I went back and 105 1 read it, and I read under the code of regulation, I 2 believe, it's the way it's stated or whatever, it 3 says that acts -- activities that -- and I can't 4 quote it to you, but as I best understand it, 5 activities that depict sexual acts are against code. 6 When I walked away that night, I felt this 7 was a depiction of -- this was a -- an offensive 8 depiction, in my mind, of a sexual act. If -- and 9 if, indeed, that's true, then it's a violation. If 10 that is not now, then it's not. 11 Q But wasn't your testimony that you 12 concluded subsequently that it was apparently not a 13 violation? 14 A I didn't say that. I don't believe I did. 15 Q And subsequent to your observing this 16 particular incident, did you tell management of 17 San Felipe's about this? 18 A No, I was finishing my shift and went home. 19 Q And subsequent to that, you didn't say 20 anything to them, and you haven't since; is that 21 correct? 22 A I spoke with my liquor enforcement people 23 first, and in the work with San Felipe's that's been 24 conducted through them. 25 Q And you didn't speak with anyone at 106 1 San Felipe's about this? 2 A No. 3 Q You didn't ask them to stop? 4 A No, I did not. 5 Q And in the two years that you've been on 6 the Old Town beat and observing activities at 7 San Felipe's, you have never issued a citation to 8 them; isn't that correct? 9 A To them? No. 10 Q No other questions. 11 CHAIRMAN DAVIS: Redirect? 12 REDIRECT EXAMINATION 13 BY MS. DAVIET: 14 Q San Felipe's has not been open during that 15 entire two-year period, has it? 16 A No. 17 Q Thank you. 18 CHAIRMAN DAVIS: Any questions for this 19 witness from the authority? 20 Seeing none, thank you. 21 MS. DAVIET: Getting close. 22 Tom DeMint. 23 TOM DeMINT, 24 having been first duly sworn, was examined and 25 testified as follows: 107 1 DIRECT EXAMINATION 2 BY MS. DAVIET: 3 Q Would you state your name and occupation 4 for the record, please. 5 A My name is Tom DeMint, D E, capital 6 M I N T. And I'm assistant fire marshall with the 7 Poudre Fire Authority. 8 Q And in your employment as assistant fire 9 marshall, would it be part of your duties to 10 inspect or be aware of the fire code issues or 11 situations with regard to San Felipe's Cantina? 12 A I would say be aware of. I have inspectors 13 that are assigned to me that I supervise that do the 14 routine bar checks, and do those inspections there. 15 And the routine fire inspections are done by engine 16 companies. 17 Q And in your supervisory role over these 18 inspectors, are you, in fact, aware of any fire 19 issues, compliance, noncompliance, with regard to 20 San Felipe's? 21 A I was called in by one of my inspectors, 22 Doug Lee, one time back in April on an overcrowding 23 complaint that came through the police department, 24 and that's the only time I've been there during a 25 crowded night. 108 1 Q And are you aware of any information with 2 regard to the occupancy limit of San Felipe's? 3 A Yeah. In fact, I just double-checked with 4 one of my inspectors and he informed me that the 5 occupant load, which we went through quite a bit of 6 stuff, because when the occupant load was initially 7 issued, it was issued as this room would be as a room 8 with tables and chairs. The building department 9 issues those occupant loads. We do not issue them, 10 we just maintain and enforce them. 11 Then after some discussion between 12 San Felipe's and the building department, the 13 occupant load was increased to what I believe was 14 125. I don't know what it's posted right now, but 15 according to my inspectors, it's posted at 125. And 16 that's hard for to us keep track of, because we 17 inspect every bar in town. 18 That's why the fire code and building code 19 says you go put a sign on the wall, so when the 20 inspector goes in, they can look at that wall and 21 evaluate the crowd with that sign. 22 Q With regard to the time that San Felipe's 23 has been in business between January of this year and 24 now, are you aware of any concerns or issues on the 25 part of the fire department with San Felipe's and 109 1 their occupancy or any other code situation? 2 A Yeah. Our inspectors keep a log of all 3 bars that they go to and activity as far as the crowd 4 goes, and then they record in the log what the crowd 5 was like at that time they went. They don't go every 6 night. Oftentimes they are responding to calls. And 7 when they're not on a call, you know, on a Friday or 8 Saturday night, they'll stop in. 9 And perusing this, it appears that six or 10 seven times since they've been open, there's been 11 some action taken by our inspectors as far as no 12 more -- no more people in, you have to let 15 or 20 13 out. In fact, the night I went, that was our 14 instructions. We instructed them to -- I believe it 15 was 20 people. See, you got to let 20 people out 16 before you let anybody else in. 17 And we kind of feel it's a proactive stand 18 on our part, working with that business owner, rather 19 than to go in and issue a summons. I mean, a summons 20 could be issued when they're over by 20 real easy, 21 but we try to take the proactive stand with the bar 22 owners in that realm. And if they continue to be a 23 problem, then we'll take further action. But like I 24 say, six or seven times we've asked them to bleed 25 those people off, get the crowd down to a manageable 110 1 level to conform with the occupant load. 2 Q So those six or seven times where you've 3 asked them to bleed people off, does that mean that 4 at least that many people who were bled off, so to 5 speak, were in excess of the occupancy limit inside? 6 A Yes, ma'am. 7 Q What is the -- let me ask you first how 8 long you've been employed in the area of fire 9 investigation or fire issues -- 10 A Code enforcement. 11 Q Yeah. 12 A I've been in code enforcement for seven 13 years. 14 Q And during that time and prior to your 15 commencement of that career, have you had specialized 16 training of any kind in code enforcement, code 17 issues, and -- 18 A Very much so. 19 Q Could you briefly describe what that 20 training consists of? 21 A I -- boy, numerous classes from the 22 National Fire Code Institute, I'm a member of the 23 International Conference of Building Officials, I sit 24 on the National Fire Protection Association Code 25 Committee, all these entail a lot of code education. 111 1 Q And based on your training, education, 2 experience, do you have a -- an understanding, 3 yourself, of the reason for imposition of occupancy 4 limits by the code? 5 A Oh, yeah, definitely. 6 Q And what is that reason? 7 A The best example was -- I think it was last 8 spring or last winter, the fire in Sweden that killed 9 160, 180 people from an overcrowded bar. Happy Land 10 Club in New York. There's been numerous, numerous 11 times when a fire breaks out in a bar that's 12 overcrowded, it's not just one or two people that 13 die, it's -- it's multitudes and that's why we are 14 very in tune in enforcing it. 15 In addition to that, other instances people 16 may be familiar with, is the Who concert in 17 Cincinnati. I can't remember which concert it was in 18 Salt Lake City that had nothing to do with fire, had 19 everything to do with crowds crushing them, where 20 when a crowd reaches a certain capacity, people lose 21 their ability to control themselves in that crowd and 22 ultimately they can be crushed or injured, just from 23 the crowd, itself. 24 So that's why we watch it, is for the 25 safety of those people who are in there having a good 112 1 time. 2 Q And based on your training and education, 3 would you have an opinion as to where the safety 4 level is defined? In other words, is the occupancy 5 limit imposed to define that safety level? 6 A Yeah, it's defined and that kind of goes 7 back to the changes they made with the building 8 department, as we sit in here with loose chairs and 9 tables there's an occupant-load factor, you take the 10 square feet of the usable space and you divide by a 11 factor of 15. I take that square feet and divide by 12 a factor of 125 and account for bars and immovable 13 objects and stuff, and then you add in -- there's 14 factors for exiting, the width of the exiting, which 15 way the exit swings, and you come up with that 16 number. 17 What they petitioned the building 18 department was, "Well, we want to take the tables 19 out." And when they took the tables out, that 20 ultimately becomes, quote, unquote, a dance floor, 21 and the dance floor factor's seven. So the factor is 22 actually more than twice as much -- twice as much 23 people in that area. 24 So that was done through the building 25 department and we were given that, and that's -- the 113 1 building department has the ultimate say. They're 2 the ones that do the calculations for the occupant 3 load. So they give us the occupant load and we 4 enforce it. 5 Q So based on your current knowledge of the 6 occupant load or occupant limits at San Felipe's, 7 would you describe a crowd of 200 inside that 8 establishment as being in excess of or in compliance 9 with the occupancy limit? 10 A That is in excess of. 11 Q Would an occupancy load of 200 within that 12 establishment be a safe situation, in your opinion? 13 A No, ma'am. 14 Q Thank you. That's all the questions I 15 have. 16 CHAIRMAN DAVIS: Mr. Dow. 17 CROSS-EXAMINATION 18 BY MR. DOW: 19 Q Is it true that you met with personnel from 20 the San Felipe's to discuss fire code and occupancy 21 issues? 22 A I did before they opened and I did also the 23 night that we got called out. 24 Q And members of your staff also have done 25 so; isn't that right? 114 1 A Sure. And that's why we take proaction. I 2 was talking about where they try to work with that 3 bar owner to keep them away from that 200 that we 4 were talking about. 5 Q Isn't it fair to state that you and your -- 6 your people have had a good relationship with the 7 San Felipe's and management, and that they've been 8 cooperative in your efforts relative to these issues? 9 A I've had no signs of any uncooperative 10 actions at all. 11 Q Okay. And isn't it also true that your 12 staff inspects other bars for occupancy of the fire 13 code violations? 14 A Yes, sir, that's why it's hard for me to 15 come up with the occupant load of any given bar at 16 any time. 17 Q And relative to those other inspections, 18 it's true, is it not, that on occasion there are 19 overcrowding situations in other similar 20 establishments where your people ask them to bleed 21 out part of the crowd to thin it out? 22 A Sure. 23 Q That occurs, doesn't it? 24 A Sure. And right now, just because of the 25 way the culture is in Fort Collins, San Felipe's has 115 1 been the most popular and they've had the most active 2 there. 3 Q There have been no other fire code 4 violations of any type other than the one 5 overcrowding incident complaint you had in April of 6 1999? 7 A That was the -- I was associated with, sir. 8 There have been others that they -- that the 9 inspectors have logged where they have asked them to 10 bleed people off. 11 As far as specific fire code violations, as 12 far as a company inspection program, I didn't pull 13 that file, so I don't know on that. 14 Q Okay. And as far as you know, this 15 particular premise meets the other fire code 16 requirements, including the number of exits and 17 things of that nature? 18 A For the occupant load given, yes. 19 Q Nothing further. 20 CHAIRMAN DAVIS: Any questions from the 21 board? 22 EXAMINATION 23 BY MR. COOPER: 24 Q On the inspections of the bar, itself, do 25 you have any idea how many inspections have actually 116 1 occurred at the place, regardless of whether they've 2 been in compliance or not? 3 A Of recorded ones -- I mean, sometimes the 4 guys will stop in and they won't log it because they 5 get a call, or just they don't do what I tell them 6 to. They won't get it logged. But I would guess 7 twice a week since they've been open. 8 Q Okay. Thank you. 9 CHAIRMAN DAVIS: Other questions from the 10 authority? 11 EXAMINATION 12 BY MR. OLDHAM: 13 Q When you said the night you were called 14 out, were you referring to the night of the 28th? 15 A No, this was April 16th, I believe it was. 16 Q Oh. 17 A That's been back here. 18 Q When is the last inspection that was done 19 that was recorded, or logged, prior to the 28th of 20 August of this year? 21 A It was the 28th. 22 Q What was the notation there? 23 A They said they had a line out front and 24 that they -- everything was okay. 25 Q Okay. 117 1 A And they didn't record the time, so I don't 2 know what time that was. 3 Q And prior to the 28th, when was the next 4 recorded episode? 5 A The 7th. And I have to correct myself, 6 that was the 8th of August. Bad writing. 7 Q The 8th of August as opposed to the 28th of 8 August? 9 A Right. It would be the 8th of August. 10 Q Right. 11 A And the time before that was the 7th and 12 they were one in and one out, when they make a 13 notation. And sometimes the bar will assume that on 14 their own, sometimes we have them assume that, so, 15 "Okay, you're right there, you're at capacity. One 16 person comes out, one person goes in." 17 Q When was the last time you, or anyone that 18 you're aware of with your inspection staff, has had 19 discussion with overcrowding situations with the 20 management or staff of San Felipe's? 21 A The last time I personally did was on the 22 16th of April. As far as the inspectors, anything I 23 would say would be an assumption. 24 Q Thank you. 25 CHAIRMAN DAVIS: Further questions. 118 1 Seeing none, thank you. 2 MS. DAVIET: Last but not least, Rich 3 Johnson. 4 OFFICER RICH JOHNSON, 5 having been first duly sworn, was examined and 6 testified as follows: 7 DIRECT EXAMINATION 8 BY MS. DAVIET: 9 Q Would you state your name and occupation 10 for the record, please. 11 A My name is Richard Johnson, and I'm a 12 police officer, city of Fort Collins. I'm assigned 13 to the liquor enforcement unit as a liquor 14 enforcement officer. 15 Q And how long have you been assigned to the 16 unit as a liquor officer? 17 A Just a little over a year. 18 Q When San Felipe's opened in -- in January, 19 then you were on your current assignment as a liquor 20 officer; is that right? 21 A Yes. 22 Q When -- what, if any communications, have 23 you had with the management -- owners or management, 24 of San Felipe's since their opening in January 25 concerning compliance with liquor laws and 119 1 regulations? 2 A Okay. The first contact that I personally 3 had was around March 19th, and that was with Jay 4 Gonzalez, one of the owners. And it was a meeting 5 outlining some issues -- I believe I had a phone 6 conversation with him earlier, reference to some 7 information I was getting from District 1 officers. 8 To clarify a little bit, the working 9 relationship with my unit and me as a liquor officer 10 in the District 1, District 1's more of an autonomous 11 problem-solving district and they take ownership in 12 the issues in their district, including some of the 13 liquor issues. So, sometimes I am given the 14 information or request. They handle their own issues 15 for the most part. 16 The first time I received some concerns was 17 about some of the intoxication levels at the bar. 18 And I have spoken with Jay Gonzalez, and we actually 19 met at the department to discuss some of those 20 issues. 21 Q And this would have been in March, I think 22 you said -- 23 A March 19th. 24 Q -- I believe is the day. 25 A And Jay brought with him a list of concerns 120 1 and some of the steps that he was looking at 2 implementing to address some of these concerns. And 3 one of the -- some -- the concerns that we talked 4 about were overservice to patrons, dealing with 5 unruly patrons, disturbances that are occurring 6 within and outside of the establishment. 7 And he brought up the issue of the 8 under-age service and the use of fake identification 9 as areas of concern, and these were areas that we had 10 spoken of, and he gave some steps that he was 11 planning on implementing to address those. 12 I felt like -- you know, I let Jay know 13 that I wanted to work with San Felipe's. We had 14 found through experience that the working 15 relationship with the license holders, and helping 16 them with problems, long-term, usually results in 17 better compliance and fewer problems. 18 And I encouraged that at that time, that we 19 wanted to work with them in dealing with the issues 20 that we identified. 21 Q Had there been other occasions since that 22 time where you talked with or met with Mr. Gonzalez, 23 or anyone else on behalf of San Felipe's? 24 A Yes. On April 14th, I was contacted by 25 Sergeant Pino, who's the sergeant in charge of 121 1 District 1 at the time. And he expressed some 2 concerns about some of the issues of overconsumption, 3 unruly patrons continuing. And he said that Jay had 4 set up a meeting at the District 1 office, he wanted 5 to know if I wanted to come. 6 So on April 14th, Sergeant Pino, myself, 7 Jay Gonzalez, and one of the owners, too, Gino 8 Campano, met there to discuss the problems. 9 Q When you say "problems," what specifically 10 were you referring to? 11 A The concerns of overconsumption. We're 12 still getting the complaints on very intoxicated 13 patrons in Old Town, and they're easily identifiable 14 by the trinkets that San Felipe's gives away, either 15 the leis or hats or beads. And that's part of their 16 concept. 17 The complaints were continuing. Receiving 18 complaints from different business owners that were 19 finding vomit on their doorsteps, all those things 20 related to patrons leaving their -- the establishment 21 overintoxicated. 22 Q So these problems that you were referring 23 to, are these the same or different problems than 24 those that were concerning your department at the 25 time of the March 19th meeting? 122 1 A They were the same issues. 2 So we met and spoke about the issues of 3 overconsumption. We talked about how we could 4 monitor that. 5 One of the primary drinks is margaritas, 6 and limiting the numbers and being able to monitor 7 how many numbers people are getting. We talked about 8 implementing wristbands or different types of glasses 9 so we can identify where the alcohol's coming from. 10 So if -- say, one color glass can only be filled with 11 one bartender's area. 12 Trying to brainstorm ways that we could 13 limit the number of -- the amount of alcohol consumed 14 and better monitor. Mr. Campano, based on his 15 experience with his own business, was offering 16 suggestions. He was talking about how they monitor 17 overconsumption by monitoring how much alcohol they 18 use compared to the number of beverages served. 19 Making sure that their employees aren't overpouring, 20 when they're mixing their drinks. 21 So it was really: How can we address this 22 issue? So there were a lot of strategies that we 23 talked about in an attempt to help them. One of the 24 things we identified was their concept put them at 25 risk, that the regulation would inhibit the party 123 1 atmosphere that they try to implement and is very 2 popular. So there -- I sensed some hesitancy from 3 Jay to implement monitoring-type programs in our 4 discussions. 5 Q So following your April 14th meeting or 6 discussion, what, if any, steps were taken to try and 7 address these continuing problems? I understand what 8 you said you discussed, but was anything actually 9 implemented -- 10 A I'm not aware of anything being implemented 11 at that time. I spoke to Jay, like, last week, I 12 believe. I wanted to touch base with him before -- 13 before the college students got back to talk to him 14 about what they were planning, how things were going, 15 talked about how they were monitoring the 16 consumption. 17 And he says they're limiting people to two 18 margaritas. And I asked him how they were doing 19 that. He said that their bartenders were keeping on 20 top of it and able to manage that, like monitoring 21 who's coming up for drinks. 22 So based on that, I don't see that any of 23 the things we talked about had just been implemented 24 as of now. I'm not sure if anything had been tried. 25 Q How long after the time that San Felipe's 124 1 opened its doors, how long after that was it that you 2 first became aware that the police department had 3 concerns? 4 A I can't give you an exact date, but it 5 wasn't too long after they opened that -- that these 6 issues began to arise. And I -- through further 7 investigation this week, I realized there was more of 8 a problem than I was aware of. And that is a problem 9 with communication within our department. The 10 District 1 people handled a lot of their own issues. 11 I tell the guys who have them to refer their reports 12 to me when there's liquor issues involved. And what 13 I found out is our records department was not 14 forwarding me the reports. The officers were asking 15 that that be done. 16 So this week I've realized that the issues 17 were -- are -- were more long-term and larger than 18 what I had previously believed. And those issues 19 stemmed from -- 20 Q Have you been in the room and been able to 21 listen to the testimony of the witnesses that came up 22 prior to you? 23 A Yes. 24 Q Have you heard some of the testimony in 25 response to Mr. Dow's questions regarding the fact 125 1 that summonses or citations for certain instances 2 along the way have not been issued? Have you heard 3 those portions of testimony? 4 A Yes, I have. 5 Q Would you be able to explain for the 6 authority how this establishment that's been open 7 eight months, give or take, has had these continuing 8 problems at this level and there would be no -- no 9 summons or citations issued? 10 A Well, I -- it's a couple things. One, 11 District 1 tends to be somewhat autonomous in how 12 they deal with issues. And when it comes to 13 liquor-related issues, I think there's some belief 14 that I'm going to be the one to take care of that. 15 Some of these issues were forwarded in their reports, 16 which I never received. And -- 17 Q And that was a records error, is that -- 18 A That was a records error. I went to them 19 this week and said, "How come I'm not getting these 20 reports?" Because it is a grave concern, because 21 there's issues that should have been dealt with more 22 promptly than what have. But I can't deal with 23 things that I'm not aware of. 24 I think we've rectified that situation and 25 that problem. Officers have referred things to me 126 1 for follow-up and I had not received them. 2 Q Were you present at the initial licensing 3 hearing for San Felipe's when they applied for a 4 liquor license? 5 A I don't remember if I was there for sure or 6 not. 7 Q That eliminates the rest of my questions. 8 Thanks. 9 That's all the questions I have for this 10 witness at this time. 11 CHAIRMAN DAVIS: Okay. Thank you. 12 Mr. Dow. 13 CROSS-EXAMINATION 14 BY MR. DOW: 15 Q Officer Johnson, do you recall meeting 16 with two of the owner-managers, Mike Smuck and Jay 17 Gonzalez, on approximately March 19, 1999, over at 18 FCPD offices? 19 A March 19th? 20 Q Approximately March 19th. 21 A I remember having a meeting on -- I had 22 down April 26th, it was Mike Smuck, Jay Gonzalez, and 23 Dave Zimmer and myself. Is that the one you're 24 referring -- 25 Q And do you recall that I was also present 127 1 at that meeting? 2 A Yes. 3 Q Do you recall that subsequently, Jay 4 Gonzalez, the manager of San Felipe's, sent you a 5 letter as follow-up to that meeting indicating what 6 the immediate steps management was going to take in 7 order to address some of the problems and concerns 8 that you had indicated should be addressed? 9 A Yes. 10 Q You received that letter? 