HomeMy WebLinkAboutLiquor Licensing Authority - Minutes - 08/07/2008LIQUOR LICENSING AUTHORITY MINUTES
Regular Meeting - August 7, 2008
1:00 p.m.
Staff Liaison: Aimee Jensen
A regular meeting of the Liquor Licensing Authority was held on August 7, 2008 in Municipal Court,
Justice Center, 215 North Mason. Judge Kathleen M. Lane presiding.
Staff in attendance: Teresa Ablao, Senior Assistant City Attorney
Aimee Jensen, Deputy City Clerk
Robert Younger, Liquor Enforcement Officer
JennyLopezFilkins, Assistant City Attorney
Show -Cause Hearing for Luscious Nectar, Inc.,
dba Luscious Nectar, 222 Linden Street,
Assistant CityAttorneyLopezFilkins called Ron Gonzales, Assistant Fire Marshall for the Poudre Fire
Authority, to testify. He was sworn.
In response to questions from Assistant City Attorney LopezFilkins, Assistant Fire Marshall Gonzales
briefly described his interaction with JeremyKempter, representative for Luscious Nectar, Inc.
Mr. Wilson cross-examined.
Assistant City Attorney LopezFilkins re -directed.
Paul Rees, Larimer County Health Inspector, was sworn. He stated he has been a health inspector for
12 years. Mr. Rees described his on -site food inspection of Luscious Nectar.
Exhibit 3 was entered into evidence.
Mr. Wilson cross-examined. Mr. Rees stated that removing breakfast burritos from the menu would
not require a report with the Larimer County Health Department.
Assistant City Attorney LopezFilkins re -directed.
Mr. Rees was dismissed.
Shawn McGaffin, Firefighter and Fire Inspector with Poudre Fire Authority, was sworn. He stated he
has been a fire inspector for 8 months and a fire fighter for 10 years. Mr. McGaffin described an
evening when Luscious Nectar was over occupancy.
August 7, 2008
Zach Wilson cross-examined. He stated he didn't issue a summons to Luscious Nectar, Inc., for over .
occupancy.
Senior Assistant City Attorney Ablao re -directed.
Zach Wilson re -cross examined.
Mr. McGavin was dismissed.
Michael Wilson, Firefighter and Fire Inspection Coordinator with Poudre Fire Authority, was sworn.
He described the events that occurred May 10, 2008.
Zach Wilson cross-examined.
Senior Assistant City Attorney re -directed.
Robert Younger, Liquor Enforcement Officer with the Fort Collins Police Department, was sworn.
Officer Younger described reports and incidences that have occurred at Luscious Nectar.
Zach Wilson cross-examined.
Senior Assistant CityAttorneyAblao requested that all the Poudre Fire Authority employees and that
Larimer County Health Department Inspector Rees be dismissed.
State Liquor Investigator Small, was sworn.
In response to questions from Senior Assistant City Attorney Ablao, Investigator Small described his
duties as a state liquor investigator.
Zach Wilson cross-examined.
Senior Assistant City Attorney Ablao re -directed.
Jeremy Kempter, was swom. In response to a question from Mr. Wilson, Mr. Kempter stated he is an
owner of Luscious Nectar Corporation.
Senior Assistant City Attorney Ablao cross-examined.
Zach Wilson re -directed.
Senior Assistant City Attorney Ablao re -cross examined.
Zach Wilson re -re -directed.
August 7, 2008
Chad Dobson, Northern Colorado Restaurant Association representative, was sworn. He stated one
of his duties is to sell memberships to restaurants. Mr. Dobson stated they do have a few tavern
licensed establishments as members.
Senior Assistant City Attorney Ablao cross-examined.
Dave Hejde, was swom. He stated his place of residence