11 A Yes, I did. 12 Q Do you have a copy in front of you? 13 A I do. 14 MR. DOW: If I could approach, I'm sure I 15 could -- 16 CHAIRMAN DAVIS: Sure you can. 17 MR. DOW: Not sure I can jump over, 18 especially this late at night, if ever. 19 Is your procedure to have these marked -- 20 CHAIRMAN DAVIS: Yes. 21 MR. DOW: -- or just to admit them? 22 While that's being marked, I just -- I 23 have copies. Thanks. 24 Q (BY MR. DOW) Handing you what's been 25 marked as Exhibit A. Is that a copy of the letter 128 1 dated March 19th, which was sent to you as a 2 follow-up to that meeting signed by Jay Gonzalez, as 3 general manager, San Felipe's? 4 A I received this letter March 19th. This 5 was long prior to our meeting. 6 Q Okay. And you received another letter, 7 that's before you here, May 20th, also from 8 Mr. Gonzalez? 9 A Yes. 10 MS. DAVIET: Excuse me, sir, do you have 11 copies for me? 12 MR. DOW: B. 13 Q (BY MR. DOW) And am handing you what's 14 been marked as Exhibit B. Is that a copy of a letter 15 that Mr. Gonzalez also sent to you addressing these 16 items on behalf of San Felipe's? 17 A Yes. 18 MR. DOW: Move admission of Exhibits A and 19 B. 20 CHAIRMAN DAVIS: Okay. We'll accept these. 21 Q (BY MR. DOW) Isn't it true, Mr. Johnson, 22 that the San Felipe's management has been cooperative 23 with you when you contacted them? 24 A In speaking with them, they've been 25 cordial, and in the meetings they've been 129 1 cooperative. 2 Q And you have no personal knowledge 3 whatsoever of the incident which gave rise to this 4 hearing; is that correct? You weren't there? 5 A I was not there. 6 Q Thank you. Nothing further. 7 CHAIRMAN DAVIS: Any questions from the 8 authority of this witness. 9 Seeing none, thank you. 10 Is that all your witnesses? 11 MS. DAVIET: Yes. 12 CHAIRMAN DAVIS: Okay. Want to take five 13 minutes? We're going to take like about a 10-minute 14 recess break and then hear Mr. Dow's side. 15 (Recess taken 9:00 p.m. to 9:08 p.m.) 16 CHAIRMAN DAVIS: Okay. I'll call the 17 meeting back to order. The same authorities members 18 are still present. 19 Mr. Dow. 20 MR. DOW: Thank you. First witness we will 21 call is Ryan Ferrin. 22 RYAN FERRIN, 23 having been first duly sworn, was examined and 24 testified as follows: 25 130 1 DIRECT EXAMINATION 2 BY MR. DOW: 3 Q State your name and spell your last name, 4 please. 5 A Ryan Ferrin. F E R R I N. 6 Q Are you a resident of Fort Collins? 7 A Yes. 8 Q And how long have you been employed by 9 San Felipe's? 10 A Since it opened. 11 Q Since February -- 12 A Yes. 13 Q What's your current position? 14 A Door host. 15 Q And what other positions have you held? 16 A Just that. 17 Q Are you also a student at CSU? 18 A Yes. 19 Q You have friends from CSU that frequent 20 San Felipe's? 21 A Many. 22 Q Have you ever heard of the San Felipe's 23 crawl from any of your friends or students up at CSU? 24 A Never. 25 Q Is tonight the first night you heard that 131 1 term? 2 A Yes. 3 Q How many nights a week do you normally 4 work -- 5 A Three or four. Three or four. 6 Q -- at San Felipe's? 7 A Three or four. 8 Q Were you working at San Felipe's the night 9 in question of the incident, last Friday night? 10 A Yes. 11 Q Would you just briefly describe where you 12 were when the fight first broke out. 13 A As soon as the manager on duty called -- I 14 was at the front door, as soon as the manager on duty 15 calls last call, no one else comes in. And basically 16 I watch for people to make sure they're not leaving 17 with bottles, anything such like that. 18 Q Were you inside or outside of -- 19 A I was in the doorway, like, literally half 20 in and half out. 21 Q All right. What happened at the time the 22 fight first broke out? 23 A I looked over and saw a bottle -- someone 24 swing a bottle and hit a person and they went down. 25 And I grabbed the other doorman that I was with and 132 1 we proceeded into the bar to make sure -- to break up 2 whatever fight was happening. 3 Q So you actually saw one strike the other 4 with a bottle? 5 A Right. 6 Q Were there any punches thrown? 7 A Not that I was aware of. 8 Q How far away were you from where this was 9 occurring? 10 A No more than 5 feet, 7. 11 Q So this was the -- at the front part of the 12 premises? 13 A That's correct. 14 Q And did you recognize the individuals 15 involved in the altercation? 16 A Yes, I had ID'd approximately seven to nine 17 Hispanic males, probably half -- 45, a half hour 18 earlier. 19 Q That would have been approximately 12:30 to 20 12:45? 21 A Closer to 1:00. 22 Q That they came into the bar? 23 A Yes. 24 Q And you checked them when they came in? 25 A Yes. 133 1 Q Did they check out okay as far as IDs and 2 their current condition? 3 A Yes. 4 Q And those are the same individuals that 5 were involved in the fight? 6 A Yes. 7 Q Who was the other individual involved, the 8 recipients of the bottle? 9 A Just another patron. I had recognized him, 10 you know, just from being there, but I wasn't an 11 acquaintance or anything. 12 Q Do you know of your own observation what 13 precipitated that altercation? 14 A I don't. 15 Q Okay. Briefly describe what you did, then, 16 once this bottle swinging incident occurred. 17 A I helped the gentleman up off the floor. 18 He was bleeding pretty bad from his face. I sat him 19 down in a chair, which was right there. And I turned 20 around and I noticed the Hispanic males, all of them, 21 run out of the door. 22 And I called to the doorman who was at the 23 door, Rick, I said, "Those are the guys. Grab those 24 guys. They were the ones involved." 25 Q So you and Rick tried to grab and restrain 134 1 the two involved? And for what purpose were you 2 trying to so restrain them? 3 A Well, I was assuming that the person that 4 got hit with the bottle would like to press charges 5 on whoever did that to him, and that -- so we wanted 6 to get the police as soon as possible and have this 7 person detained. 8 Q And, briefly, then, tell the board what 9 happened next. 10 A I followed Rick and the manager on duty, 11 Said, outside of the bar. And we asked the group to 12 stop repeatedly. They turned around saying, you 13 know, obscenities. 14 And then I noticed that one of the 15 individuals had a broken bottleneck still in his 16 hand. That's when Rick saw him and he asked him, he 17 said, "Please stop, please stop." He wouldn't, so 18 Rick grabbed his wrist, which was holding the broken 19 bottle. 20 And after that it just -- all of his 21 friends got extremely upset, extremely aggressive 22 towards myself and Rick and Said and that's when Rick 23 asked me to call the cops. 24 I immediately -- we were -- by this time, 25 we were at the corner of Walnut and Linden, and I ran 135 1 down to the substation of the police. I knew it was 2 closed but the officers have talked to me before and 3 said, possibly someone will be in there. So if 4 there's really a problem, to go down there and knock 5 on the door. 6 I knocked on the door repeatedly. Then I 7 came back up the stairs. 8 Q No one responded? 9 A No one responded. I came back up the 10 stairs. One of the bouncers was at the front door, 11 asked him to call the cops. Then I proceeded in to 12 the intersection of Walnut and Linden where 13 everything was taking place. 14 Q Were you then involved in physically trying 15 to subdue and restrain or hold down the participants 16 in this fight? 17 A What had happened is Rick had successfully 18 taken down the person with the bottle, all -- and 19 then the bartender, Ray, he was out there with me, 20 and his friends that were -- the guy who was on the 21 ground, his buddies were advancing on Rick. It 22 looked like they were, you know, about to -- they 23 were screaming, "Get off him. Get off him. 24 We're going to sue you." 25 And so Ray and I took it upon ourselves to 136 1 make sure Rick didn't get blindsided by another one 2 of these guys. 3 Q Were you maced? 4 A Yes. 5 Q By Officer Smith in the initial time. 6 A Yes, the officer I remember, the first 7 officer on the scene, yes. 8 Q And then after that occurred, what did you 9 do? 10 A Basically, we stood there and tried to hold 11 these guys back from -- we were -- I was mainly 12 concerned for the safety of Rick because he had the 13 guy on the ground, he wasn't looking up or anything. 14 Ray and I were both concerned because we were 15 outnumbered, completely outnumbered, and waited for 16 the -- more units to arrive. And I wouldn't say it 17 was -- probably a minute, two minutes after that 18 before three or four of the units pulled up to the 19 scene. 20 Q As this was all occurring, did some crowd 21 develop to observe these activities? 22 A Yes. A majority of the crowd was in the 23 square. There was -- I don't recall anyone being on 24 the street because the cops came -- when they pulled 25 up to the corner -- or to the intersection everyone 137 1 just kind of stood back and was just standing there, 2 but there was well over 300 people standing in that 3 square. 4 Q And what's the capacity of San Felipe's? 5 A 125. 6 Q So were there others from other bars in Old 7 Town, as far as you know? 8 A Definitely. 9 Q What type of training have you received 10 over the last few months from San Felipe's management 11 in terms of bar management and those types of 12 activities? 13 A I would say roughly over about 10 hours 14 with our head security, Rick. He's, you know, showed 15 us, you know, the whole fake ID, we've gone over that 16 with the police officers. Then, you know, how to 17 tell a person who's visibly intoxicated, how to 18 approach them, how to make -- you know, talk to that 19 person without making a scene, so nothing gets out of 20 control. 21 Q Have you ever observed any nudity on the 22 bar? 23 A No, no full nudity. 24 Q Have you ever observed any sexual 25 activities in the bar? 138 1 A No. 2 Q No other questions. 3 CROSS-EXAMINATION 4 BY MS. DAVIET: 5 Q In response to Mr. Dow's questions a couple 6 of seconds ago, have you ever observed any nudity in 7 the bar, your response, as I heard it, was no full 8 nudity. Is that correct? Is that what you said? 9 A Correct. 10 Q So partial nudity? 11 A One instance happened last week. The girl 12 took her shirt off onto the -- on the bar. I walked 13 right up to her and asked her to come down. I took 14 her to the side and told her there was zero tolerance 15 for nudity in the bar and if she did it again, I 16 would ask her to leave. 17 Q What type of formal law enforcement 18 training do you have? 19 A None. 20 Q What type of formal training do you have in 21 the area of crowd control? 22 A None. 23 Q Do you still work at San Felipe's? 24 A Yes. 25 Q Do you like your job? 139 1 A Very much. 2 Q Would you like to keep it? 3 A Yes. 4 Q That's all the questions I have. 5 CHAIRMAN DAVIS: Any questions from the 6 authority on this witness? 7 EXAMINATION 8 BY MR. COOPER: 9 Q In addition to the one incident you said 10 you personally saw, have you ever heard about nudity 11 in the business at all -- 12 A No. 13 Q -- from any of the other people? 14 A No. 15 Q Did you know the other gentleman that 16 testified here that said was seen in the business? 17 A Yes. 18 Q Have you ever talked to him about it? 19 A No. 20 Q How many people were in the bar that 21 night, would you say? 22 A I would say less than 125, because we 23 called last call and I was observing people leaving 24 the bar. 25 Q Before the last call, how many people were 140 1 in there? 2 A 125. 3 Q There were exactly 125 people -- 4 A I had the -- I had the counter in my hand 5 and there was no line. 6 Q Why didn't you go back into the business to 7 call the police? Why run to a business you knew was 8 closed, when you knew the bar was open, you knew your 9 policy was to call? 10 A One of the officers that had come and 11 talked to us as -- you know, response -- or told us, 12 you know, we might as well give it a shot, maybe 13 someone had stopped by to pick something up, you 14 know. I was -- my adrenaline was flowing, we were 15 outnumbered, I didn't know what to do. We needed the 16 cops as soon as possible. 17 I went down on the chance that maybe an 18 officer would be down there because there were two 19 cop cars parked out in front, but it didn't -- you 20 know, I'm sure they're out on foot or whatever. 21 Q Okay. 22 CHAIRMAN DAVIS: No questions from the 23 authority? 24 MR. MORRIS: I've got one more. 25 141 1 EXAMINATION 2 BY MR. MORRIS: 3 Q One of the letters that we got, it's 4 stated that -- it's the one dated March 19th, 1999. 5 I'm sorry, you don't have a copy, but it says that we 6 have instituted with the door staff that once outside 7 the building any altercations are a matter for the 8 police to handle. 9 Why, if that is your policy -- is that 10 still your policy? 11 A Yes. 12 Q Why did you pursue the people out the door, 13 then? 14 A Because we wanted to find out who was the 15 exact person that hit the other individual with the 16 bottle, and hold him responsible for doing that 17 action. 18 Q Okay. Thank you. 19 CHAIRMAN DAVIS: Additional questions? 20 EXAMINATION 21 BY MR. OLDHAM: 22 Q Who was responsible for identifying the 23 victim? 24 A We had two bartenders -- we also had 25 bouncers in the back that did not follow the crowd to 142 1 the street, and so when I sat the gentleman in the 2 chair, more security personnel came over and I assume 3 took care of them. I followed the other guys 4 outside. 5 Q I'm not understanding what you just said. 6 A There were -- 7 Q Who identified the victim? 8 A I identified -- well, from the blood on his 9 face, I identified him. 10 Q What's the victim's name? 11 A Jeremy. 12 Q That's it? 13 A That's all I know, from the police reports 14 that I was handed today. 15 Q Well, no. Don't you know by talking to him 16 what his name is? 17 A No, I did not speak with him. 18 Q But how were you going to help the police 19 by not identifying the victim? 20 A I had other security with him. 21 Q Did they identify him? 22 A I would assume so. 23 Q You don't know? 24 A I don't know. 25 Q Thank you. 143 1 EXAMINATION 2 BY MR. COOPER: 3 Q You said you violated policy, your 4 agency's policy, by going out there; is that correct? 5 A No. 6 Q You didn't violate it? 7 A I -- 8 Q So this is not policy, then, that you can't 9 go outside and make an arrest. 10 A I was never told that I could not go 11 outside. 12 Q So there is no policy that covers that. 13 A Not that I'm aware of. 14 Q Were you never told by management that you 15 should stay inside and deal with problems, that you 16 shouldn't go out and deal with them? 17 A No. 18 Q Okay. 19 EXAMINATION 20 BY MR. SCHMITZ: 21 Q I may have missed it, but who ultimately 22 called the police? You tried knocking -- 23 A Right. I asked one of the bouncers at the 24 door -- I'm not sure. I also saw a woman on a 25 cellular phone and asked her if she would call. 144 1 Q So you really don't know if anybody from -- 2 an employee -- 3 A Right. 4 Q -- of San Felipe's called police? 5 A Right. I don't know. 6 Q Okay. 7 CHAIRMAN DAVIS: Additional questions. 8 Seeing none, thank you. 9 Next witness. 10 MR. DOW: Mike Mockler. 11 MIKE MOCKLER, 12 having been first duly sworn, was examined and 13 testified as follows: 14 DIRECT EXAMINATION 15 BY MR. DOW: 16 Q Please state your name and spell your last 17 name for the record. 18 A Michael Mockler, M O C K L E R. 19 Q You're a resident of Fort Collins, 20 Colorado? 21 A Yes. 22 Q Were you in Old Town on the night in 23 question, last Friday night? 24 A Yes. 25 Q And where were you that evening between 145 1 12:00 and 1:30? 2 A At 1:45, I left Elliot's bar. 3 Q That's down the street, the next block? 4 A Down the street, yeah. 5 Q And would you briefly tell the board -- 6 describe what you observed as you left Elliot's and 7 coming towards San Felipe's about 1:45 on the evening 8 in question. 9 A Yes. I left Elliot's. It was last call 10 there. Lights came on, and I was walking south 11 towards Walnut Street. I passed Linden Street. 12 There was an officer standing there talking to the 13 manager. I greeted the manager, I know her. And I 14 crossed Walnut Street and saw a group of men exiting 15 San Felipe's. 16 They were whooping it up and yelling. And 17 my thought was, these guys are really having a good 18 time. And this group passed me. And then I noticed 19 two San Felipe's people come out and yelling at these 20 guys to stop. And I moved off to the side. 21 The two bouncers merged with this group, 22 this group of seven or eight people and restrained 23 one of them. I didn't know why or anything. I was 24 just watching this and they tried to restrain him 25 with the -- what I gather was the thought of holding 146 1 this person until the police came. Something had 2 happened. 3 I noticed the bouncer go downstairs to the 4 substation and try to get help from there, to no 5 avail. Subsequently, the officer I observed in front 6 of Linden's was on foot. He came running up the 7 street -- in the middle of the street of Linden's 8 Street, saw what was going on, took out his pepper 9 spray and started generally spraying the crowd on the 10 further side of the street from me. 11 This caused quite a deal of hustle, you 12 know, people trying to get away from the officer's 13 pepper spray. 14 And the next thing I know, I saw the 15 officer chasing someone down Linden Street on foot. 16 And so he's gone now. And this is still going on in 17 the middle of the street. 18 The San Felipe's people are basically 19 holding on to several of these people. And there's 20 pushing and shoving going on. I didn't notice 21 anybody throwing any punches or anything, but the 22 San Felipe's people were in earnest trying to hold on 23 to these men. And their friends were trying to pull 24 them away from each other. 25 And then after a couple minutes later, the 147 1 patrol cars arrived. And as that -- as the patrol 2 cars arrived, the officers took control of the people 3 that the San Felipe's staff had held, handcuffed 4 them, and it basically quieted down right from there. 5 The people were restrained by the police, 6 and basically it broke up from there. 7 Q Did you observe other people coming out, 8 other patrons, coming out of the bars and -- 9 A Well, I had noticed -- I had been to three, 10 four bars in the area that evening. I was taking 11 photos for my newspaper that evening, so I was in 12 several other establishments, and yes, I saw a lot of 13 other people that were in other bars milling around 14 this whole thing. 15 MR. DOW: No other questions. 16 CHAIRMAN DAVIS: Thank you. Cross. 17 CROSS-EXAMINATION 18 BY MS. DAVIET: 19 Q So, Mr. Mockler, how many hours had you 20 spent in bars prior to making the observations you 21 just described? 22 A Well, like I said, I was out shooting 23 photos and I'd been to the Aggie and, I guess, the 24 Crown Pub, and gone down to Elliot's. 25 Q How many hours? 148 1 A Three. 2 Q You mentioned that you saw some men exiting 3 San Felipe's who were, quote, whooping it up and 4 yelling. 5 A Uhm-hum. 6 Q Were they whooping it up and yelling in a 7 fashion that would lead you to believe that they had 8 been drinking? 9 A No. Actually, they looked quite sober. 10 Q So you felt that these gentlemen had had 11 nothing to drink? 12 A I -- I'm not -- I can't say that they 13 didn't have anything to drink, no. 14 Q Now, you also mentioned that you saw the 15 San Felipe's employees restraining these individuals 16 and that you believed that they were holding them 17 until the police came; is that -- 18 A Yeah, that was -- that was very evident to 19 me. That's what they intended to do. 20 Q How did you know the police were coming? 21 A Well, there's quite a brawl going on in the 22 middle of Walnut Street. I would assume the police 23 would eventually arrive, assuming . . . 24 Q So what was the basis for the assumptions 25 you made regarding the men that the San Felipe's 149 1 employees were restraining? What had you seen them 2 do. 3 A My assumption was they had done something 4 wrong in the bar, and whatever that was, it was 5 serious enough for the San Felipe's staff to restrain 6 them, which -- and they restrained them with bear 7 hugs, and I think they used -- you know, I think they 8 were really -- considering all that was going on, 9 they didn't punch them, they didn't try to do 10 anything to restrain them. 11 Q And based on what you were assuming had 12 occurred in the bar, did you feel it was reasonable 13 or unreasonable? 14 A I felt it was quite reasonable the way they 15 handled it. 16 Q Because these gentlemen had done what? 17 A I didn't know what they did. 18 Q And during this time that you were making 19 these observations and these assumptions, all the 20 San Felipe's employees that you were referring to, 21 were all outside of San Felipe's; is that right? 22 A I only learned later that the San Felipe's 23 people all wear flowered shirts, or Hawaiian shirts, 24 and that's how they basically identify the staff in 25 the bar. And that's how I know there were a lot of 150 1 San Felipe's people out there. Initially I saw only 2 two. 3 Q And those two were outside of San Felipe's? 4 A Those two were outside. 5 Q And they were restraining some other -- 6 A They were restraining one gentleman or two. 7 It was a real mixed bag of things out there. 8 Q Thank you. That's all the questions I 9 have. 10 CHAIRMAN DAVIS: Redirect. 11 Any questions from the authority? 12 MR. COOPER: I have a few. 13 EXAMINATION 14 BY MR. COOPER: 15 Q I'm kind of confused with your testimony. 16 I would like to go over it a little bit. Just 17 straighten me out wherever I'm wrong here, because 18 what I heard you say was, that you were walking down 19 the street -- 20 A Yeah, I was crossing Walnut south. 21 Q You saw a group of people come out of the 22 bar, just having a good time. 23 A Uhm-hum. 24 Q You saw two other people come out that you 25 have no idea who they were -- 151 1 A The first group passed me, this group that 2 I had saw. And, yes, I recognized one of the 3 managers from San Felipe's. 4 Q So you do know the people personally? 5 That's how you recognized them? 6 A Yes, I know one of the people personally, 7 the general manager, Mr. Said. 8 Q Okay. So that's how you knew him. 9 They came out and grabbed these people? 10 A Uhm-hum. 11 Q You hadn't seen them do anything wrong, 12 though? 13 A No, I hadn't seen the people that they were 14 restraining do anything wrong. 15 Q But based on the fact that you knew this 16 person was a bouncer, that's how you knew -- 17 A Well, I assumed. 18 Q -- they were dealing with something that 19 probably occurred in the bar? 20 A Yeah. Yeah. 21 Q And then at that point, you saw one officer 22 come running up, stop, mace everybody, and then take 23 off after another person? 24 A Not everybody. He didn't have a chance to 25 mace everybody. He was -- this was -- 152 1 Q No, I mean as far as the group, I don't 2 mean, obviously, everybody in the area, but -- 3 A He -- part of the crowd. 4 Q Okay. And then the officer -- did he 5 identify himself or say anything, or did he just mace 6 anything -- 7 A He didn't say a thing. I watched him walk 8 up. He was -- he was in the street coming south, he 9 was actually in the street on Linden Street coming 10 into this, and he walked right in the middle of it. 11 I don't know if he had the choice or not, but he took 12 out his pepper spray and started spraying people. 13 And at that point, the officer -- 14 something happened that I didn't see and he was -- he 15 took off running down Linden Street north, chasing an 16 individual. 17 Q Okay. 18 A And leaving this whole -- now there's no 19 other police present at this point. The officer's 20 gone and the squad cars hadn't arrived yet. 21 Q How big a group would you say was there by 22 that point? 23 A There were at least 75 or 100 people in -- 24 you know, to the left and right of me. I don't know 25 what was behind me. 153 1 Q Okay. Do you have any other relationship 2 with this business other than personal knowledge 3 of -- just as a patron? 4 A They're clients of mine. Mostly all the 5 liquor establishments in Fort Collins are clients of 6 mine. 7 Q Okay. Thank you. 8 EXAMINATION 9 BY MR. SCHMITZ: 10 Q Question: You said the officer, when he 11 went up to this group of people, he didn't say a 12 thing. 13 A No, he -- 14 Q How close were you to this officer? 15 A 25 feet. 16 Q Okay. And there was approximately how many 17 people? 18 A Hard to say. You know, 75, 100 people. It 19 may be in missing my vision, my peripheral vision. 20 Q Were the majority of those people 21 hollering, cheering -- 22 A No, most people were just watching. 23 Q Watching. So you would definitely have 24 been able to hear the officer if he had given the 25 crowd some sort of command? 154 1 A Well, you know, I saw the officer coming, I 2 expected -- I expected him to do something. I didn't 3 know what he was going to do. He -- he -- like I 4 said, he walked right in the middle of this whole 5 thing. And -- 6 Q So there's no chance you wouldn't have just 7 not heard it? 8 A No. No. I watched him as he approached 9 and as he took his pepper spray -- pepper spray out 10 and started using it. 11 Q You also stated, I believe, that you saw 12 four people walking out of the bar, good mood, didn't 13 appear that they were real overly intoxicated or 14 anything like that? 15 A No, I didn't say these people were 16 intoxicated. They were -- you know, they looked like 17 they were having a good time, and -- 18 Q Okay. Now, is this some of the four that 19 came from San Felipe's -- 20 A There was more than four. There was seven 21 or eight of the -- it was just young Hispanic 22 gentlemen. 23 Q But it was members of that seven or eight 24 that the staff was restraining? 25 A Yes. Yes. 155 1 Q Did you -- weren't you curious on: Why is 2 the staff restraining somebody that's not doing 3 anything wrong? They're just out having a good time, 4 they're not fighting. I mean, why would the 5 bartender be giving somebody bear hugs during -- 6 A I assumed that something had gone down in 7 the bar and that the staff was acting accordingly. 8 Q How did you hear -- how did you hear of 9 this meeting tonight? 10 A I was contacted by a member of the 11 San Felipe's staff, and they had -- they had known I 12 was there and seen me there, and I had acknowledged 13 that I was there. And I said yeah, I saw the fight 14 the other night. That was -- 15 Q Thank you. 16 CHAIRMAN DAVIS: Additional questions? 17 MS. DAVIET: If I may, I have some more. 18 CHAIRMAN DAVIS: Go ahead. 19 RECROSS-EXAMINATION 20 BY MS. DAVIET: 21 Q Sir, the newspaper that you work for is The 22 Scene, is that right? 23 A Uhm-hum. 24 Q And part of what that newspaper does is 25 advertise bars and bar specials and that sort of 156 1 thing. 2 A We are a dining and entertainment, theater, 3 all sorts of artists and entertainment. 4 Q And had your paper at one time or another 5 contained advertisements for San Felipe's? 6 A Yes. 7 Q Thank you. 8 A As well as all the bars in Fort Collins. 9 CHAIRMAN DAVIS: Questions. 10 Thank you, sir. 11 MR. OLDHAM: Whoa. Pardon me. 12 CHAIRMAN DAVIS: Oh, did you have a 13 question? 14 MR. OLDHAM: No, several questions. 15 CHAIRMAN DAVIS: Go for it. 16 EXAMINATION 17 BY MR. OLDHAM: 18 Q Mr. Mockler, did you have any alcohol at 19 Aggie's? 20 A Yes, I had a vodka and cranberry. 21 Q Did you have any alcohol at the Crown? 22 A Yes. 23 Q Did you have any alcohol at the Elliot's? 24 A No, I did not. 25 Q Did you take photographs of the -- 157 1 A Yes. 2 Q Did you take photographs at the Crown? 3 A No, I didn't. 4 Q Did you take photographs at Aggie's? 5 A Yes. 6 Q When you left Elliot's, you had your 7 camera with you? 8 A Camera. 9 Q Did it have film in it? 10 A Yes, it did. 11 Q Did you take photographs of the episode? 12 A No, I did not. 13 Q Did you have your camera with you? 14 A Yes, I did. 15 Q So you just decided to watch but not 16 photograph? 17 A Not my idea of entertainment, fighting in 18 the street. 19 Q Would that be good advertising? 20 A I don't think so. 21 Q The 75 to 100 people that were -- you were 22 estimating were present, do you know where they came 23 from? 24 A Yeah, I saw some people that were in 25 Elliot's, they were there. This is -- this was -- 158 1 this went on for quite awhile. You have to 2 understand, the time frame of this was maybe five to 3 eight minutes. I didn't look at a watch. I don't 4 wear a watch, so I can't really tell you, but it 5 seemed like this went on and on and on. 6 And I was, "Where's the police?" That was 7 my thought. And when the officers finally showed up, 8 the one on foot, I said, "Well, this will be taken 9 care of now," and it wasn't. It just escalated at 10 that point, as people got maced and then the officer 11 took off down the street and left the whole 12 incident -- it just kept going and evolving. 13 Q Are you saying that he was not in control 14 of the episode before he left? 15 A Oh, no, not at all. The officer was 16 inundated with -- he didn't even get to the main 17 group of people that were restraining the two people. 18 He never even approached that. He was -- I guess 19 something else was going on out of my line of sight, 20 and I saw the officer and I saw him take his pepper 21 spray out, but I don't know why he did that. 22 That -- that is not in my knowledge why he 23 did that. 24 Q So he didn't come close to controlling the 25 episode when he was there? 159 1 A Oh, no, not at all, not at all. And then 2 he ran down the block chasing somebody. I don't know 3 what became of that. 4 Then another squad car showed up and 5 basically -- with a siren really blaring and just 6 trying to get through the crowd so he could -- and 7 that car -- that car followed the officer that ran up 8 the street, I guess for backup purposes. 9 Then the other two cars, squad cars finally 10 came. And when they came, I -- like I said, the 11 people that the other people were holding were taken 12 into custody by the police at that point. 13 And then it -- you know, it basically 14 mellowed out to a point, you know. There wasn't no 15 more pushing and shoving. The police on the scene 16 pretty much had control of everything. They didn't 17 mace anybody anymore, at least. 18 Q Thank you. 19 EXAMINATION 20 BY MR. SCHMITZ: 21 Q What were the bouncers telling the people 22 they were restraining? If you want to call them 23 bouncers. 24 A Well, they came out, you know, saying, 25 "Stop, stop," you know. "We want to -- you know, we 160 1 want you to wait here, you know. Stop." 2 And they didn't want to, of course. And 3 the bouncers restrained them. I didn't see any of 4 the bottle or anything. This was not in my line of 5 sight. But they were restraining, basically -- what 6 I thought, they were holding them for the police. 7 That was my impression. That's what I got from this 8 whole thing. 9 Q Thank you. 10 A I don't think they were doing it, you know, 11 with malice aforethought, my assumption apparently 12 was right, something did happen in the bar, but 13 still, I just learned tonight what that exactly was. 14 CHAIRMAN DAVIS: Any additional questions 15 from the authority? Mr. Oldham. 16 Okay. Thank you very much. Next witness. 17 MR. DOW: Ray Tomsick. 18 RAY TOMSICK, 19 having been first duly sworn, was examined and 20 testified as follows: 21 DIRECT EXAMINATION 22 BY MR. DOW: 23 Q State your name and spell your last name. 24 A Raymond Patrick Tomsick, T O M S I C K. 25 Q You're a resident of Fort Collins? 161 1 A Yes, sir. 2 Q Are you employed by San Felipe's? 3 A Yes. 4 Q How long have you been employed by 5 San Felipe's? 6 A Since the opening on February 20th. 7 Q What's your position? 8 A I'm the head bartender there. 9 Q Okay. Were you there and working the night 10 in question, last Friday? 11 A Yes. 12 Q Where were you when the fight first broke 13 out inside the bar? 14 A I was working the front bar register, which 15 is close to the front door. 16 Q Behind the bar? 17 A Yes, sir. 18 Q But close to the front door? 19 A Yes. 20 Q Could you please briefly describe for the 21 board your observations of this group and what 22 occurred? 23 A I would say roughly anywhere from 12:45 to 24 1:00, a group of seven to nine Hispanic males came 25 in. The reason it set back in my head is because 162 1 when they came in, one of them came up and ordered a 2 significant amount of Coronas for each one of them, 3 but I'm trained to say -- like he asked me for seven 4 Coronas. I had to say, "I need to see all seven 5 people before I can give you seven beers." So that's 6 why they stood out in my head. 7 After that -- so I gave them the seven 8 beers, all -- to each separate person. They paid for 9 them, and then they pretty much kind of just milled 10 around the front of where I was working, so as I was 11 working, looking down, making change, bartending, 12 whatnot, you know, they were pretty much in front of 13 me right there. 14 Q To your knowledge, had they been in the bar 15 previously that night? 16 A No, sir. 17 Q Had you ever seen them before that night? 18 A No, sir. 19 Q Okay. What occurred next? 20 A I was looking down, making change, 21 bartending, and I heard a microphone drop like over 22 the speaker, and I looked up and I saw Said, who was 23 the manager on duty, go over. 24 And I just kind of saw like a little, you 25 know, group of people, but I knew he jumped off the 163 1 bar. 2 Then I saw -- then I saw him go outside, so 3 I in turn jumped over the bar, to make sure 4 everything was all right, to, you know, help with the 5 situation. 6 I went outside and saw Said and Rick just 7 by themselves, you know, telling these guys to stop. 8 And I still didn't know what was going on, but I just 9 saw a group of, like I say, seven to nine individuals 10 and two of our staff out there, so I came to just add 11 another body, you know. Hopefully nothing would 12 happen. 13 Q Did you actually see the bottle-striking 14 incident? 15 A No, sir. 16 Q When these six or seven individuals first 17 came in and were served, did you observe them to 18 determine if they were intoxicated? 19 A Yes, definitely. And especially the person 20 who ordered the Coronas, because when he says seven 21 Coronas, well, you know, I mean, if he's going to 22 say, "No, those are all for me," I kind of want to 23 evaluate him. So, yes, I did evaluate the people. 24 Q What were your observations about the 25 condition of those individuals at that time? 164 1 A They seemed fine. They were talking 2 clearly, I could understand everything they were 3 saying. He was very coherent with how he paid for 4 his -- paid for his drinks, he got his money very 5 quickly and efficiently. 6 Q Once the party left and went outside with 7 the other personnel from San Felipe's, what did you 8 do? 9 A I came up behind Rick and Said, to the 10 right -- to the right of Rick, as I was -- like 11 they're struggling with the guy, I was just more 12 standing there to make sure, you know, nothing was 13 going to happen. Nobody was going to get 14 blind-sided. 15 They were kind of -- we were kind of 16 playing tug of war with the guy, but we just kept 17 saying, you know, "Let them go, let them go" -- the 18 other people saying, "Let them go." They were 19 saying, "The police are going to be here. The police 20 are going to be here." 21 Q Do you know at that time why Rick and Said 22 were attempting to restrain those two individuals? 23 A Well, Said, at that time, said, "One of 24 them has a bottle," so I -- that's what I assumed 25 that to be. So I kind of backed up off of that, and 165 1 grabbed Rick's flashlight out of his back pocket. 2 Q Was that the end of your involvement with 3 the altercation outside? 4 A No, sir. 5 Q Again, briefly tell the board what you did 6 after that. 7 A After that, Rick took the individual who, 8 you know, I -- who we thought had struck the person 9 with the bottle inside, onto the grounds. His 10 friends were still saying, "let them go. Let them 11 go." We were saying, "The police are coming. The 12 police are coming." All I did was stand by Rick, 13 kind of in a -- 14 Q Slow down just a little bit because she's 15 trying to take this down. 16 A In a half crouched-down position with my 17 hand on him, looking around the whole time just to 18 make sure nobody was going to come and do anything to 19 us. That was the only physical contact. I was never 20 punched, nor did I ever have to punch anybody or 21 anything. 22 Q You indicated you are the bar manager? 23 A Yes, sir. 24 Q In that connection, are you familiar with 25 the policies of the owners and the management of 166 1 San Felipe's? 2 A Yes. 3 Q What is the policy, for example, with 4 respect to nudity or partial nudity? 5 A Any of that that's displayed is very 6 quickly told to stop. If somebody is to -- you know, 7 looks like they're even going to take off their shirt 8 or do anything, they are told to get off the bar, 9 talked to, tell them, "There's zero tolerance in our 10 establishment. If we see it again, you will be 11 escorted out." 12 Q And have you escorted the people out for 13 that reason. 14 A I have gotten security staff to do that. 15 Q Have you ever observed any sexual activity 16 in the bar? 17 A No. 18 Q And what's the policy with respect to that? 19 A That's zero percentage -- zero tolerance. 20 Q What's the policy with respect to observing 21 obviously intoxicated patrons? 22 A Zero tolerance. 23 Q What's the policy with respect to fights in 24 the bar? 25 A Zero tolerance. 167 1 Q Do you do your best to enforce those 2 policies as the bar manager? 3 A Yes, sir. 4 Q And are you involved in training other 5 personnel in the bar relative to those policies and 6 how to conduct themselves? 7 A I more get trained along with the people 8 who are qualified to train me. 9 Q You've received training concerning these 10 types of matters. 11 A Yes. 12 Q What type of training, briefly? 13 A Before I joined San Felipe's, I worked for 14 Old Chicago and they do a TIP-certified class. You 15 have to take that. So I have a TIP-certified card 16 from them. Along with that, we had a police officer 17 with the Fort Collins Police Department come and talk 18 to us about liquor code, fake IDs, things of that 19 matter, more concentrating on how to identify 20 intoxicated people. 21 Our head security officer, Rick, who used 22 to be a police officer, went through a training 23 program with us as well, and it's always ongoing, you 24 know. Look for this, look for that. It's an ongoing 25 training thing with the bartender, it's just -- if 168 1 it's -- just getting information out there. 2 Q And have you had any occasions to meet with 3 or discuss any management or policy problems with any 4 personnel from Fort Collins Police Department 5 relative to San Felipe's? 6 A No. 7 Q That's all I have. 8 CHAIRMAN DAVIS: Cross. 9 CROSS-EXAMINATION 10 BY MS. DAVIET: 11 Q What is San Felipe's policy with regard to 12 door staff handling all altercations outside the 13 business? 14 A In that aspect, I'm not up with what the 15 security people do with that. I more handle the bar 16 aspect, so I do not know. 17 Q So based on what you're saying, would it be 18 accurate to say that all employees of San Felipe's 19 are not informed of what all the policies are? 20 A Everybody that is in their department is 21 informed on the policies of their department. Know 22 your job. 23 Q So any individual who's employed in a 24 particular department is not informed of the policies 25 of the other departments? 169 1 A To my knowledge, everybody that works in 2 their department is informed of the policies of that 3 department, if that's what you're asking. I guess 4 I'm confused. I'm sorry. 5 Q What's the name of the department you work 6 in? 7 A The bar. Bartending. I take care of the 8 bartending and everything that goes on behind the 9 bar. 10 Q So you aren't informed of the policies 11 regarding door staff handling altercations outside 12 the business? 13 A No. 14 Q So a person working in San Felipe's who is 15 in one department, is not informed of all the 16 policies regarding people working in other 17 departments? 18 A Yes. 19 Q So is there any employee at San Felipe's 20 who's been informed of all the policies, to your 21 knowledge? 22 A Yes, that would be our management -- our 23 management staff, our assistant general manager, 24 Said, Jay Gonzalez, our general manager, and that -- 25 those type of people. 170 1 Q And are those two gentlemen on the premises 2 at all times? 3 A Yes. Well, along with our other managers 4 on duty that we have, one of those people are, too -- 5 we just have two new managers and to my knowledge 6 they're fully trained on all the policies and 7 procedures and everything. 8 Q So other than the manager who happens to be 9 on duty at a particular time, no one else at 10 San Felipe's is informed of all the policies? 11 A To my knowledge, no. 12 Q Thank you. 13 CHAIRMAN DAVIS: Any questions by the 14 authority? Frank. 15 EXAMINATION 16 BY MR. OLDHAM: 17 Q Is this your only job, sir? 18 A Yes. 19 Q How often do you work there? 20 A I bartend five to four days a week and help 21 take care of other aspects with liquor ordering and 22 bar stuff. 23 Q Do you work 40 hours a week? 24 A Yeah. 25 Q What are your days on in terms of 171 1 bartending? 2 A All the busy ones, Tuesday nights, Thursday 3 nights, Friday nights, and then I'll pick up a shift 4 here and there if need be. 5 Q Did you work last Monday night? 6 A This Monday night that we just had? 7 Q Yes. 8 A No. 9 Q Are you familiar with the policy of giving 10 birthday shots? 11 A Yes. 12 Q How did that develop? 13 A It was a thing that just kind of came 14 about. I mean, we just kind of did it. There's 15 always been -- 16 Q Who's "we"? 17 A We is just the bartending staff. There's 18 always been, as long as I've been -- because I've 19 worked for old Chicago and Bennigan's, there's always 20 been a blow-job shot with everywhere I work. It's an 21 actual shot. 22 Q At Bennigan's there's blow-job shots? 23 A It's something that everybody knows how to 24 make that's a -- 25 Q And Old Chicago serves -- 172 1 A I served many blow-job shots when I worked 2 at Old Chicago. 3 Q Okay. How do you serve them? 4 A How do I serve -- 5 Q Demonstrate, if you would, how you serve a 6 blow-job shot. 7 A For the most part, I get up on the bar. If 8 the girl's not perceptive to the idea, then we just 9 say -- 10 MR. DOW: Is there hot coffee in that? 11 THE WITNESS: If the girl or -- from the 12 girls, if they don't want to do it, then I say, 13 "Here, happy birthday," you know. I gave them a hug, 14 pat on the shoulder and, "Hope you have a good time." 15 We still get them up on the bar so they can say their 16 name and age to get the recognition. 17 If they do want, you know, to -- because 18 lots of times the girls, they're like, "Yeah, do it," 19 and all their sorority sisters say, "Do that," so 20 all -- I hold the cup right here. They take the shot 21 and I help them back like that, and I take my bar 22 apron and wipe up their mouth and say, "Happy 23 birthday," and they get off the bar. 24 And if they don't want to get off, then I 25 just let them dance. 173 1 Is that -- 2 Q That was nice. 3 EXAMINATION 4 BY MR. SCHMITZ: 5 Q What's your -- what do you do at the bar 6 when the door person's sick, can't come to work that 7 day? 8 A We always have ample security staff on. 9 Q Now, is that somebody that always works at 10 the door? Somebody that -- 11 A No, we have at least four to five security 12 staff guys on a night from anywhere from 9:00 to 13 10:00 a.m. at night until we close. So there's 14 always an ample amount of security. 15 I would say for the Fort Collins area bars, 16 we have the biggest security staff on nightly. 17 Q Okay. 18 A As in a group of people. 19 Q But is that their department? 20 A What do you mean? I'm sorry. 21 Q Well, there's a door person department. 22 A You get a bartender department -- each one 23 of those policies -- when somebody's sick and 24 somebody fills in, it's another door person. 25 Q It's another door person? 174 1 A Yes. 2 Q So you never have a door person working 3 behind the bar and you never have a bartender working 4 the door? 5 A I mean, people have been like promoted 6 from, let's say, door staff to bartender so they 7 would know that job, but no, no door person just 8 comes and works as a bartender, and no bartender in 9 turn would work as a doorman for the night. 10 Q Okay. You said you have a zero tolerance 11 for fights. What does that mean? 12 A Well, that we don't promote fights. We 13 don't let fights go on. 14 Q So if there's fights, what happens? 15 A The security staff will intervene. If -- 16 let's say, if I, as a bartender, see that, then I 17 notify the security staff. If I'm the closest person 18 to that, you know, I'll get everybody else's 19 attention and then the security staff will intervene. 20 Q Okay. So if I was in there and I threw a 21 punch and hit somebody in the face, and you have zero 22 tolerance with that, does that mean I'm out of the 23 bar? 24 A Yes. 25 Q Okay. You said you had zero tolerance for 175 1 partial nudity? 2 A Yes. 3 Q Why is it that those people don't have to 4 leave the bar? You stated that they were warned, and 5 if they did it again, since you have zero tolerance, 6 they have to leave. And one's zero -- 7 A When I say -- 8 THE CLERK: Wait. 9 THE WITNESS: I'm sorry. When I say zero 10 tolerance, I mean, we do not want that, promote that, 11 or allow that to go on at all. 12 If somebody throws a punch, we kick them 13 out because there's an altercation between them and 14 another person, and we do not want that to grow into 15 something wider. 16 If some girl thinks for some reason she can 17 take off her clothes, for whatever reason -- because 18 it's not promoted there, that's what I mean by zero 19 tolerance, that's why we tell her to get down, you 20 know, that do -- I mean, lots of times it will be 21 like somebody going like this, and a bouncer or a bar 22 security person or a bartender coming up before that 23 even happens. It will be like, "No, no, you can't do 24 that. We don't allow that. If you do that again" -- 25 after they already are told -- "we will kick you 176 1 out." 2 We had a problem with two to three girls. 3 After they did it once, we told them, "No, don't do 4 that. Put that back on." They did it again. They 5 were never -- they were never allowed back into the 6 establishment. 7 So maybe zero tolerance is the wrong way to 8 phrase it, but after we told them once, then the 9 people that did it again were never -- were not 10 allowed back in San Felipe's Cantina. 11 Q You realize both of those situations, 12 though, it is against the law in the city of 13 Fort Collins, whether it's taking your shirts off in 14 public or throwing a punch -- 15 A Right. The girls that had done it before 16 were kicked out -- when I say people say partial 17 nudity, it's girls are going to the extent of maybe 18 even going like that, but usually with the amount of 19 door -- security personnel we have on watching the 20 bar -- because the bar, they're raised up on the bar. 21 If that's going to happen, it's -- I would 22 say 99.9 percent of the time we're taking care of it 23 before even any nudity gets displayed. 24 Q Thank you. 25 EXAMINATION 177 1 BY MR. MORRIS: 2 Q Mr. Tomsick, why do you hold that cup where 3 you do for the birthday shot? 4 A Hence the name. I mean, not -- you -- 5 it's -- it's much -- it's what a girl did when I got 6 up to do a blow-job shot and it just kind of became a 7 tradition. 8 Q Okay. 9 A But I just -- I hold it out in front of her 10 while she's on her knees. 11 Q And has the management witnessed this and 12 have they seen this occur on top of the bar? 13 A Yes. 14 Q Thank you. 15 EXAMINATION 16 BY MR. SCHMITZ: 17 Q Do you feel that that holding the cup where 18 you do, is to simulate a sexual act? 19 A No. 20 Q Then what's, "hence the name"? What did 21 you mean by that? 22 A It's because the way the girls do the shot. 23 Let's say -- I've also given it to girls that stand 24 on the -- are sitting by the bar, put it down in 25 front of them and they don't use their hands to take 178 1 the shot. That's what I would guess the name might 2 have come from. 3 Q Thank you. 4 EXAMINATION 5 BY MR. COOPER: 6 Q I'm sorry, but I don't -- I'm wondering 7 about that. We just had the officer testify up here, 8 Officer Porter, that it was totally different than 9 the way you described it. Are you telling me that he 10 lied under oath? 11 A He -- he asked me how I give the shot to a 12 girl. That's how I give the shot to a girl. 13 Q How about the other bartenders? Have you 14 seen it done the way this officer described? 15 A I've seen -- with -- with the girls, yes. 16 With the guys, it's different. I don't -- do you 17 understand what I'm saying. 18 Q I understand what you're saying. 19 So with the girls, it's actually simulating 20 a sex act, but with the guys it's not, is that what 21 I'm hearing? 22 A I -- I wouldn't say that's simulating a sex 23 act. If that's how somebody else perceives it, then 24 that's how they perceive it. 25 Q What is your impression of it? I mean, 179 1 what's the purpose behind it? 2 A To get the person up on the bar and 3 recognize it as their birthday and -- 4 Q And what do all the patrons recognize it 5 as? 6 A That that -- it's that person's birthday. 7 It's kind of a tradition. 8 Q I'm talking about what is occurring -- 9 A I couldn't say what other people perceive 10 it as. 11 Q Okay. What is your policy on leaving the 12 bar and helping the door? What do they teach you, 13 since you don't know what the door policy is, that's 14 a different department -- 15 A Right. 16 Q -- what do they teach you about leaving and 17 helping them, since you don't know what they do? 18 A Actually, I was told not to leave the 19 building. At that time, I'd seen other security 20 staff dealing with the victim that got hit with the 21 beer bottle. I went outside to assist, for one, to 22 watch the front door. There was another security 23 person watching the front door. Since I am the bar 24 manager, I went outside to assist the other two staff 25 members of San Felipe's for their -- 180 1 Q So you were violating policy? 2 A I -- if you want to -- 3 Q Well, I'm asking you. You said the policy 4 is you shouldn't do that. 5 A I don't -- I don't know -- I said I don't 6 know what the door policy is. If that's the door 7 policy, that's been violated. 8 Q Let me explain what I'm asking, because I'm 9 confused. 10 A Okay. 11 Q I said, what is the policy of the bar, with 12 the department you're in, on helping at the door when 13 you haven't been trained to do their job? 14 A I -- but -- okay, let me restate this. As 15 a bar manager, I'm also responsible to help -- 16 helping be responsible to the management team with 17 the overall San Felipe's. I went outside to check on 18 two staff members to make sure that there was nothing 19 bad. 20 So my first thought was for their 21 well-being. Whether I did the right thing or not by 22 the policy, I don't know. But for -- as a bar 23 manager, I was watching two of our other staff's, you 24 know, backs. So to say did I feel I did the right 25 thing, I don't know if I violated policy or not -- 181 1 Q That's what I'm trying to find out here. 2 A I don't know. 3 Q So what you're telling me is that you are 4 the backup manager in that business -- 5 A No, I'm not saying that. I said I'm the 6 bar manager. 7 Q Okay. But you just got done saying as a 8 bar manager you have to back them up also. 9 A I didn't say I have to back them up. I 10 said it's one of my responsibilities to watch out for 11 the good of the business. 12 The good of the business, to me, is making 13 sure that the employees are safe. So me being 14 outside was helping to make sure that the two 15 employees were going to be safe, to see what I was 16 going to do. 17 That was the first thing on my mind. 18 Whether it was the right decision, I don't know -- 19 Q Why did you think they wouldn't be safe out 20 there. 21 A Because I saw -- I saw the group of 22 Mexican -- I'm sorry, Hispanic people go outside 23 earlier, so I knew relatively how many there were, 24 and I only saw two of our staff go outside. So -- 25 Q So you considered this to be a serious 182 1 incident? 2 A I didn't consider it to be a serious 3 incident, but I considered it to be something that 4 could perhaps happen, so that's why I went outside. 5 Seven guys go outside and two guys go out 6 to see what's going on. I decided to add a third to 7 even up the numbers a little bit. 8 Q So you think two to one is fair odds, is 9 that what you're telling me? 10 A Sir, I'm not telling you what I think is 11 fair odds. I'm just telling you that I was concerned 12 for the well-being of two of my coworkers, and that's 13 why I went outside. Whether it was the right 14 decision at the time, I don't know, but I feel that I 15 made the right decision for being concerned about my 16 coworkers. 17 Q What was your intent to take that 18 flashlight? You said you took the flashlight from 19 one of your coworkers. 20 A To make sure that if something did happen, 21 if anybody would -- nobody else would be able to grab 22 that and use that as a weapon. I figured I have it, 23 nothing else can happen. 24 Q So you were going to use it as a weapon and 25 nobody else could? 183 1 A No, I didn't say that. I said to make sure 2 it did not get used as a weapon. 3 Q Okay. 4 A So no individual, unknown to me, a 5 bystander, an onlooker, could take the flashlight -- 6 one of those group of people took the flashlight and 7 use it in a violent way, so I figured if I had the 8 flashlight, I know I'm not going to use it in a 9 violent way, that just eliminated that. 10 Q You said that all seven of the individuals 11 were sober when they came in? 12 A I wouldn't say -- I mean, sober would be no 13 drinking at all. They did not look overly 14 intoxicated or really intoxicated, to my knowledge. 15 Q Okay. So what I'm hearing you say is that 16 they had been drinking but they weren't intoxicated? 17 A No, I -- no, I said sober would be not 18 drinking at all. 19 Q Right. 20 A I can't tell you if they had a drink or two 21 before they came in, but they -- the -- with the 22 stuff that I have been trained in, looking at their 23 eyes, looking at their speech, seeing how cognizance 24 they are, paying for their drinks, seeing how 25 efficient they are with pulling out their money and 184 1 paying quickly, paying the right amount, I did not 2 get any of those signs to tell me that they were 3 overintoxicated or about to be overintoxicated. 4 Q I guess the question here is: In your 5 opinion, they weren't intoxicated? 6 A No, sir. 7 Q They were somewhere between sober and 8 almost there, but not there yet? 9 A They were not -- they were not intoxicated 10 at all. And I'd only served them one beer the whole 11 time they were there. 12 Q So if the officers testified that they were 13 intoxicated that night, they would have had to have 14 gotten intoxicated in that business and somebody else 15 might have served them? 16 A To what I've been trained on, they were not 17 intoxicated even when they were outside, restraining 18 them. 19 Q So if the officers testify that they're 20 intoxicated, either you're wrong or they're wrong, 21 correct? 22 A Correct. 23 Q Okay. Thank you. 24 25 EXAMINATION 185 1 BY MR. MORRIS: 2 Q Mr. Tomsick, I do have another couple 3 questions. 4 A Yes, sir. 5 Q Do you have a two-margarita limit in effect 6 for your patrons? 7 A Yes, we have a two-margarita limit. That 8 along came with another liquor control we put in, in 9 the beginning when we had a problem with that, and we 10 had a fishing bowl margarita that we got rid of to do 11 away with those type of problems as well. 12 Q Okay. And how much -- how many ounces is a 13 margarita? What -- 14 A 14. 15 Q 14? 16 A 14 ounces. 17 Q And how much alcohol is in it? 18 A Two ounces -- well, two ounces of tequila, 19 and I would say a quarter ounce of Triple Sec. 20 Q Okay. And that's it? 21 A So two, two and a quarter ounces, is about 22 normal. 23 Q Okay. And how did you monitor that 24 two-margarita limit? 25 A For the most part, when it gets busy, we -- 186 1 we communicate pretty well -- there's only three 2 bartenders on, even on our busiest nights, which we 3 communicate well throughout with each other. I mean, 4 does it always happen that somebody only gets two 5 margaritas? No, we try to work with the best system 6 that we have. 7 So we try very hard to communicate with 8 each other. "This person's had this much to drink, 9 this person's had this much to drink." 10 Now that we've been open for awhile, we 11 have a decent regular base -- regular customer base 12 where I know a lot of faces just by seeing them, so, 13 no I know them, a lot of the people come to the same 14 bartenders, all the time, you know, for the most 15 part. We just communicate with that, along with how 16 we communicate when -- if we cut somebody off behind 17 the bar. Every bartender -- we tell every bartender, 18 "That person's cuts off," I go and look at that 19 person and say, "Okay, that person's cut off." 20 I get the other two bartenders and they 21 look at that person and know this person's cut off. 22 We just communicate everything when it comes to that 23 aspect. 24 Q Does that communication extend to your door 25 staff? 187 1 A Yes. When I cut somebody off, I tell -- we 2 have signals we use that Rick put into effect. If I 3 think that something's going to happen, say, an 4 altercation, say, I just don't think -- if I think 5 somebody's getting a little drunk, see what we do is, 6 like, the bar, you know, it's rather wide, so lots of 7 times I can't hear, and they are in there with the 8 music, and if I'm busy, I'll tell one of the 9 bouncers, that means, like, you know, watch this 10 person right here, go talk to them to see if they're 11 intoxicated. 12 So a bouncer -- or a security staff who 13 Rick has also trained in, you know, the signs of 14 intoxication, can go over and evaluate that person. 15 "Yes, that person is okay, you know, you just 16 couldn't hear him because the music was loud." 17 "No, that person's not okay, you should not 18 serve him anymore," so, yes, we do communicate to the 19 security staff, which we usually have 12 on each side 20 of the bar, this person's cut off, this person's cut 21 off. 22 You know, just by pointing, signs are 23 really effective. And then the door staff even help 24 us evaluate the customers to see if they should be 25 cut off, if they should not be cut off, and then they 188 1 relay that back to us as the bartenders. 2 Q Thank you. 3 A No problem. 4 EXAMINATION 5 BY MR. SCHMITZ: 6 Q How many people did you alert security to 7 that night that they might want to talk to them 8 because they were intoxicated? 9 A I didn't communicate that to -- who, the 10 Hispanic males? 11 Q Anybody in the bar that night. 12 A Oh, I would -- well, I state -- I think I 13 at least cut off two to three people who I felt were 14 too intoxicated. And, I mean, maybe -- maybe another 15 security staff person to talk to them, or to watch 16 somebody. 17 A big thing what we do is we watch and 18 there's elevated positions that the security staff 19 can sit on, or if somebody's on the bar, you know, 20 sometimes it's hard to tell if they're having a good 21 time or -- you know, so it's all about communicating, 22 which I feel that we do really well. 23 EXAMINATION 24 BY MR. OLDHAM: 25 Q Have you ever seen anybody passed out from 189 1 the effects of alcohol in your bar? 2 A No, sir. 3 Q Have you ever seen anybody passed out 4 outside your bar from the effects of alcohol? 5 A No. 6 Q Did you ever see anybody have a walking 7 impairment as a result of drinking alcohol in your 8 bar? 9 A Yes, sir, but that -- then I communicate 10 that the bouncer -- or to the security person and 11 then we do, you know, escort them out. That's one of 12 the signs of impairment. Somebody could be sitting 13 down having some drinks and then they get up and they 14 start wobbling a little bit, that's when I 15 communicate that to the rest of the bartenders and 16 the security staff we have on that night. 17 Q Thank you. 18 A No problem. 19 CHAIRMAN DAVIS: Additional questions from 20 the authority? Do you want to -- 21 REDIRECT EXAMINATION 22 BY MR. DOW: 23 Q One question. Approximately how long was 24 it from the time you served these individuals these 25 seven Coronas, how long after that time was it that 190 1 the fight broke out? 2 A I would say that I served the individuals 3 the Coronas at around 1:00 and I would say that the 4 altercation took place around the time of 1:30. So I 5 would say anywhere from 20 to 30 minutes. 6 CHAIRMAN DAVIS: Any other questions? 7 MR. DOW: No. 8 CHAIRMAN DAVIS: Thank you very much, sir. 9 THE WITNESS: Thank you. 10 MR. DOW: Jesse Howard. 11 JESSE HOWARD, 12 having been first duly sworn, was examined and 13 testified as follows: 14 DIRECT EXAMINATION 15 BY MR. DOW: 16 Q State your name and spell your last name 17 for the record. 18 A Jesse Howard, H O W A R D. 19 Q You're a resident of Fort Collins? 20 A Yes. 21 Q And you are employed at San Felipe's? 22 A Yes. 23 Q For how long have you been employed? 24 A Approximately three months. 25 Q What's your position there? 191 1 A I work with the security. 2 Q Okay. Were you working the night of the 3 incident in question, which was last Friday night? 4 A Yes, I was. 5 Q Were you working outside when the incidents 6 first came down inside the bar? 7 A Yes, I was. 8 Q Did you observe by yourself, on your own, 9 what transpired inside the bar at that time? 10 A No, I didn't see what happened inside. 11 Q When did you first become involved in this 12 incidents? 13 A I saw Said -- I work outside so I can watch 14 the fence and on the outside so nobody can jump in, 15 and also so that I can see the front of the fence. 16 At that time, I saw my manager, Said, and 17 the head of security, Rick, walking out the door 18 after a group of guys. So I watched for a minute and 19 I saw that they were exchanging words. So I came 20 around to follow them to back them up because I 21 didn't notice Ray at that time. 22 And so I just slowly walked over. I was 23 probably about 20 feet away, just keeping my eye on 24 it, because I had no idea what was going on. I 25 didn't know there was a fight inside. 192 1 Words were exchanged. The group of guys, 2 you know, started walking away again, and Rick and 3 Said kept telling them, "Somebody's got to come back 4 here. We have to find out what happened. Wait for 5 the cops to show up." 6 At that time, it got down right to the end 7 of the street, basically the sidewalk. And I walked 8 around the group of Hispanic guys. I still didn't 9 know what was going on until I heard Said say, "You 10 know, who swung the bottle, you know? We need 11 somebody, you know, to stay and talk to the cops, 12 and all that." 13 And at that time, there was some pushing 14 and shoving, and Rick grabbed a guy. And as Rick was 15 taking him down, he got him down on the ground, Ryan 16 and Ray were standing around Rick to make sure no one 17 would jump on Rick while Rick had the guy down on the 18 ground. And the group of guys started backing off 19 and the situation seemed like it was over, it was 20 under control. 21 And right then, the officer came running up 22 with his -- with the mace, and I saw him spray Rick 23 in the face. He turned, he got me. I turned around 24 and yelled to him, "You know, what are you doing? We 25 work here." He said, "I know, I know." 193 1 And things got a little restless at that 2 point. Everyone just got sprayed so everyone starts 3 running around. At that time, a kid that was 4 standing with all -- with all the Hispanic kids took 5 off down the street so I started chasing him, the 6 officer started chasing him. We chased him probably 7 about 30 yards and one of the customers, a guy who I 8 recognize from being in the bar actually ran by both 9 of us and caught the guy and cut him off, so that guy 10 cut left up on the sidewalk and started coming back 11 in the same direction that we just came from. 12 The officer fell. It was raining out that 13 night, or the ground was wet, and he wiped out. So I 14 cut back up on the sidewalk, confronted the guy. We 15 were face-to-face, and he stopped and he put his 16 hands up and he was like, "I didn't do anything, I 17 didn't do anything." I was like, "All right. Just 18 stay there." 19 And the officer got up, came flying over 20 and buried him. Got him down on the ground. So once 21 the cop had him, I walked back up to the original 22 spot where everything had happened. And it was the 23 time -- a ton of police were there by then and I just 24 grabbed people in the crowd who said they saw what 25 happened inside and brought them over to the cops to 194 1 get -- 2 Q So you were attempting to assist the 3 officer in running down and stopping the individual 4 that the officer was chasing? 5 A Right. 6 Q And apparently you, in fact, did that? 7 A Right. 8 Q No other questions. 9 MS. DAVIET: No questions. 10 CHAIRMAN DAVIS: Questions from the 11 authority? 12 MR. OLDHAM: Mr. Howard -- I'm sorry. 13 EXAMINATION 14 BY MR. COOPER: 15 Q I guess I didn't understand. I do have 16 one question. 17 You were standing out there, you saw the 18 officer come running up, he didn't say anything, 19 pulled out his mace, maced a group of people, took 20 off after the group. At this point, he still doesn't 21 know what's going on. 22 So, in other words, I'm hearing you testify 23 that he basically assaulted these people, they take 24 off running, obviously because they're upset now -- 25 A No, no. One guy took off running. Okay, 195 1 he takes off running after this guy. 2 Q He still doesn't know why he's chasing 3 him -- 4 A Who doesn't know why -- 5 Q The officer who just maced him, who just 6 runs. 7 A I don't know what the officer was thinking. 8 Q Well, he's thinking less than you were. 9 You were standing there and you said you didn't know 10 until you finally heard one of the other people 11 say -- 12 A Right. I was working outside. I didn't 13 see the fight inside. I followed -- 14 Q So the officer wasn't there either, right? 15 So he didn't see the fight? 16 A Right. 17 Q So he didn't know anymore than you did? 18 A Right. 19 Q And from what I'm hearing you say, he 20 didn't hear the comment about the fight? 21 A I would imagine he didn't. 22 Q So he just came up, arbitrarily maced the 23 group. One person takes off running, he runs after 24 him and falls. Somebody else catches the guy, the 25 officer gets up and then tackles him, still not 196 1 knowing why he's even chasing him. Is that your 2 testimony? 3 A Absolutely. 4 Q Okay. Thank you. 5 EXAMINATION 6 BY MR. OLDHAM: 7 Q How many people would you say were outside 8 at the time -- 9 A Bystanders? Or the group of guys that they 10 were talking to? 11 Q No, total people that had come out of your 12 establishment. 13 A There were -- out of our establishment, I 14 don't -- I don't know. There was -- I mean, honestly 15 I would say there was about 500 people standing 16 around, because it was right after last call and 17 people were coming out of bars all over Old Town. 18 Q 500? 19 A If -- I don't know. A lot of people. 20 There was a lot of people up there. 21 Q Did I hear you say that when the police 22 officer came up, he didn't say anything but he just 23 started macing people? 24 A I didn't hear the officer say anything. 25 Q And then you said, "What are you doing, we 197 1 work in here?" And officer says, "I know, I know." 2 A Right. That's actually in his statement 3 that he knew that we were -- that he knew and he knew 4 he got some of us. I'm sure he wasn't trying to get 5 us but he -- 6 Q Were you here when Mr. Mockler testified? 7 A I was -- I've been here for a little bit. 8 Q Did you hear Mr. Mockler say that the 9 officer didn't say anything at all throughout the 10 whole incident? 11 A Which guy was Mr. Mockler? 12 Q I thought you said you were here. 13 A I'm sorry. I've been here, but I don't 14 know everybody's name. 15 Q Okay. Mr. Mockler's the guy that makes a 16 living off the advertising. 17 A Did I hear him say that the officer said 18 nothing? 19 Q Uh-huh. 20 A I heard him say that. 21 Q So you wouldn't agree with Mr. Mockler? 22 A All I can say is that I didn't hear the 23 officer say anything. I didn't even really -- 24 because I had my back to the officer when the officer 25 was coming up, I was behind the group of guys. 198 1 Q Did you just tell us that the officer said, 2 "I know, I know"? 3 A He said that -- he had sprayed us and I 4 turned and yelled to him, "What are you doing? We 5 work here." And he said, "I know, I know." 6 Q So he said something. 7 A I thought you meant did he say something 8 beforehand. 9 Q Oh. 10 A I didn't know he was there until I saw mace 11 being sprayed. 12 Q Did the pepper spray have an effect on you? 13 A Yeah, my arm was burned a little. I got 14 some on my hand a little and my mouth. 15 Q So right away it started hurting? 16 A No, it didn't. 17 Q It didn't make your eyes water? 18 A No, I did -- did my eyes water a little 19 bit? No, it didn't. My arm started burning probably 20 a couple of minutes after it -- after the thing 21 happened. 22 Q Thank you. 23 CHAIRMAN DAVIS: Any additional questions? 24 MR. DOW: Said Zokhrouf. 25 CHAIRMAN DAVIS: Thank you very much. 199 1 How many more have you got there? 2 MR. DOW: I'm sorry? 3 CHAIRMAN DAVIS: How many more witnesses do 4 you have? 5 MR. DOW: I have this witness, who will be 6 very brief, he's the manager, then I have Rick, who's 7 the security person that was involved in the 8 altercation. I have -- he will have maybe 5 to 9 10 minutes of testimony. And then I have the one 10 owner and one manager. I imagine they will take 11 about 10 minutes each, to talk about training and 12 those kind of things, and that's it. 13 CHAIRMAN DAVIS: Okay. Maybe one of them 14 can tell us about the training and we'll take your 15 word for it. 16 SAID ZOKHROUF, 17 having been first duly sworn, was examined and 18 testified as follows: 19 DIRECT EXAMINATION 20 BY MR. DOW: 21 Q Please state your name and spell your last 22 name for the record. 23 A My name is Said, S A I D, Zokhrouf, 24 Z O K H R O U F as in Frank. 25 Q You're a resident of Fort Collins. 200 1 A Yes, I am. 2 Q How are you employed? 3 A I'm Employed with San Felipe's as assistant 4 general manager of the San Felipe's Fort Collins 5 store. 6 Q Speak up just a little bit. 7 How long have you been employed as the 8 assistant general manager? 9 A Approximately three months. 10 Q Were you present on the night in question, 11 last Friday? 12 A Yes, I was. 13 Q Where were you when the altercation first 14 occurred inside? 15 A I was on the side of the bar, by the DJ. 16 Q Okay. So you were close to -- close to the 17 altercation? 18 A Yes, I was. 19 Q What did you observe? 20 A I observed my doorman from the front door, 21 stepping in between an altercation. 22 Q Did you actually see the blow with the 23 bottle? 24 A No, I did not. 25 Q Do you see the victim afterwards? 201 1 A Yes, I did. 2 Q Briefly describe his condition. 3 A He was -- his face was covered with blood. 4 It was coming from the side of his head. 5 Q What did you do then? 6 A I -- there was a doorman arrived to the 7 scene. I heard people behind me, the group of guys, 8 say, "We need to get out of here." 9 I turned. They were exiting the building 10 fast. I followed. I needed somebody to be 11 responsible for who got hit in my bar. 12 Q Okay. That's why you followed them out? 13 A Yes, sir. 14 Q And then you and Rick tried to restrain 15 them until the police arrived. 16 A At first I asked, "I need somebody -- I 17 need to know who hit the guy inside the bar." 18 Nobody. They kept walking away. I said, "You are 19 going to tell me or I'm going to hold one of you guys 20 until the police arrived." 21 Q When the first officer arrived, did you 22 point out to the officer the culprits and tell the 23 officer generally what had happened? 24 A No. I -- I told the second officer. 25 Q All right. Did you get sprayed by the 202 1 first officer? 2 A No, sir, I did not. 3 Q Did you have an occasion to talk with 4 Officer John Pino on Tuesday of this week? 5 A Yes, I did. 6 Q About operations at San Felipe's? 7 A Yes, we did. 8 Q What did Officer John Pino tell you 9 relative to your management and operations at 10 San Felipe's? 11 A He said we -- from opening, we have done 12 tremendously better. 13 Q Did he mention anything about the incident? 14 A He suggested that the next time I'd be a 15 better witness, that I should follow them to their 16 vehicle, let them get to their car, take a license 17 number and then contact the police rather than to 18 detain them, because that invites -- I commit myself 19 to a possible physical altercation. 20 Q And are you responsible for -- or partly 21 responsible for training staff? 22 A Yes, I am. 23 Q You've heard the testimony about the 24 policies in place relative to any partial or total 25 nudity or sexual activity in the bar; is that 203 1 correct? 2 A Yes, sir. 3 Q Have you ever personally witnessed that? 4 A I've witnessed people getting ready to do 5 that. 6 Q Okay. What did you do? 7 A We stopped them. All our door men are 8 equipped with flashlights. When you're on the bar, 9 you're very visible to everybody in the room. 10 Everybody in the room doesn't watch, we do, that's 11 our job. I flashlight them in the eyes. You look at 12 me, I say, "No, put your shirt down," or "Cover 13 yourself," or "Don't do it." 14 If they decide to go past this, they're 15 immediately approached. I mean, it's a given, that 16 they're approached by one of the door staff, or even 17 manager, or even a bartender and told, "Please get 18 off the bar and don't do that anymore." 19 Q Is it fair to say that San Felipe's, at 20 least after 9:00 or 10:00 at night, is primarily a 21 college bar? 22 A Yes, it is. 23 Q And was last weekend the first weekend that 24 the CSU students were back in town for the -- 25 A It was actually the second weekend. 204 1 Q Excuse me? 2 A Second week, it seems. 3 Q No other questions. 4 CROSS-EXAMINATION 5 BY MS. DAVIET: 6 Q As assistant general manger, are you 7 familiar with any promotions or things of that nature 8 that San Felipe's will do to attract and encourage 9 business? 10 A Yes. 11 Q Is it the practice of San Felipe's to keep 12 things such as T-shirts or those kind of items, on 13 hand to use as tokens or prizes or promotional items? 14 A They're not as prizes, we -- they're 15 give-aways. We throw them from the bar to -- into 16 the crowd. 17 Q So you have quite a few of those on hand to 18 use for give-aways? 19 A Yes, ma'am. 20 Q Were you here to hear the testimony of 21 Mr. Justin Houstoun earlier, a former employee? 22 A Uhm-hum. 23 Q Did you hear his testimony about the girls 24 dancing topless on the bar? 25 A Yes, I did. 205 1 Q And the T-shirts that you keep on hand for 2 give-aways, I would assume those are the same 3 T-shirts that he appeared to be referring to that 4 were given to those girls? 5 A You're assuming that, yes. 6 Q So would that be accurate, those are the 7 T-shirts. 8 A No, because I wasn't here when Justin was 9 working for San Felipe's, so I don't know. 10 Q What types of promotions are you familiar 11 with that San Felipe's has had as a practice for 12 bringing customers in? 13 A In what sense? There's all kinds of 14 promotions. 15 Q Well, 50 years ago when I was in college, 16 it was nickel beer night. I don't know what it is 17 now. Do you have -- 18 A We do a $2 Corona, for example, on 19 Thursdays, Coronas and Pacific Coast from 9:00 p.m. 20 until close. 21 Q And, in fact, San Felipe's is the only bar 22 around that serves Pacific Coast, is that right? 23 A I'm not sure. I don't sell Pacific Coast, 24 ma'am. 25 Q What -- are you familiar with a promotion 206 1 known as a White Trash Beach Bash? 2 A Yes, I am. 3 Q And what is that? 4 A All that is, is that we -- it hasn't 5 happened yet, so I couldn't tell you what the actual 6 intent of it is. We were bringing in six tons of 7 sand to put on our patio. We were putting up patio 8 furniture, we're doing the worst tan contest, 9 we're -- it's $2 Coors Lite drafts, which comes in a 10 12-ounce plastic cup. 11 Q You're bringing in that much sand and you 12 don't know at this point what the intent of this is? 13 A It is to bring people in, of course, the 14 promotion. 15 MS. DAVIET: At this point, I would like 16 to have an exhibit marked. 17 Q (BY MS. DAVIET) I would like to present 18 you with what's been marked as Exhibit 1 for 19 identification. 20 And I apologize to the authority, I only 21 have one copy and I'll pass it around after we get 22 through with this portion. 23 Would you tell me if the information in 24 that item appears to be familiar with you? 25 A Yes. 207 1 Q What does that appear to be? 2 A What does it -- 3 Q What does it appear to be, for the record? 4 A Our ad for White Trash Beach Bash. 5 Q And what publication is that ad in? 6 A The Collegiate -- Rocky Mountain Collegian. 7 Q Rocky Mountain? 8 A Collegian. 9 Q Is that a newspaper that's directed towards 10 college students? 11 A Yes, it is. 12 Q And what date does the ad indicate that the 13 White Trash Beach Bash will take place? 14 A Sunday, September 5th. 15 Q And that indicates a bikini contest; is 16 that correct? 17 A Yes, it does. 18 Q And what else does that ad indicate? If 19 you would tell what items are listed as part of the 20 promotion. 21 A $100 worst tan contest, a T-shirt, and 22 other give-aways and $2 pints of Coors Lite, 23 9:00 p.m. till closing. 24 Q So that, again, is a fairly common 25 practice, the T-shirts are given away for this sort 208 1 of thing? 2 A The -- they're give away T-shirts. You 3 don't have to do anything. We give them away. 4 Q Okay. So what is the prize for the bikini 5 contest. 6 A $300 cash. 7 MS. DAVIET: At this time, I'd move for 8 admission of Exhibit 1. 9 CHAIRMAN DAVIS: Okay. That will be 10 accepted. 11 MS. DAVIET: I believe that's all the 12 questions I have at this time. 13 THE WITNESS: Okay. 14 EXAMINATION 15 BY MR. MORRIS: 16 Q I have one question. 17 A Yes, sir. 18 Q Mr. Zokhrouf, that beach party hasn't 19 happened yet? 20 A No, sir. 21 Q Okay. And you said you got people's 22 attention with flashlights. Now, when you move all 23 of the tables out and it's the bar time, I guess, 24 after 9:00, how dark is it? Do you turn the lights 25 down lower than they were before? 209 1 A Yes, we do. 2 Q And so then how dark is it -- 3 A It's not -- 4 Q -- to get somebody's attention with -- 5 A It -- it's dark enough to where it works 6 because the -- that's what we chose as our 7 communication utensils. It works. We have Christmas 8 lights on the ceiling that are left on. Other than 9 that, that's pretty much it. It's Christmas 10 lights -- we have Christmas lights on the ceiling. 11 That's the only lights that we have left after 12 9:00 p.m. 13 Q Thank you. 14 CHAIRMAN DAVIS: Additional questions from 15 the -- 16 EXAMINATION 17 BY MR. COOPER: 18 Q You're the assistant general manager? 19 A Yes, sir. 20 Q And as such, do you know how many 21 departments are in the business? 22 A Yes, sir. 23 Q How many are there? 24 A We have a kitchen department, we have a 25 wait staff department, we have a bar department -- I 210 1 mean, bar -- security department. Three 2 departments -- four departments, sorry. 3 Q Okay. Do you know what the policies are 4 for all four departments? 5 A I sure hope so, yes. 6 Q What is the policy for the front desk 7 staff -- or the front door staff? Can they leave the 8 business or not? 9 A No. 10 Q So all the people that -- 11 A Depending -- 12 Q -- left violated policy? 13 A No. If an altercation stems outside of our 14 front doors, that has nothing to do or isn't in 15 direct relations to us, it has -- it's not -- we -- 16 policy states that we don't approach. 17 We will -- what we try to do is take -- if 18 we have an altercation outside -- inside, try to take 19 it outside so it doesn't involve other people and it 20 doesn't jeopardize the security of our patrons. 21 Q Okay. When do you decide you should call 22 the police? What point, as was said earlier? 23 A When do we call the police? 24 Q Yes. 25 A If damage has been done, or physical 211 1 property damage, anything in that sort, we usually 2 call the police. We usually don't have -- that's 3 pretty much it. If we need -- 4 Q So if the bar is damaged, you call the 5 police. 6 A If somebody breaks a mirror, for example, 7 which hasn't happened, I would call the police. 8 Q Okay. But if somebody hits somebody over 9 the head with a beer bottle, you don't call the 10 police? 11 A The police were called. 12 Q How do you know that? Did you call them? 13 A I -- when -- I was dealing with the 14 situation, there was a patron -- 15 Q Did you call the police? 16 A I did not call the police. 17 Q Did you tell somebody to call the police? 18 A Yes, I did. 19 Q Who did you tell? 20 A The patron that was right next to me using 21 a cellular phone. 22 Q A patron? 23 A Yes, sir. 24 Q Is that your -- 25 A It's not our policy, but at that particular 212 1 time it was the best suitable answer to getting the 2 police summoned. 3 Q And you don't have a policy that dictates 4 you should be telling bar staff to do that? 5 A We do. 6 Q So you didn't follow policy. 7 A I was -- I was not inside my establishment 8 to where I could do that. It was more convenient for 9 me to ask the person next to me, and they had no 10 problem with it. 11 Q Do you know if they actually did call the 12 police? 13 A Yes, they did. 14 Q They, in fact, did call the police. 15 A She told me, "I have called them, they're 16 on their way." 17 Q What's the policy for the bar staff? 18 A In what sense? 19 Q Leaving to help the front door -- the front 20 door department? 21 A Ray acted as a backup. 22 Q Okay. But that's not the question. The 23 question is: What is the policy for the bar 24 department as it relates to backing up the front door 25 department? 213 1 A There is no such policy, as a backup 2 policy -- 3 Q So -- 4 A -- so . . . 5 Q So they're not taught anything about that, 6 or what are they taught? 7 A Can you elaborate on the question? 8 Q I guess my question is: Earlier we were 9 told that each department learns their own department 10 and that's it. 11 A Uhm-hum. 12 Q And you said that there is no 13 cross-training; is that correct? 14 A There is, because every day we deal with 15 something and -- each department works together as 16 one unit. We are one bar, we are one restaurant, we 17 work together. 18 There's times we have to work together, and 19 sometimes be positive, sometimes be negative. If 20 we're singing happy birthday and a bartender comes 21 out from behind the bar, we -- they're leaving their 22 area of work, and they're helping a server sing 23 Happy -- 24 Q Did you just hear the rest of the testimony 25 from the staff? 214 1 A Yes, I did. 2 Q Did you hear them say they don't know what 3 the policy is? 4 A Yes, I did. 5 Q Okay. So are they trained? Whose 6 responsibility was it to train these people? 7 A I guess it's up to the management. 8 Q So is it a fair assumption they weren't 9 trained? 10 A It is a fair assumption. 11 Q Do you have a policy they shouldn't be 12 leaving the bar? 13 A Yes. 14 Q Is it your responsibility to enforce that 15 policy? 16 A Yes, it is. 17 Q That's all I have. 18 CHAIRMAN DAVIS: Additional questions from 19 the authority? 20 EXAMINATION 21 BY MR. OLDHAM: 22 Q How crowded was the bar the night of the 23 28th? 24 A We were at occupancy. 25 Q And how many people were outside the bar 215 1 that had left your establishment, do you think? 2 A The incident took place -- there was a lot 3 of people outside the bar when the incident took 4 place. 5 Q 100? 6 A Hard to say. I was focusing on the 7 incident. 8 Q The police officer reacted inappropriately, 9 in your opinion? 10 A I believe so. 11 Q Okay. What would you have him do? 12 A Nothing. He's the trained guy, he -- he 13 handled it the way he should have handled it. And we 14 thought we were doing our job. The situation was -- 15 we had one person -- 16 Q You've been the manager since what point in 17 time -- or assistant general manager, I'm sorry? 18 A Since June. 19 Q Since June? 20 A Yes, sir. 21 Q Okay. How many fights in the bar since 22 you've been the assistant general manager? 23 A Altercations or fights? 24 Q What's the difference? 25 A Two people cussing at each other is an 216 1 altercation. 2 Q Fights? 3 A I would say about three to four. 4 Q How many times did the police get called? 5 A We've always -- a lot of times we did have 6 police present because they are in -- and they do 7 their patrols outside, and -- and at the end of the 8 night they're always outside the bars that are in 9 that -- in our area. So a lot of times they're 10 within the vicinity, we didn't need to call. 11 Q How many times out of the four times that 12 there were fights? 13 A I would say three out of the four times. 14 CHAIRMAN DAVIS: Additional questions from 15 the authority. 16 Thank you very much, sir. 17 MR. DOW: Rick Clayton. 18 RICK CLAYTON, 19 having been first duly sworn, was examined and 20 testified as follows: 21 DIRECT EXAMINATION 22 BY MR. DOW: 23 Q Please state your named and spell your last 24 name. 25 A My name is Richard Clayton. Last name 217 1 spelling of C L A Y T O N. 2 Q How are you employed? 3 A I'm the security supervisor at San Felipe's 4 Cantina. 5 Q Do you have -- how long have you been 6 employed in that capacity? 7 A Since the -- about the third week in April. 8 I can't give you the exact date. 9 Q Prior to that, do you have experience as a 10 uniformed police officer? 11 A Yes, I do. 12 Q Briefly, what is that experience? 13 A Four years with the Black Hawk Police 14 Department. 15 Q And what were your duties in Black Hawk, 16 Colorado? 17 A To enforce the city, county, state laws, 18 gaming laws, and liquor laws. 19 Q Were you a DUI-trained officer? 20 A Yes, sir, I was. 21 Q And were you responsible for enforcement of 22 alcohol laws and regulations with respect to the 23 casinos in Black Hawk? 24 A Yes, I was. 25 Q Were you present on the Friday night when 218 1 the incident in question occurred? 2 A Yes, I was. 3 Q Where were you when it occurred? 4 A I was standing outside observing another 5 security employee, Ryan, checking IDs. 6 Q Okay. That was the Ryan who testified 7 earlier tonight? 8 A Correct. 9 Q Could you briefly tell the board what you 10 observed, what happened at that time? 11 A I was basically -- it was an -- I was 12 training Ryan to make sure that he could observe 13 intoxicated individuals coming into the casino, 14 because when you get hit at the last half an hour, 15 people are trolling from one bar to the next, they're 16 barhopping. 17 So my job at that point in time was to make 18 sure that he was checking IDs properly, more than 19 anything else, but was to see if he could catch 20 intoxicated individuals coming into our establishment 21 before last call. 22 Q Do you remember the six young Hispanic 23 individuals coming in at that point? 24 A Yes, I do. 25 Q Did you have a chance to observe them? 219 1 A Yes, I did. 2 Q What were your observations? 3 A They were standing in line about five or 4 six back. We were on a one-in-one-out basis, so I 5 was watching them because they were chattering. They 6 were having fun. Looks like they were a group of 7 individuals that were just a bunch of friends. 8 Listening to them -- one of the things I do 9 is I listen to them. I listen to find out if they're 10 telling me -- what bar they were at, who they are 11 with, how much they've had, what their intentions 12 are. 13 What I found was there was no slurred 14 speech. They were standing there, nobody was 15 swaying, there was no indication to me whatsoever 16 that these individuals were intoxicated. 17 Q Were they carded and then admitted? 18 A Yes, they were. 19 Q And how long after that did the incident 20 occur? 21 A Within approximately, I would say, 5 to 22 10 minutes. 23 Q Is that around last-call time? 24 A Correct. 25 Q What time is that? 220 1 A I believe that night it was between 1:25 to 2 1:30. 3 Q You then became aware that there was an 4 altercation of some type inside. Did you actually 5 see the altercation inside? 6 A No, I did not. 7 Q Okay. Tell us briefly what you did at that 8 time. 9 A Well, after last call was announced on the 10 PA system, which is loud and clear, again, I was kind 11 of in the training mode. I turned around to Ryan. I 12 said, "Okay, the next thing you do is nobody else 13 comes in the bar. You need to close one of the doors 14 and keep one open so people can exit out but nobody 15 else can come in." 16 When he turned around to shut the door, 17 automatically he took off into the bar. I followed. 18 Q All right. What did you do then? 19 A At that point in time, to my right, as soon 20 as you enter, there was a white male laying on the 21 ground, and one of our off-duty security employees 22 was covering him as to protect him. I noticed there 23 was a fair -- large amount of blood on the floor. 24 And to my right, I noticed that the 25 Hispanic males that we had admitted earlier was being 221 1 restrained and three or four of them were quickly 2 exiting the building. 3 Q And did you then become involved in the 4 exit procedure for those individuals? 5 A Not immediately. My first concern was the 6 white male on the ground. Noticing the blood on the 7 floor, and not knowing what took place, I tapped Paul 8 on the shoulder, who was the off-duty security 9 employee covering him. I told him who it was. He 10 got up. 11 I look at the guy's face. I knew who the 12 patron was because he's a regular there. I quickly 13 looked at his face, and looked -- he had a deep 14 laceration to his forehead, and he was bleeding 15 profusely from his face. And I quickly asked, "What 16 happened?" 17 And a female patron said, "He was hit over 18 the head with a bottle." At that point in time, I 19 heard Said say, "Rick, outside." And I followed him 20 outside. 21 Q Were you involved in -- outside in 22 attempting to restrain the individuals involved in 23 that? 24 A Yeah, I was. As I was walking out, I 25 yelled to the bar -- I didn't yell to anybody in 222 1 particular, I yelled to the bar, to call the -- call 2 an ambulance. And I said, "I'm outside with Said," 3 and I walked out. And at that point in time, Said 4 communicated with me that we need to find out which 5 one of the individuals hit the patron with the bar -- 6 with the bottle. 7 Q Did you determine that? 8 A No, I did not determine who the exact 9 individual was. All I know is I observed an 10 individual with a bottle in his right hand that was 11 busted. And putting one and one together, I assumed 12 that that was probably the individual that did it, 13 but was not for, in fact, certain. 14 Q Were you attempting to detain these 15 individuals until the FCPD arrived? 16 A We made a judgment call on the way there. 17 We were, in fact, walking towards the individuals 18 telling them to stop, we wanted to talk to them, that 19 somebody was going to be accountable for what 20 happened inside when the cops get here, because we 21 knew at that point in time the cops were going to be 22 called. 23 And we told them to stop. They wouldn't 24 stop. On the way to talking to these individuals, to 25 get closer to find out if they were going to 223 1 cooperate with us, Said looked at me and said, "We 2 got to detain these people until the cops show up." 3 Q And then you did that? You took one down 4 and physically detained who you thought was the 5 culprit? 6 A No, not immediately. We gave -- we tried 7 to reason with them as quickly as it was, and 8 abruptly as it was, we did try to reason with them. 9 We said, "You've got to stay. Somebody's got to talk 10 to the cops." 11 And their whole response was to flip us 12 off. And so I told them, I said, "Well, in that 13 case, if you're not going to cooperate, we're going 14 to detain one of you guys so that the officers can 15 find out from you who all your names are, so that 16 this can be resolved." 17 Q And then you physically restrained one 18 individual? 19 A Yeah. They started walking away at a brisk 20 pace and I made the decision to hold on to one of 21 them until the cops got there. 22 Q During the time that you were restraining 23 one individual, were you struck by one or more of the 24 others from behind? 25 A A tug of war ensued between the two -- 224 1 between me and the five other guys. It was actually 2 an after-thought kind of weird situation, where 3 you've got five guys on one end, me on the other. I 4 was getting tired of the tug of war, and so I 5 had made a decision to take the guy to the ground 6 and to hold him there with my body weight until the 7 law enforcement officers arrived. 8 When I did that, as soon as I took him to 9 the ground, I was struck in the back of the head 10 twice with a closed fist by one of the other Hispanic 11 males. 12 Q Shortly afterwards did the first officer 13 arrive on the scene? 14 A Within, I'd say, less than a minute. 15 Q Okay. And did the policeman announce 16 himself to you? 17 A He didn't announce it to me. If he did 18 announce it, I was -- I did not hear him. I was -- 19 my main focus was not listening for an officer, my 20 main focus was the person that I had beneath me and 21 my immediate surroundings, because at that point in 22 time there was an immediate threat, so I wasn't 23 listening or observing that. 24 Q Were you maced by that officer? 25 A Yes. 225 1 Q Did you point out to the officer who had 2 the bottle? 3 A Yes, I did. 4 Q And then the officer left to take off after 5 that person? 6 A Yeah. I was on the ground and -- 7 Q You had the person secured? 8 A I had him secured, and Officer Smith, who I 9 know and I've known -- gotten to know, a very 10 well-respected officer, he turned around and looked 11 at me and said, "Sorry." I said, "You" -- I said, 12 "You need to go after that guy right there, running 13 north -- running that way, because he's the one 14 that's got the bottle in his hand and hit the guy 15 over the head with a bottle." He said, "Okay," and 16 took off. 17 Q Okay. About how long, then, was it before 18 the major portion of the force arrived? 19 A There was three patrol cars that rolled up 20 on scene within, I would say, less than a minute. 21 Q Did most of them arrive after it was 22 basically over? 23 A Yes, the bulk of them did. 24 Q And at that time, were there others in the 25 crowd emptying from the bars in Old Town that were 226 1 mingling around and watching what was going on? 2 A Yeah. It was last call. Our -- our normal 3 policy is to, if a -- altercation occurs outside our 4 establishment that involves our patrons, because you 5 get the looky-loos, the people that want to watch, 6 we immediately -- what I've trained my security staff 7 to do -- and, unfortunately, Ryan wasn't trained yet, 8 because he was just rehired -- is to immediately shut 9 the doors to prevent them from coming out. That 10 didn't happen for two reasons. 11 One, because he was involved. Two, he 12 wasn't trained. And also the third fact that it was 13 last call, people were exiting the building. By the 14 time this all cleared, we had people all over the 15 place. 16 Q Was there any ongoing fight when Sergeant 17 Whitson arrived? 18 A The only ongoing fight that took place 19 after the sergeant arrived, after I had -- because I 20 spoke to him, he told me to go ahead and fill out a 21 report, I was filling out the report, when I noticed 22 to my left, I saw an officer just run by me, and to 23 my left, right east on Walnut behind -- right next to 24 their substation, actually, two white males were 25 fighting one another, and one officer took off and 227 1 another one -- 2 Q Unrelated to this incident? 3 A Totally unrelated to this. At least 4 five -- I would say at least five minutes later. 5 Q Okay. Were you with Officer Whitson during 6 the portion of the time that he was there on scene? 7 A I was within probably 5 to 10 feet of the 8 proximity that the sergeant was. 9 Q Did you have an opportunity to review 10 Whitson's report before this hearing? 11 A Just vaguely. 12 Q Okay. In connection with your DUI 13 enforcement, have you ever been involved -- are you 14 aware of police targeting certain operations that are 15 deemed problem operations by officers? 16 A Yes, I have. 17 Q Has that happened with some frequency 18 related to bars, casinos and so forth? 19 A If they're trouble spots, yes, they are. 20 Q Nothing further. 21 CHAIRMAN DAVIS: Cross. 22 CROSS-EXAMINATION 23 BY MS. DAVIET: 24 Q Mr. Clayton, how long has it been since you 25 were employed as a police officer? 228 1 A Since January of '96. 2 Q And you're not employed as a police officer 3 now? 4 A No, ma'am, I'm not. 5 Q You said that Said said to you, "Rick, 6 outside," and you then instructed somebody to call an 7 ambulance and you went outside to talk to him; is 8 that right? 9 A Uhm-hum. 10 Q You, yourself, did not call an ambulance? 11 A No. 12 Q As a former police officer, you, yourself, 13 did not call the police either; is that correct? 14 A That's correct. 15 Q You didn't tell any of your coworkers to 16 call the police, right? 17 A No, I did not. 18 Q So to your knowledge, no one working for 19 San Felipe's called the police or was instructed to 20 do so? 21 A They were -- at one point in time, I 22 instructed another security employee, while I was -- 23 when the tug of war ensued, to get the police because 24 I -- not knowing if they had been called or not, I 25 made the decision if they hadn't, now's a good time 229 1 to do it. Better late than never. 2 So I did instruct one of the security 3 employees during the tug of war to go ahead and find 4 them, and they went down to the substation. 5 Q Okay. And has it been your observation 6 since you've worked at San Felipe's that the 7 substation is open at that hour of the day? 8 A It's -- it's a hit and miss. Those 9 officers are out there, they've got a lot of things 10 to do out there, a lot of bars in a close proximity. 11 Sometimes they're in there doing reports, 12 sometimes they're walking -- you might catch one 13 walking by at the exact moment you need them. 14 Sometimes they're there at the substation. Sometimes 15 you can't find them because they're off doing other 16 things. 17 Q So it's hit and miss, or they might be 18 there working on reports or they might not, so why 19 not call 911? 20 A Well, that's something that should have 21 been done. 22 Q I believe that's all I have. 23 CHAIRMAN DAVIS: Questions from the 24 authority? 25 EXAMINATION 230 1 BY MR. COOPER: 2 Q I guess on one -- one question that I do 3 have -- I actually have several, but one question I 4 have is: Why did you feel like it was your 5 responsibility to find out who hit the patron? Why 6 didn't you feel like that was a law enforcement 7 responsibility and call? 8 A Because one of the -- it's like anything 9 else, it's a judgment call. And when somebody's hit 10 in the head, with a deep laceration, with a bottle, 11 it's second degree assault. You got serious bodily 12 injury. I made a decision at that point in time to 13 detain one of the six individuals until a 14 law-enforcement officer could arrive. 15 Q Okay. So you had a medical emergency 16 there, you're trained to deal with that and you 17 didn't do anything about that -- 18 A No, one -- 19 Q -- you -- 20 A No. Once I took a look at that guy and 21 knew that everything was okay, other than the fact he 22 had a deep laceration to the skull, I knew he wasn't 23 going to die on me and I knew that the ambulance was 24 going to be called because I instructed them to do so 25 going out the door, then I focused from one issue to 231 1 the next. 2 Q Is it your responsibility to train your 3 door people on what they should and shouldn't do? 4 A That is correct, that is my job. 5 Q Do you train your staff to observe and be 6 able to identify people and record what happens? 7 A That is correct, they do. 8 Q Okay. Where was Jesse Howard in 9 relationship to you out there? 10 A How was he related to me? 11 Q No, where was he standing in relationship 12 to you when you were holding this individual? 13 A I have no idea. 14 Q Okay. No other questions. 15 EXAMINATION 16 BY MR. MORRIS: 17 Q I have one quick question. You said that 18 at the end of the night, you were in a one-in-one-out 19 situation. 20 A That's correct. 21 Q And was that the situation when the seven 22 individuals in question entered your bar? 23 A That's -- yeah, that was correct. 24 Q And then the statement earlier from the 25 bartender was he served seven drinks at once? 232 1 A I would assume that. I wasn't in there. 2 Q Okay. So I guess what I'm trying to figure 3 out here, is if you guys were doing one-in-one-out, 4 how did seven get in all at once? 5 A Because what happens is you may have a 6 group of people that leave. I mean, sometimes one 7 person walks out, sometimes 15 walk out. And if 8 15 walk out, we have a counting -- one-in-one-out 9 counter. And what we do is, based on that, if 15 10 walk out, 15 go back in. We replace body with body. 11 Q Okay. Thanks. 12 EXAMINATION 13 BY MR. OLDHAM: 14 Q Mr. Clayton, when you were outside and 15 Officer Smith came on to the scene, did he act 16 inappropriately? 17 A Mr. Oldham, that's a hard question to 18 answer, because being in his shoes at one point in 19 time, each -- each -- each situation you come up on 20 is a different situation and you make the best 21 judgment that you could. 22 My judgment, my decision what I may have 23 done, may have been different from somebody else. 24 Whether it was right, wrong, I couldn't tell you. 25 Q The flavor that I've gotten from some 233 1 people was that it was inappropriate for him to chase 2 after somebody, and you've kind of explained, at 3 least one reason why he did. 4 A Uhm-hum. 5 Q Which was pretty much at your direction? 6 A Yup. And that's exactly how it happened. 7 Without -- without any leeway, that's what -- that's 8 what happened. 9 Q Okay. When you were a police officer, did 10 you ever have occasion to use your mace cans? 11 A We didn't carry mace up there. I was 12 trained with it in the Academy. We were all sprayed 13 with it. Being sprayed with it again brought back 14 old memories. But other than that, I have very 15 little experience with it. 16 Q Okay. Since you've been there with 17 security -- well, how often do you work, let's -- 18 A I work on busy nights, which are Tuesday 19 and Thursday through Saturday. And I'm a full-time 20 student. 21 Q So you work, how many hours would you say, 22 on those busy nights? 23 A I work approximately 5 to 5-1/2 hours a 24 night. 25 Q How many fights have occurred since you've 234 1 been there? 2 A I can tell you exactly how many because 3 every time we go hands on with somebody, I do an 4 incident report on my computer at home. And I copy 5 it, bring the copy, and I also keep it on my personal 6 computer, as on a backup file. And there's been four 7 actually hand-on fights that we've actually been 8 involved in, several altercations, but there have 9 been four fights. Of those four fights, I checked 10 today, three of them have involved law enforcement 11 at one point in time. 12 Q You mean the law enforcement officers was 13 in the fight? 14 A No. In other words, they were either 15 called, came up on scene, or somehow, some way, they 16 were involved in the -- in the -- either the 17 beginning, middle, or end of the process of the 18 fight. 19 Q Thank you. 20 A Uhm-hum. 21 CHAIRMAN DAVIS: Additional questions? Do 22 you have any questions of this -- 23 MR. DOW: No. 24 CHAIRMAN DAVIS: Thank you very much, sir. 25 MR. DOW: Jay Gonzalez. 235 1 JAY GONZALEZ, 2 having been first duly sworn, was examined and 3 testified as follows: 4 DIRECT EXAMINATION 5 BY MR. DOW: 6 Q State your name, please, and spell your 7 last name. 8 A Jay Gonzalez. G O N Z A L E Z. 9 Q How are you employed? 10 A I'm general manager of San Felipe's 11 Cantina. 12 Q And are you also a part-owner? 13 A Yes, sir. 14 Q And how long have you been so engaged? 15 A At this location, since it opened. 16 Q All right. And before that, you were with 17 San Felipe's -- 18 A Yes, we just had our second anniversary at 19 the other location, and we formed the company about a 20 year before that time. 21 Q And the other location's in Flagstaff, 22 Arizona? 23 A Yes, sir. 24 Q And now, you were not present last Friday 25 night when this incident occurred -- 236 1 A No, sir. 2 Q -- is that correct. 3 But you are generally responsible, as 4 general manager, for training and compliance efforts? 5 A Yes, sir. 6 Q Do you recall, back in the spring, 7 approximately March of this year, when we all met 8 with Officer Johnson to discuss certain concerns and 9 address those concerns with the police department? 10 A Yes, sir. 11 Q You have seen the two letters, Exhibit A 12 and B, that were previously introduced? 13 A Yes. 14 Q And did you try to implement the 15 suggestions that Officer Johnson had? 16 A Yes, sir. 17 Q And since that time in April -- let's go 18 back to the spring. Around that time, did you have 19 an occasion to discuss San Felipe's operations with 20 Officer Whitson, who testified tonight? 21 A Yes. 22 Q Did Officer Whitson say anything to you 23 about his attitude towards your operation? 24 A Yes. He said he was disappointed with it. 25 Q What else did he say to you? 237 1 A He -- he mentioned that, "This was not 2 Mexico, it's Fort Collins, and we don't do things 3 like they do," was the statement he made to me. 4 He also expressed his displeasure in what 5 we were doing. 6 Q Have you, since that time in the spring, 7 had other occasions to meet with FCPD personnel 8 relative to operations at San Felipe's? 9 A Formally on many occasions, also informally 10 as the officers come by our place. 11 Q And have they given you suggestions as to 12 things that you should or should not do with your 13 operation? 14 A Correct. More towards the spring than any 15 time during the summer. In the spring definitely. 16 Q Have you attempted to implement those 17 suggestions? 18 A We have. 19 Q Can you give the board any examples of 20 suggestions from FCPD that you have implemented? 21 A Well, the -- the monitoring of the -- first 22 off, the -- we had a fish bowl margarita that was a 23 product we had at our other location, and it was a 24 22-ounce margarita. 25 And at the other location, two people would 238 1 drink it. For some reason, at this location, people 2 decided that they were going to drink them by 3 themselves. They said that was a problem so we 4 immediately took that off our menu and did not use 5 it. 6 Q Did you have an opportunity to talk with 7 Officer John Pino of the FCPD earlier this week on 8 Tuesday? 9 A Yes, we did. 10 Q And that discussion involved management and 11 operations at the San Felipe's? 12 A Correct. 13 Q What did Officer Pino tell you this Tuesday 14 relative to your operations? 15 A We discussed the situation on Saturday. He 16 asked us our side and what happened. I discussed our 17 incident reports and offered him copies of them and 18 we -- he discussed -- he said he had his information 19 from his officers but not from any of the other 20 officers. 21 He also stated that we were doing a good 22 job in our operations and we had through the summer. 23 Let's not make this incident reoccur, let's take 24 action now to stop -- because the students were 25 coming back -- to stop any further problems that we 239 1 might have. 2 Q Did you also have food specials in addition 3 to drink specials? 4 A Yes, we do. We run a daily food special 5 with a two-for-one combination for the students on 6 Tuesday night. 7 Q What's the approximate percentage of your 8 sales of food versus beverage? 9 A 75/25. 10 Q 75? 11 A 25. 12 Q 75 what? 13 A Of liquor to 25 percent food. 14 Q Do you do lunches? 15 A Yes, we do. 16 Q What's your lunch crowd like? 17 A Business people. 18 Q Downtown people -- 19 A Weekends we get the families that roll in 20 that are downtown to shop. 21 Q Do you get family -- the family crowd for 22 early evening dinners? 23 A Yes. Every day of the week. 24 Q Is it fair to say that after 9:00 or 10:00 25 at night, it more or less converts to a college or a 240 1 young person's bar? 2 A Yes. 3 Q That's all I have. 4 CHAIRMAN DAVIS: Cross? 5 CROSS-EXAMINATION 6 BY MS. DAVIET: 7 Q I think you mentioned that it's your second 8 anniversary in Flagstaff; is that right? 9 A Yes, ma'am. 10 Q Do you still have the fish bowl margarita 11 in Flagstaff? 12 A At that location, yes, ma'am. 13 Q Is the Flagstaff location, overall, run 14 pretty much similar to the one in Fort Collins? 15 A Yes, ma'am. 16 Q And, in fact, at the Flagstaff location, 17 you, in the past two years, have had a great number 18 of violations and problems involving police; is that 19 right? 20 A No, ma'am. 21 Q So if the Flagstaff Police Department were 22 to provide information to show that you have had 23 problems and violations with them continuously, it 24 would be your position that that information is 25 inaccurate or false? 241 1 A I wouldn't know of any problems with the 2 Flagstaff. 3 Q What is your interest in that Flagstaff 4 operation? Are you part-owner? 5 A Yes, ma'am. 6 Q And are you generally kept apprised of what 7 and how business is doing? 8 A Yes, ma'am. 9 Q But if they've had numerous police contact 10 problems, you would not know about that? 11 A No, I would know about that. 12 Q So if those things have happened, you mean 13 you would know about them? 14 A Yes, ma'am. 15 Q So if a number of those things have 16 happened and you don't know, would it be your 17 position -- your position that those things didn't 18 happen? 19 A To my knowledge, ma'am, there is no 20 citations at all on that license. 21 Q Thank you. 22 A Yes, ma'am. 23 CHAIRMAN DAVIS: Any questions from the 24 authority? 25 EXAMINATION 242 1 BY MR. MORRIS: 2 Q I have one. Earlier your testimony -- the 3 police cited numerous people outside your 4 establishment as being -- you know, to be, for lack 5 of a better term, falling-down drunk. 6 One, have you ever noticed anybody outside 7 your establishment or in your establishment that is 8 physically intoxicated -- 9 A Mr. Morris, on the -- when we opened up, we 10 had a problem with this. We took steps to alleviate 11 it. I believe there was a problem at the beginning. 12 During the summer, and over the -- since -- towards 13 the end of May, I even think a little before that -- 14 Q My question just deals with Friday, the 15 28th of August. 16 A I wasn't there, sir, sorry. 17 Q So you weren't there? 18 A No, sir. 19 Q Does it concern you? 20 A Yes, sir, very much so. 21 Q That's it. Thanks. 22 EXAMINATION 23 BY MR. COOPER: 24 Q What action did you take, if any, to 25 eliminate the San Felipe's crawl? 243 1 A Mr. Cooper, I've never heard of that 2 before, ever, before tonight. 3 Q And what about the blow-job birthdays? 4 A That is something that we do at our 5 location also, and it -- it's something that's kind 6 of part of our thing. 7 Now, nobody's ever come up to us and say -- 8 if any of you would have came up and say, "Hey, I 9 don't want you to do this," we have would have 10 stopped immediately. 11 We did not know that it was offensive to 12 these people. Nobody's asked us to stop. 13 Q Do you have a copy of the liquor code? 14 A Yes, sir. 15 Q Have you read it? 16 A Yes, sir. 17 Q Do you know what the requirements are of 18 it? 19 A As far as I knew, what we were doing was 20 not violating the liquor code. Sir, we've been doing 21 that since we opened, and -- 22 Q What does that simulate? 23 A It -- it does simulate a sex act, if that's 24 what you're saying. It's supposed to be something of 25 that nature. 244 1 Now, we've had everybody from 21-year-olds 2 to grandmothers get up on our bar and participate in 3 this on a fun basis. To enjoy themselves, not -- 4 not -- not to promote sexual promiscuity and -- 5 Q I appreciate your honesty in answering 6 that. 7 A I'm sorry? 8 Q I said I appreciate your honesty in 9 answering that. 10 What about the topless dancing? How are 11 you dealing with that. 12 A You know -- you know, the -- I am a bigger 13 prude about that than anybody. I do not allow that. 14 I would not allow that. If someone starts to do 15 that, we go after them immediately, with -- and bring 16 them down and talk to them. Please do not do that. 17 The situation they're talking about, that the girls 18 are not allowed back in because they did it again. 19 It's hard to -- if someone starts to do 20 that, we're on them right away and getting them to 21 stop. I have never seen anybody, any nudity, 22 whatsoever, never heard of any nudity in my place, 23 whatsoever, with this happening. 24 I've heard of girls that will pull up and 25 their bra will show and that's when they're on them 245 1 right away to stop that. This is not allowed in our 2 place. 3 Q Have you heard about the -- tonight, 4 obviously, you have heard about the discrepancies in 5 the training. 6 A Uhm-hum. 7 Q Is that standard practice in your 8 business -- 9 A No, sir. 10 Q -- how your people are trained to just be 11 on the bar, "I don't know anything about the rest of 12 the business"? 13 A No, there is a bit of cross-training. 14 We're talking about, you know, young kids here. They 15 are doing the best job they can being up here, 16 nervous. I know those kids were nervous talking to 17 you, as I am. 18 The thing about it is that to step outside 19 our business and do that was against our policy. The 20 judgment call was made because we had the assault 21 with a deadly weapon and we had a hurt individual. 22 And the call was made to go out, maybe we would have 23 stopped this because this person hurt this person. 24 They were doing it on a genuine basis 25 because of the fact that we had a hurt individual. 246 1 They are thinking, "We need to have somebody 2 accountable." We don't want to be the police, the -- 3 we don't want to do their job, it was a judgment call 4 on these guys to say, "Hey, maybe we should stop this 5 guy." 6 If I would have been there, maybe I would 7 not have made that call, maybe you would not have, 8 but in the heat of the moment, seeing a person hurt, 9 that's what that call came from. And it was breaking 10 policy to do that, sir. 11 Q Okay. What have you done to eliminate or 12 prevent the health violations that are obviously 13 occurring, based on your own customers' testimony, 14 about people urinating and regurgitating on doorways? 15 A The practice of the -- of serving 16 overintoxicated people, or getting to 17 overintoxication, was dealt with with the hiring of 18 Mr. Clayton. 19 We train on an ongoing basis. One thing 20 that Ray didn't say to you, is the fury that they get 21 from their -- me when they -- when I see them doing 22 something wrong, such as not making sure that that 23 drink went to somebody. When we're in there doing 24 this we're all over these kids. If you sat down with 25 my staff and you said, "Have you worked anywhere 247 1 else, has anybody been as hard on you about 2 overserving people as we are," they will say no. 3 Most people will say that. 4 If you talk to the people we cutoff in this 5 place, they will say that, "Nobody's ever cut me off 6 and taken me outside and talked to me about it," you 7 know. 8 We're very diligent on what we do there. 9 The situation, if -- that occurred on this Saturday 10 night is a small percentage, I believe, sir, of the 11 problems that we have. It's unfortunate that it's 12 that big of a problem, but, Mr. Cooper, I spend 13 70 hours a week in that place trying to make sure 14 that these things don't occur, that my business is 15 run well, that I fit into your community here. 16 Q Based on the testimony you heard tonight 17 from your employees, is it a fair assessment to say 18 your training doesn't work? 19 A In what sense of it, sir? I'm sorry. 20 Q They obviously don't know what their 21 requirements are. Is it a safe assumption to say 22 your training didn't work? 23 A I would not agree with that because 24 90 percent of the training works and works good. 25 Q Did you hear their testimony tonight? 248 1 A Yes, sir. 2 Q Did you hear them say they didn't know what 3 policy was? 4 A Crossover policy into other departments, 5 there was discrepancy but the majority of the policy 6 they know. 7 Q They apparently didn't know they weren't 8 supposed to leave the business. 9 A No, they -- the manager and Rick knew they 10 weren't supposed to leave that business. They made a 11 judgment call at that moment, like I said, based on 12 an injured person. 13 Q No further questions. 14 EXAMINATION 15 BY MR. OLDHAM: 16 Q Mr. Gonzalez, the letter that you wrote 17 on -- or signed, anyway, on the 19th of March, it 18 referred to altercations and unruly patrons and 19 things like that. 20 A Yes, sir. 21 Q What were you -- were you specifically 22 relating to episodes that had come to your attention 23 during the time period that you had been open? 24 A Prior to -- in the first -- there's this 25 discrepancy when we opened. We opened the 20th of 249 1 February, we didn't open in January. Up till 2 April 20th or so, we had some problems, most 3 definitely had problems there. 4 The onslaught of people that came at us, 5 sir, was more than we expected. And we made the 6 adjustments, and I believe we made the adjustments 7 really well this summer, as Sergeant Pino told me 8 during the summer, that we were doing a much better 9 job and there wasn't any complaints about us. 10 Q Would it be fair to say that the number of 11 patrons decreased during the summer because of the 12 college crowd? 13 A No, sir, we did better sales. 14 Q You did better? 15 A Yes, sir. Yes, sir. 16 Q Did you expect to have increase in the 17 business when the college crowd came back? 18 A We're -- we are -- we try to target 19 ourselves to not just the college. That's just one 20 aspect of the night. If you come in on a Friday 21 night, sir, you will have a wide range of business 22 people celebrating their birthday, to families going 23 out, all coexisting at that time. It's just the late 24 night end of it. We target and we try to get as many 25 of the whole population as we can in, not just the 250 1 college kids. 2 Q What were the types of episodes that 3 precipitated this letter of March 19th? 4 A Situations where people were 5 overintoxicated, were staggering, that we weren't -- 6 we -- it surprised the heck out of me, sir, that 7 someone would try to drink a 22-ounce margarita by 8 themselves, because at the other location we didn't 9 have that. 10 See, when we were selling them, we were 11 putting two straws in it. You know, it's going out 12 to more than one person. That was a mistake we 13 made as we opened. That's why we had to take that 14 off. Those were the kind of things that precipitated 15 these problems, they are the ones that we made the 16 adjustments on. 17 Q What were the altercations that you 18 referred to? 19 A As in any bar establishment, two people 20 bumping into each other that would verbally argue, 21 that you would have to get in front of and separate. 22 Things of that nature. The nonphysical altercations 23 that everybody's kind of spoke of. 24 Q How did the police department find out 25 about those if they weren't called? 251 1 A At the beginning, they were in our place 2 all of the time, undercover and walking through, 3 probably because we were the new place in town, and 4 they want to look like everybody else. 5 And partly because of the police department 6 being right next door to us, that we had a lot of 7 people -- a lot of police officers through. 8 Q Thank you. 9 A Yes, sir. 10 CHAIRMAN DAVIS: Additional questions from 11 the authority? 12 REDIRECT EXAMINATION 13 BY MR. DOW: 14 Q Two questions. 15 Did you receive notice of this hearing from 16 the City of Fort Collins? 17 A No, sir, I did not. 18 Q How did you learn about this proceeding? 19 A A reporter came up and asked me about it. 20 Q When was that? 21 A Tuesday afternoon. 22 CHAIRMAN DAVIS: Okay. Thank you very 23 much. 24 THE WITNESS: Thank you, sir. 25 MR. DOW: Mr. Chairman, this is my last 252 1 witness. Mike Smuck. 2 MICHAEL SMUCK, 3 having been first duly sworn, was examined and 4 testified as follows: 5 DIRECT EXAMINATION 6 BY MR. DOW: 7 Q Please state your name and spell your last 8 name for the record. 9 A Michael Smuck. S M U C K. 10 Q How are you employed? 11 A I am the general managing partner of 12 Michael Murray, LLC. 13 Q And is that the owning entity for 14 San Felipe's? 15 A Yes, it is. 16 Q That's the licensee -- 17 A Yes. 18 Q -- in fact? 19 A Yes. Complicated as it were. 20 Q You are primarily headquartered in 21 Flagstaff; is that right? 22 A Flagstaff, Arizona, yes. 23 Q But you have occasion to come here with 24 some frequency relative to management and operations 25 of the Fort Collins restaurant? 253 1 A Of late, yes. 2 Q Okay. You were not present on last Friday 3 night when this incident occurred? 4 A No. 5 Q You're aware that the Fort Collins Police 6 Department, as a part of this proceeding, is asking 7 the board to suspend your license for up to 15 days? 8 A Yes. 9 Q What would be the financial impact on the 10 business if that occurred? 11 MS. DAVIET: Chairman, for the record, I 12 would like to enter an objection here. That's 13 irrelevant for the purposes of this emergency hearing 14 and proceeding. 15 CHAIRMAN DAVIS: We have given a lot of 16 latitude. If it's brief, go ahead, Mr. Dow. 17 MR. DOW: It will be very brief. 18 Q (BY MR. DOW) What will be the financial 19 impact if you're shut down -- or your license is 20 suspended for 15 days? 21 A You want a dollar amount? 22 Q Yes. 23 A 65 -- of 65 to $75,000, assuming that 24 we're talking strictly liquor, not to mention the 25 financial impact of my staffing. 254 1 Q How many employees do you have? 2 A You can't quote me. It's between 45 and 3 48. 4 Q And what's the amount of sales tax that 5 San Felipe's pays the City of Fort Collins every 6 month? 7 A If I divided it out by the -- I know a full 8 dollar figure since we've opened is somewhere in the 9 area of $30,000 plus. 10 Q Since this incident has occurred, and in 11 the limited time you've had, have you reviewed your 12 management policies? 13 A Yes. 14 Q And you determined whether or not there 15 ought to be any adjustments or revisions to those 16 policies to try to implement and address some of the 17 concerns that FCPD has expressed? 18 A Absolutely. 19 Q And are you willing to cooperate with FCPD 20 with regard to their suggested changes so that any 21 problems will be minimized and, hopefully, 22 eliminated? 23 A Most definitely. I would like to proact 24 with some of the things my partners and I have 25 discussed since the arrival -- since this has arisen, 255 1 this scenario, or whatever -- 2 Q You had previously been in Fort Collins at 3 other times, in March of this year, when we all met 4 with Officer Richard Johnson, to discuss problems and 5 come up with some implementation plan to address 6 those? 7 A Yes. 8 Q And you proceeded with that to address 9 those problems? 10 A We discussed a list of things that we felt 11 we wanted to implement, and we implemented what we 12 wanted to implement. But there were other things 13 discussed at that meeting that we could have 14 attempted, as Rich had said earlier, that we felt 15 were -- would impede the process of what we do. 16 Q No other questions. 17 CHAIRMAN DAVIS: Cross. 18 CROSS-EXAMINATION 19 BY MS. DAVIET: 20 Q So in your discussions with Officer Johnson 21 of the police department, coming up with ideas that 22 might be implemented to address these problems, 23 you -- and I think I am quoting you -- only implement 24 what you want, is that right? 25 A We implemented -- we discussed, he agreed, 256 1 on certain things, we disagreed on other things. We 2 implemented the things we agreed on. The things we 3 disagreed on, we did not implement. 4 Q So you disagreed with the things that 5 impeded what you do, is that what you said? 6 A It -- that we felt would hinder the 7 performance of our business. 8 Q Hinder the sale of alcohol? 9 A Yes. 10 Q Do you spend more time in Flagstaff or more 11 time with the business in Fort Collins? 12 A Since the opening of this business, it's 13 been an equal amount of time. I will, in the future, 14 spend more time in Flagstaff. 15 Q So you're -- roughly 50 percent of your 16 time is devoted to Flagstaff, then? 17 A Correct. 18 Q So if there were problems with the 19 Flagstaff operation, insofar as the Flagstaff Police 20 Department were concerned, you would, no doubt, know 21 about that? 22 A Certainly. 23 Q And, in fact, there have been a great 24 number of problems with that concern, have there not? 25 A I would not classify it as a great number. 257 1 As of late, I would not -- in the last, probably, 2 year-and-a-half of operation, we've been open 3 two years there. In a year-and-a-half of operation, 4 I would say that we've had an excellent working 5 relationship with the police department, citations 6 have been few. When we opened there were problems 7 and we corrected them. 8 Q How many citations is a few? 9 A Again, I'm going off my memory. We've had 10 two citations on that liquor license. 11 Q How recently? 12 A One eight months ago and one right when we 13 first opened. 14 Q And when you first opened was August of 15 '97? 16 A Yes. 17 Q And a number of them in between, right? 18 A I'm sorry? 19 Q A number of those citations in between 20 those two times? 21 A Actually, I believe that I only have two 22 citations on our license. 23 Q Total? 24 A Yes, ma'am. 25 Q Thank you. 258 1 CHAIRMAN DAVIS: Any questions from the 2 authority? 3 EXAMINATION 4 BY MR. SCHMITZ: 5 Q What recommendations did Officer Johnson 6 have that you chose not to do? 7 A There was the discussion about wristbands, 8 and everybody that came into the place being 9 wristbanded and a -- like a hole puncher and you 10 punch them every time you get a drink. I felt that 11 that would impede the volume of business that you're 12 doing at the time. We -- 13 Q Why is that? Why would that impede the 14 sale of alcohol? 15 A Because we have four bartenders behind a 16 bar trying to serve -- after 10:00, when we are more 17 in our night club than we are a restaurant, there's a 18 goodly amount of people trying to be served. 19 Now, in my opinion, we want to serve those 20 people in an efficient manner, professionally, and I 21 feel that having to stop and have them hole-punch -- 22 every customer has to hold their arm up over the bar, 23 I just don't agree with that tactic. It -- 24 Q Was there anything else? 25 A It may be short-sighted, but I don't agree 259 1 with it. 2 Q Were there any other recommendations -- 3 A Colored and -- colored cups is another one 4 and I, no offense, never quite understood what we 5 were going to try to do with the colored cups and I 6 did not attempt to find out, I -- to clarify that to 7 myself. So I did not even explore colored cups. 8 Q So it was just those two? 9 A Those were the two major suggestions that 10 have been bantered around between myself, Jay, Rich, 11 and I believe there were a couple of other people at 12 the meeting as well, who were -- who said maybe this, 13 maybe that. 14 But those were the two that Rich had sort 15 of said, these are what you want to look at. 16 Q Was the intent for the wristband punching, 17 was that strictly to let the bartender know exactly 18 how much these people had been served? Was that the 19 whole intent behind the punching? 20 A Yes. 21 Q And what would be wrong with that? I mean, 22 I would like to know as a bartender how many drinks 23 I'm giving to a person. 24 A And as a bartender, I would expect that you 25 should know that, with having to punch a wristband 260 1 and inconvenience a customer or by having to reach 2 their arm over the bar for it to be punched, is -- it 3 just is not -- I don't know. There's something -- 4 Q So with an occupancy of 125 people in the 5 bar and that fluctuating all night, you would expect 6 your bartender to know -- 7 A I would certainly expect -- 8 Q -- how much he served to every person -- 9 A Not each and every person. I would expect 10 him to know the people who have tabs with him, who 11 will run a tab with him. He would certainly know how 12 much he served those people. I would certainly 13 expect that bartender also to observe that person as 14 they approach -- if they are unsure of how many 15 people they've served or how many drinks they've been 16 served, to observe that person in the manner in which 17 we were -- that's what we were attempting to have 18 Rick Clayton train these people at -- which is 19 observation. 20 Q If punching a wristband seemed too 21 time-consuming for the bartender, does he really have 22 time to be observing people's demeanors as they're 23 walking up to the bar or waking away -- 24 A Because there's conversation. Any way it 25 comes about, there's conversation. There's 261 1 conversation when you exchange money, there's 2 conversation in the ordering of a drink, there's 3 conversation in the greeting, "Hey, what can I get 4 you," if that's the greeting, or, "Hey, give me a 5 beer." 6 There is an exchange and, yes, I would 7 expect them to -- especially in this property, to 8 take note of that. And that's what we're trying to 9 pound home with, you know, some degree of success. 10 Q Okay. 11 CHAIRMAN DAVIS: Additional questions from 12 the authority? 13 MR. DOW: One question. 14 CHAIRMAN DAVIS: Yes. 15 REDIRECT EXAMINATION 16 BY MR. DOW: 17 Q Do you know of any other bars in 18 Fort Collins who punch wristbands or keep a count of 19 customers' drinks? 20 A Not personally, no. 21 CHAIRMAN DAVIS: Thank you very much. 22 Okay. Now, that was your last witness? 23 MR. DOW: Mr. Chairman, that was my last 24 witness. I would ask, depending on whether you have 25 a preference, is for a few minutes of summary of 262 1 closing statement and that's it. 2 CHAIRMAN DAVIS: Miss -- 3 MS. DAVIET: I have one rebuttal witness, 4 and I will commit to you will take less than five 5 minutes. 6 CHAIRMAN DAVIS: Okay. 7 MS. DAVIET: Rich Johnson. 8 OFFICER RICH JOHNSON, 9 having been previously sworn, was examined and 10 testified further as follows: 11 CHAIRMAN DAVIS: You're already sworn, so 12 you're good to go. 13 EXAMINATION 14 BY MS. DAVIET: 15 Q Officer Johnson, I would like to present to 16 you what's been marked for identification as 17 Exhibit 2, and ask if you're able to identify that 18 document. 19 A Yes. They are two faxed documents. One 20 document -- 21 MR. DOW: Sorry, Officer. I must object, 22 this apparently is a copy of document from another 23 state's records. This is the most blatant form of 24 hearsay -- this witness can't possibly have any legal 25 competence to testify as to the admissibility of this 263 1 document. It will be a terrible error for you to 2 allow this in. 3 MS. DAVIET: I'm attempting to lay a 4 foundation, Mr. Chairman. 5 CHAIRMAN DAVIS: Go ahead. 6 Q (BY MS. DAVIET) Please continue. 7 A These are two documents that were faxed to 8 me at my request. 9 Q Faxed to you by whom? 10 A One document was faxed me by Investigator 11 Chris DeFrancis with the Arizona Department of Liquor 12 License and Control. The second document is a record 13 search on San Felipe's Cantina in Flagstaff that was 14 done by Martha Callahan, Flagstaff Police Records 15 Department. 16 Q Are these two people in the police 17 departments ones that you initiated contact with? 18 A Yes. 19 Q What was it that gave rise to your 20 initiation of that contact? 21 A The reason I contacted these agencies is I 22 was concerned and -- about how San Felipe's does 23 business. I was curious as to the way their 24 Flagstaff store operated and if they had problems 25 down there with the police department and state 264 1 liquor. 2 Q And when you contacted these respective 3 companies, did you have telephone conversations with 4 them about information that they may have regarding 5 San Felipe's? 6 A Yes. 7 Q And following your conversations with them, 8 did they then agree to fax this information to you? 9 A Yes, they did. 10 Q And did you then receive that information 11 by fax soon thereafter? 12 A Yes. 13 Q Do you have any reason to believe that the 14 faxed information you received, that everyone has 15 been given copies of, is not a true and accurate copy 16 and memorandum of the information they described to 17 you over the telephone? 18 A I believe it's a true copy. 19 Q And based on the information that's been 20 provided to you by those two agencies, could you, as 21 briefly as possible, describe to the authority in 22 summary fashion what those documents show with regard 23 to citations and violations of the Flagstaff San 24 Felipe's operation. 25 MR. DOW: Same objection, Mr. Chairman. In 265 1 addition to relevancy, and it's immaterial, what goes 2 on in Arizona doesn't have anything to do with what 3 goes on in Fort Collins. 4 CHAIRMAN DAVIS: We're not a court of law, 5 we're going to hear this. Go ahead. 6 MS. DAVIET: I would just respond to that 7 by saying this goes to credibility of two witnesses 8 who have just very recently testified that they know 9 nothing about this, or know very little about it. 10 THE WITNESS: A summary of the information 11 I received from Investigator Chris DeFrancis is there 12 was four sustained violations of San Felipe's Cantina 13 in Flagstaff, Arizona. 14 Starting with the oldest, 8-14-97, act of 15 violence, failed to be reported, fine of $200. 16 March 1st, 1998, intoxicated person on the premise, 17 $500 fine. September 26th, 1998, underage person on 18 premise. There was a warning. And on December 10th, 19 1998, underage person on premise, and a $500 fine. 20 There is another one listed on the top, which is this 21 is No. 1, that is actually a followup to the 22 incidents on 12-10-98, and it is not actually a 23 violation. So there are four that they've listed. 24 The second document, to go back, starts 25 with a Flagstaff police cover page. It was a search 266 1 done on the address at San Felipe's in Flagstaff, 2 Arizona, and the search dates were from September 2d, 3 1998 through September 2d, 1999. And Flagstaff 4 police responded to that address 50 times on -- 5 Q During that one-year period? 6 A In a one-year period. And I got this late 7 this afternoon, and there's a thing on the back -- we 8 wrote down what the codes were, and I could go 9 through those or you can read them for yourself. 10 CHAIRMAN DAVIS: We can read them. 11 THE WITNESS: Okay. 12 MS. DAVIET: Thank you, officer. I would 13 move for admission of Exhibit 2. 14 CHAIRMAN DAVIS: Okay. We're going to -- 15 we will accept it and we'll give it the weight that 16 the authority feels appropriate based on Officer 17 Johnson's interpretation of it. 18 MS. DAVIET: That's all I have. Thank 19 you. 20 CHAIRMAN DAVIS: Okay. 21 MR. DOW: Just a couple questions. 22 EXAMINATION 23 BY MR. DOW: 24 Q The complaint case there, this document 25 here, with -- which appears to be a complaint, the 267 1 name on that, on behalf of the San Felipe's is Randy 2 Nations. Do you see that? 3 A I'm not sure what page you're on. 4 Q It's this document. It's the first 5 official-looking document, it's about the fifth page 6 down. 7 A Okay. 8 Q That name there is Randy Nations, correct? 9 A Yes. 10 Q Mr. Smuck's name's not on that, correct? 11 A Correct. 12 Q Randy Nations is the person that signed 13 that on page 2, correct? 14 A Okay. 15 Q The next document is a letter from the 16 state on January of this year, again addressed to 17 Mr. Nations, correct? 18 A Yes. 19 Q Not addressed to Mr. Smuck. Next letter, 20 same question, addressed to Mr. Nations, correct, not 21 to Mr. Smuck? 22 A Which page are you on now? 23 Q The very next page, the next letter -- in 24 your stack, here, this is January 25 and 25 December 15th. 268 1 A Okay. 2 Q Mr. Nations, again. The next letter 3 October, Mr. Nations, not Mr. Smuck. Correct? 4 A They all say Randy Nations and Michael 5 Murray, LLC. 6 Q None of them say Mr. Smuck, do they? 7 A Well, you asked -- 8 Q The question is: Are any of these 9 addressed to Mr. Smuck or any of these signed by 10 Mr. Smuck? 11 A Not -- 12 Q The answer is no, isn't it? 13 A Not that I see here. 14 Q Thank you. 15 CHAIRMAN DAVIS: Okay. Questions from the 16 authority? 17 EXAMINATION 18 BY MR. OLDHAM: 19 Q Does this exhibit from Martha Callahan, 20 purport to document all the 50 police calls in the 21 one-year time period? Because I only count 15. 22 Maybe I'm missing a page or two. 23 A No, I think what you're counting is the 24 different types. Under there, there's numbers 25 associated with each time, and at the bottom of that 269 1 page there should be a -- maybe there's not. On the 2 next page, Total Counts, 50. 3 MR. OLDHAM: Okay. So the 15 listed there 4 are categories. There may be more than one in any 5 given category. 6 A Right. 7 Q All right. Thank you. 8 MR. DOW: I have one. 9 CHAIRMAN DAVIS: Yes. 10 EXAMINATION 11 BY MR. DOW: 12 Q This was faxed to you at 2:46 p.m. today, 13 correct? 14 A Yes. 15 Q Do you recall receiving numerous calls from 16 our office today requesting that you provide us with 17 copies of all your documents and reports in this 18 case? 19 A I received the one call. Lightning struck 20 our radio tower and it wiped out our phone system at 21 the police department. 22 Q Lightning struck. 23 You didn't send this to us, did you? 24 A No, I did not. If I -- 25 MR. DOW: No questions. 270 1 MS. DAVIET: Mr. Chairman, at this point, 2 again, for the record, I'd just like to enter an 3 objection on the basis that nowhere in the law is 4 anyone required to provide rebuttal evidence to the 5 other side of the case. 6 CHAIRMAN DAVIS: Okay. Would you like to 7 do your closing while you're standing? 8 MS. DAVIET: Yes. 9 CHAIRMAN DAVIS: Your brief closing. 10 MS. DAVIET: Very brief. 11 CHAIRMAN DAVIS: Oh, I'm sorry. You may 12 step down. 13 MS. DAVIET: The authority is here this 14 evening to consider a very extraordinary matter, a 15 very extraordinary type of remedy that the law has 16 provided to the citizens of Fort Collins and to the 17 citizens of the state of Colorado. 18 This is an emergency type of a remedy 19 that's provided in a situation where basically a 20 business that serves liquor has gotten out of 21 control. The purpose of the hearing here is to 22 determine whether or not, by a preponderance of 23 evidence, there has been shown reasonable grounds to 24 find the licensee guilty of deliberate and willful 25 violation of any applicable law or regulation, or 271 1 that public health, safety or welfare imperatively 2 requires emergency action. 3 This is a licensee that's been open for 4 approximately eight months, ongoing problems almost 5 from the beginning, according to the testimony that's 6 been received, and repeated attempts and 7 communications by and with the police department to 8 try to address these remedies have not worked. The 9 recent incident on the evening of the 27th, spilling 10 over into the morning hours of August 28th, is simply 11 the action that brings this all to a head. 12 As Sergeant Whitson testified, even though 13 the gravity of the situation was such as it was, as 14 you've heard, it was just a tremendous problem, a 15 tremendous danger, requiring all officers off the 16 street to report there. No one from San Felipe's 17 called the police. Their security guard supervisor, 18 a former policeman, himself, saw blood on the floor, 19 did not call police. This is evidence of being out 20 of control. 21 As far as whether or not there's any 22 evidence here to determine whether there's a willful 23 or deliberate violation of any applicable law, we 24 have constant overservice of patrons, patrons who are 25 crawling away, patrons who are passing out, patrons 272 1 who are sleeping in the planters. Have repeated past 2 attempts from the police department to work with this 3 licensee, steps have been discussed, steps have been 4 agreed upon, steps have been given a lot of lip 5 service from the licensee as far as what would be 6 implemented and what has been implemented, to the 7 extent that any of these may have been implemented, 8 at least part of the employees aren't even informed 9 of these steps or these policies. They're not aware 10 of what they are. 11 The fact that there's been quite a bit of 12 cross-examination testimony here sought regarding 13 what San Felipe's employees have done to help 14 restrain people, they stop people after they've 15 started fights inside. This type of self-help type 16 of an action does not work in their favor to cancel 17 out the negative problems that are going on here. 18 This self-help and citizen police work does 19 not relieve the obligation that they have under the 20 law into the to over serve people, and to maintain an 21 orderly premises, maintain orderly conduct on the 22 premises. The health safety and welfare -- this 23 isn't even an "or" question -- willful, deliberate 24 violation of law, or public health, safety and 25 welfare. I would submit to you that what we have 273 1 actually shown here is an "and." 2 I just described for you the deliberate and 3 willful -- the indifference to the law and the 4 constant violation of the law. Health, safety and 5 welfare, fights inside this place constantly, as 6 described and corroborated by people who work at 7 San Felipe's. 8 They've done an excellent job of describing 9 them for you, the details of the constant fighting 10 that goes on in there. We've heard evidence of 11 patrons who cannot walk, patrons who are extremely 12 intoxicated, serious injuries, fights, weapons. One 13 of San Felipe's witnesses says this guy was hit in 14 the head, a deep laceration, second degree assault. 15 How much more serious, how much more of a threat to 16 public health can you get than felony second degree 17 assault and deep lacerations and head wounds and 18 crowds blocking the street and traffic, crowds 19 ignoring the police, intoxicated crowds ignoring the 20 police. No police on the streets in the early 21 morning hours of August 28th because they're all at 22 San Felipe's trying to control an intoxicated crowd. 23 Is there a car accident somewhere else in 24 town? Is there a rape, is there a robbery, is there 25 an assault? Well, if there is, well, they'll just 274 1 have to wait. 2 Danger to anyone who might happen through 3 the area and get in the way of this intoxicated 4 crowd. You've got fire code issues and problems, got 5 injuries to a police officer. One of the 6 San Felipe's witnesses testified that they usually 7 call the police and they, quote, usually follow their 8 policies, that's a quote straight from the witness. 9 Usually. Usually. Which necessarily means sometimes 10 not. 11 There's a management attitude here that 12 indicates that this type of activity is certain to 13 continue. We have sexually-oriented entertainment by 14 the admission of management from San Felipe's. And 15 what more can you say to sum it all up than the 16 San Felipe's crawl. 17 The Colorado Supreme Court has said that 18 the primary purpose of liquor laws is to authorize 19 the sale and consumption of intoxicating beverage, 20 while simultaneously protecting the public health, 21 safety and welfare. And, consequently, the 22 licensee's rights, in relation to the state, are 23 narrow, defined and transitory. 24 That is interpreted to mean basically this 25 is a licensing procedure, there is a privilege in 275 1 this state that allows people under the right 2 conditions to hold a liquor license, it's not a 3 right. The fact that specific definitions or 4 standards aren't contained in this specific 5 regulation or statute saying, public health, safety 6 or welfare means A, B, C, D, and E, does not mean 7 that there is -- that there is a vague standard here. 8 The Colorado Court of Appeals has 9 determined this is a common-sense determination, the 10 health, safety and welfare. They've said crime 11 prevention considerations are directly related to the 12 promotion of public safety and welfare. That quote 13 comes out of a case that they decided regarding 14 sexually oriented entertainment. Hence, the name. 15 Any one of these factors, any one of these 16 items that we've discussed here this evening under 17 prior case law and under the black letter of the 18 statute, itself, is enough to cause a summary 19 suspension of this license. 20 What the City is asking of the authority 21 here is for a summary suspension for a period of up 22 to 15 days to close this place down during the time 23 period it requires to get a show cause hearing put 24 together to prevent what is certain to happen between 25 now and then if it's not closed down. 276 1 This is clearly a public health, safety and 2 welfare issue. You're talking literally about 3 health. People being hurt. People bleeding. People 4 being hit with broken beer bottles, people passing 5 out and people being disoriented and not knowing 6 where they are. 7 Health and safety. The police are cleared 8 from the streets and the traffic that is in the 9 street is being blocked by the crowds coming from 10 San Felipe's. The City requests that the authority 11 summarily suspend the license, take this emergency 12 action, in order to protect the public health, safety 13 and welfare pending a time within 15 days when a show 14 cause hearing can be set, and to prevent the 15 certainty of what's bound to happen between now and 16 then if this place is continuing to operate. 17 Thank you. 18 CHAIRMAN DAVIS: Mr. Dow. 19 MR. DOW: Counsel must live in a perfect 20 world, but -- 21 MS. DAVIET: No, I live in Greeley. 22 MR. DOW: I don't and you don't, and the 23 police officers don't, and neither do people that 24 have to make their living operating restaurants and 25 bars in Fort Collins and elsewhere. 277 1 Before I get to the substance of this, I 2 want to make just one comment, and that is, 3 basically, to thank you for your patience. I was on 4 the planning and zoning board for the city for eight 5 years, so I sat through a lot of these, as you have. 6 I was also on the water board for six years. 7 And I think one of the fundamental 8 principles is fairness that the boards and 9 commissions of the city of Fort Collins try to 10 follow. And I don't think that that's occurred in a 11 case where something like this has happened without 12 any notice to anyone. 13 Counsel's now claiming there's a -- there's 14 some God-awful crisis in Fort Collins, and if you 15 don't do something tonight, that the safety of our 16 citizenry is at stake. That's just -- that's 17 foolishness. 18 The standard is, under regulation 47-602, 19 is whether the public health safety or welfare 20 imperatively requires emergency action. Here, the 21 licensee has never even received one citation. 22 There's no complaint, there's no citation in the 23 records of this city for the people that are supposed 24 to administer liquor licenses and enforcement. 25 There's nothing. 278 1 And for an FCPD to come in in this 2 chicken-hearted way with no notice and all of a 3 sudden claim some emergency that would shut these 4 people down and cost them $65,000 in the next 15 days 5 because there's some so-called emergency, just flies 6 in the face of common sense. The common sense is 7 ultimately what you must apply in a case such as 8 this. 9 This is a classic case of overkill by FCPD. 10 They overreacted to the situation. The facts are 11 that three individuals -- or I'm sorry, about six 12 individuals came into this bar around 12:30, 12:45 at 13 night, apparently were okay, come over from Greeley 14 to have a little fun in Fort Collins, and within 15 about 30 minutes one of them cracks a patron over the 16 head with a beer bottle; cuts his head open. 17 What are we supposed to do? What would you 18 do if it was your bar? I think that they did the 19 only thing that's reasonable. And -- and to use this 20 incident as a pretext to try to shut down 21 San Felipe's which is, frankly, I think, the agenda 22 of some of the officers involved, is clearly unfair 23 and you just -- you must not do that. 24 If you want to enter a show cause hearing 25 and have -- and have a hearing on a citation, I think 279 1 that you certainly -- you certainly can do that. If 2 you want to take some type of other action, you have 3 all kinds of action and remedies at your disposal. 4 You could -- I believe you could impose a fine. 5 I believe you could order -- put them on 6 probation. You could shut them down for a day or two 7 or over a weekend and, you know, really jerk their 8 chain and get their attention if you feel that that's 9 really necessary; although, I don't. 10 But to shut them down on one day's notice 11 for 15 days is a bad case of overkill. I talked to 12 Bill Wawro today, who's a Fort Collins lawyer, and he 13 was on your board for eight years. I told him what 14 was happening and he couldn't believe it. He 15 couldn't believe that we would even have this 16 hearing. And he told me that this had never happened 17 in the eight years that he was on this board. 18 My partner, Butch Sommermeyer, was also on 19 this board before Bill Wawro. He never heard of such 20 a thing. This has never happened, to my knowledge, 21 in the city of Fort Collins, and certainly it hasn't 22 happened for at least 10 or 15 years. So this is a 23 serious unprecedented action that they're asking you 24 to take. And I don't think that you should take it. 25 Counsel from Greeley told me it's happened 280 1 one time in seven or eight years in Greeley. Now, 2 over this period of time, we've had terrible fights 3 in bars in Fort Collins. We've had knifings, we've 4 had shootings, we've had murders, we've had all kind 5 of things in very dangerous bars and you know which 6 ones they are. I'm not saying San Felipe's. 7 And even in those extreme circumstances, 8 this board took no action similar to what you're 9 being asked to take tonight. So I think this should 10 be dismissed and this hearing should be wiped from 11 the record. It is not worthy of this board. 12 If you want to have a full hearing or 13 impose some minor penalty, perhaps that would be 14 appropriate, but this wasn't our deal, this was 15 somebody else that came into our bar and whacked 16 somebody, and then our people tried to restrain him 17 until the police got there and that's what happened. 18 There were a lot of other people out there 19 from other bars, there are lots of incidents in other 20 bars, and to single these people out from this type 21 of adverse and one-sided type of penalty truly is 22 inappropriate. 23 Thank you. 24 CHAIRMAN DAVIS: Redirect? 25 MS. DAVIET: Just very quickly. 281 1 I don't have any name dropping to do for 2 you, but I do agree that this is a very serious, 3 serious matter. 4 I don't agree that it's unprecedented. 5 Summary suspensions have been done over and over and 6 over again in the state of Colorado. We're very 7 fortunate in Greeley that in the last seven years, 8 that I'm aware of, we've only had one. They happened 9 in Denver and Aurora frequently. The Supreme Court 10 and the Court of Appeals have addressed these and 11 upheld them in virtually every case. It is not 12 unprecedented. 13 It is very serious. I agree with Mr. Dow, 14 it's very serious, and that is why we are here, and 15 that is why our police department is asking for the 16 action that it is asking for. 17 Thank you. 18 CHAIRMAN DAVIS: Thank you. 19 Comments from the authority? I would 20 entertain any type of motion. 21 We'll break this out. The first motion 22 that we should do, I believe would be to have either 23 a motion that there is or is not probable cause to 24 believe that a license violation or any provisions of 25 the liquor code or regulations have occurred at 282 1 San Felipe's on this date in question. 2 MR. COOPER: Okay, I'll start the ball 3 rolling here so we can get it on the floor for 4 discussion. 5 Based on reading the definition of 6 reasonable grounds, basically stating that there are 7 facts that would lead a person of ordinary care and 8 prudence to believe and consciously entertain honest 9 and strong suspicion that at least one of the two 10 summary suspension circumstances exist, based on the 11 information provided tonight that the owner has 12 admitted that simulated sex acts have occurred in 13 there, that he knew the law, that he has a copy of 14 the liquor code. That he's aware that people at 15 least attempt to on the bar. We've had testimony 16 that they, in fact, have done it from various stages. 17 Some that they start and they're stopped, others that 18 it has actually been rewarded for occurring. 19 We do have some testimony of repeated 20 violations as they relate to fights. I think based 21 on the testimony of the employees, at least to me, 22 it's been demonstrated that there's very poor 23 training. We've had citizens complain to the police 24 department that patrons of the place have been 25 urinating, regurgitating on the various doorsteps. 283 1 I think that the City has shown that 2 there's reasonable grounds to believe that the 3 licensee is guilty of a deliberate and willful 4 violation, and that some public health, safety or 5 welfare issues do exist. 6 Personally, I would have liked to have seen 7 the party notified when practical, but I don't see 8 that as a requirement in the law and I think that we 9 have to follow what's before us. 10 So I'll make a motion that we do find cause 11 for a summary suspension. 12 CHAIRMAN DAVIS: There's a motion. Is 13 there a second? 14 Hearing none, any further discussion? 15 MR. OLDHAM: I'm sorry, Mr. Cooper, your -- 16 when I -- I thought you were starting out your 17 motion -- I thought you were addressing the issue of 18 show cause. And then when you ended up, it seemed 19 like you were addressing the issue of summary 20 suspension. 21 MR. COOPER: What I'm suggesting here is 22 that summary suspension is in order. And it's my 23 understanding that we -- they certainly have a right 24 to have a show cause hearing to determine whether or 25 not it should go further, to find out if there's 284 1 additional facts. That's my understanding. I guess 2 maybe we should have an interpretation from the City. 3 MR. TEMPEL: I would suggest you first deal 4 with whether there's probable cause to believe that 5 the licensee has violated any of the provisions of 6 the liquor code. Once you've answered that question, 7 then you could move to the summary suspension issue. 8 CHAIRMAN DAVIS: I thought I got it that 9 way, but maybe it's getting to be a late hour -- 10 MR. TEMPEL: I think that's how you 11 started out, but Carl went straight to the summary 12 suspension. 13 MR. COOPER: I guess maybe I need to 14 clarify and say I think there's probable cause based 15 on the points that I've outlined and leave it at 16 that. 17 CHAIRMAN DAVIS: So that's a motion now. 18 Does that meet the -- 19 MR. TEMPEL: We need to know what sections 20 you believe are violated. 21 MR. COOPER: Specifically the regulation 22 47-602 of the liquor code. 23 MR. TEMPEL: That's not -- that's the 24 summary suspension section, that's not a substantive 25 provision for a violation. 285 1 MR. COOPER: Give me just a moment. I'll 2 have to look up the statute, specifically. 3 Do you want the actual statute or are rules 4 and regulations sufficient for that? 5 MR. TEMPEL: Well, statute or regulation. 6 CHAIRMAN DAVIS: I think that other motion 7 kind of passed away now. When you get your ducks in 8 a row, let's have a new motion. 9 MS. DAVIET: It was my assumption this was 10 Conduct of Establishment that you're looking at, so 11 that would either be -- if that's what you're doing, 12 it would either be regulation 47-900 -- 13 MR. DOW: Is Counsel advising the board 14 now? 15 MR. COOPER: What I'm looking at is 16 regulation 47-900, Conduct of the Establishment, A, 17 orderliness, loitering or serving intoxication -- 18 intoxicated persons, C, sub 1, A, the sexual 19 intercourse, or masturbation, sodomy, beastiality, 20 oral copulation, et cetera. Part 1 is the 21 simulation. And I guess that's -- 22 CHAIRMAN DAVIS: State that in a motion, 23 there, Carl. 24 MR. COOPER: Rule 47-900, Conduct of the 25 Establishment, with the subsections I've just 286 1 outlined, I think gives reasonable grounds to show 2 that a violation may have occurred, based on the 3 facts I've already outlined. 4 MR. TEMPEL: That would be probable cause 5 to believe that those violations occurred on the 6 premises? 7 MR. COOPER: Yes. 8 MR. DOW: Counsel, for the record, could we 9 have the motion restated with the citation so that 10 the record is clear on what this motion is? 11 MR. TEMPEL: My understanding is the motion 12 is to find that the licensee has violated regulations 13 47-900(a), serving the visibly intoxicated person, 14 and regulation 47-900(c)(1) -- let me turn to that 15 real quick -- which is that the licensee engaged or 16 permitted any person to perform any acts which 17 simulate sexual intercourse, masturbation, sodomy, 18 beastiality, oral copulation, flagellation, or any 19 sexual acts which are prohibited by law. 20 Those are the two that you meant, 21 Mr. Cooper. 22 MR. COOPER: Yes. That's correct. 23 MR. SCHMITZ: I would second that motion. 24 CHAIRMAN DAVIS: There is a motion and 25 second. Is there any additional comments from the 287 1 authority? 2 Any comments from other parties of 3 interest? Do we need -- 4 MR. TEMPEL: You don't have to entertain 5 that if you don't want to. 6 CHAIRMAN DAVIS: I won't entertain that at 7 this hour. 8 Any comments from the authority? Further 9 discussion? Roll call. 10 THE CLERK: Mr. Oldham? 11 MR. OLDHAM: Yes. 12 THE CLERK: Mr. Schmitz? 13 MR. SCHMITZ: Yes. 14 THE CLERK: Mr. Davis? 15 MR. DAVIS: No. 16 THE CLERK: Mr. Morris. 17 MR. MORRIS: Yes. 18 THE CLERK: Mr. Cooper. 19 MR. COOPER: Yes. 20 CHAIRMAN DAVIS: Okay. So what has 21 occurred is now probable cause has been found that a 22 violation has occurred. Now, how we deal with that 23 violation is the next issue that we need to discuss 24 as an authority. 25 We have some options here; is that correct, 288 1 Mr. Tempel? 2 MR. TEMPEL: Yes. Your options are you can 3 set the matter for a hearing at this point. You 4 can -- if you wanted to determine first whether 5 summary suspension was in order, then you would deal 6 with that at this point, because that would impact 7 when you would need to set the matter for a hearing. 8 CHAIRMAN DAVIS: If there was a hearing -- 9 if a summary suspension was in order, then it's 10 within 15 days? 11 MR. TEMPEL: Yes. 12 CHAIRMAN DAVIS: And if it was that a show 13 cause hearing should be held, then that would be our 14 next regular meeting, if there was no summary 15 suspension attached; is that correct? 16 MR. TEMPEL: It could be at your regular 17 meeting. That's traditionally how it's been done. 18 CHAIRMAN DAVIS: Okay. So, now is there 19 further discussion from the authority or to entertain 20 a motion? 21 MR. MORRIS: I would like to make a motion 22 that we do not pursue the summary judgment against 23 the licensee at this point in time and that we hold 24 the show cause hearing on the next regularly 25 scheduled meeting of the liquor authority, which is 289 1 the 22d of September, 1999. 2 MR. SCHMITZ: Second. 3 MR. DOW: When? 4 MR. MORRIS: 22d. Fourth Wednesday of the 5 month. 6 CHAIRMAN DAVIS: There's been a motion and 7 second. Is there further discussion or comments from 8 the authority? 9 MR. COOPER: The only comment I'll make on 10 it -- I think you already know where this is 11 headed -- but I think there is enough probable cause 12 to show that this is a hazard and should be closed, 13 however -- so I will not be supporting the motion. 14 MR. MORRIS: And my intention with this 15 motion is not to belittle the work that the police 16 have done and their observations in general, and over 17 time, but I don't think the requirements have been 18 met by this -- by these instances to raise it to the 19 level of the punishment that is intended by a summary 20 suspension of the license. 21 So, therefore, I think that we're best to 22 deal with it in a regular manner. 23 MR. OLDHAM: My take on it, is just whether 24 or not it's imperative to do that. And I think 25 that's probably a real close call. And just because 290 1 the maximum time period of 15 days is required before 2 additional expanded hearing can take place doesn't 3 mean that it has to be 15 days, it could be less than 4 15 days. 5 I have a concern that there is, apparently, 6 from what I have heard, repeated acts that have 7 occurred almost from the inception of opening and, 8 theoretically, have been attempted to be addressed, 9 but continue to repeat themselves even after being 10 addressed. And I think that's exacerbated by the 11 return of college students and the increased exposure 12 for violence and acts that are detrimental to 13 society, and the public that are going that -- that 14 could occur. And I'm kind of worried that it might 15 be imperative at this point in time. I think I 16 intend to support the motion. 17 MR. COOPER: Can I ask the City how long it 18 would take to prepare a case, if we gave it less than 19 the 15 days? So that both sides would have the 20 information. Obviously I need to hear from you, too, 21 how long you would need to prepare for this. 22 MS. DAVIET: It's hard for me to say 23 because I don't know what other witnesses or how much 24 other information there is out there. I would do it 25 within whatever time period you set for me. 291 1 MR. DOW: I guess I would have the same 2 sponges. That we also have a Labor Day weekend 3 upcoming and I have a personal family medical 4 situation involving a surgery next week and it really 5 would be difficult for me, in all honesty. 6 MR. OLDHAM: Okay. In all honesty, one 7 thing that concerns me is the upcoming beach party or 8 whatever. I think that is -- that is something that 9 really needs to be -- 10 MR. DOW: I think, Mr. Oldham, to address 11 that, that the -- they would agree to cancel that and 12 forget it. 13 MR. OLDHAM: I appreciate your candor, sir. 14 MR. COOPER: Mr. Oldham, I guess part of my 15 concern, also, is that we do have a holiday coming 16 up. We've already seen what happens on the regular 17 weekend, I can only imagine what's going to happen 18 over a holiday weekend. 19 CHAIRMAN DAVIS: Okay. 20 MR. DOW: I would like to respond to that. 21 I think after this hearing, that things will be very 22 well monitored. 23 MR. COOPER: I'm sorry, I don't have a lot 24 of confidence in that right now. They don't have a 25 very good track record. 292 1 MR. OLDHAM: I call the question. 2 CHAIRMAN DAVIS: Okay. So additional 3 comments? 4 MR. TEMPEL: And so the motion -- let's be 5 sure we're clear on the motion here. 6 The motion is to not find that a summary 7 suspension is in order and to schedule a show cause 8 hearing for the next regular meeting of the 9 authority. 10 CHAIRMAN DAVIS: That's correct. That's 11 the motion. It's been made and seconded. And I 12 would just say that, to echo what's been said, that I 13 think it is a serious problem. 14 I think the police have bent over backwards 15 to try to help you guys and work with you, and I 16 don't know who dropped the ball there. It was a 17 little bit on maybe both sides on somebody reporting 18 to the liquor enforcement, but I would have felt a 19 lot more comfortable if there had been a couple 20 summonses written early on and they hadn't given you 21 all the breaks, then I would have been voting a lot 22 differently tonight, especially when the officer says 23 that they saw these drunk people in there coming out 24 of there and, you know, had personal observations of 25 it and they didn't take any action. 293 1 So if they had issued summonses, then we 2 would have had this show cause hearing a long time 3 ago, and then if we go back to this disturbance, then 4 I would be looking at it a lot different than that. 5 You don't have any violations at this point, so I'll 6 support this motion. So anymore comments. 7 Roll call. 8 THE CLERK: Mr. Oldham. 9 MR. OLDHAM: No. 10 THE CLERK: Mr. Schmitz? 11 MR. SCHMITZ: Yes. 12 THE CLERK: Mr. Davis? 13 MR. DAVIS: Yes. 14 THE CLERK: Mr. Morris? 15 MR. MORRIS: Yes. 16 THE CLERK: Mr. Cooper. 17 MR. COOPER: No. 18 CHAIRMAN DAVIS: Okay. So three to two. 19 Motion passes. 20 Any other business? September 22d. Is 21 that ample time? We're -- that was in the motion, so 22 that has to be. September 22d. 6:00. It should be 23 in the council chambers. 24 MR. DOW: Thank you. 25 (Hearing concluded at 12:00 a.m.) 294 1 REPORTER'S CERTIFICATE 2 I, Mary J. George, a Registered 3 Professional Reporter, Registered Merit Reporter, 4 Certified Realtime Reporter, and Notary Public within 5 the State of Colorado, appointed to take the Hearing 6 of the Liquor Licensing Authority, do hereby certify 7 that the proceedings were reduced to typewritten form 8 by means of computer-integrated transcription; that 9 the foregoing is an accurate transcript of the 10 proceedings at that time. 11 I further certify that I am not related to, 12 employed by, nor of counsel for any of the parties or 13 attorneys herein, nor otherwise interested in the 14 result of the within action. 15 In witness whereof, I have affixed my 16 signature and seal this 13th day of September, 1999. 17 My commission expires October 2, 2002. 18 19 ______________________________ MARY J. GEORGE 20 Registered Professional Reporter Certificate of Merit Holder 21 Certified Realtime Reporter 22 23 24 25 PLEASE ATTACH TO YOUR COPY OF THE LIQUOR LICENSING AUTHORITY TRANSCRIPT: Date of Hearing: September 2, 1999 THIS HEARING TRANSCRIPT HAS BEEN FILED _XXX_ Signature waived or not required _____ Reading and signing was not requested by the deponent _____ Unsigned; signed signature page and change sheets, if any, to be filed at trial _____ Not signed, notice duly given pursuant to the Rules of Civil _____ Signed by the deponent with no changes _____ Signed by the deponent with changes, copy of which is enclosed _____ Unsigned, with changes, copy of which is enclosed _____ Signature page to be returned to court at time of trial FILED WITH: AIMEE JENSEN, Deputy City Clerk DATE FILED: ________________________ RECEIVED BY: _______________________ Enclosures: (As above noted) cc: Greg Tempel, Esq. Mary Pat Daviet, Esq. Timothy J. Dow, Esq.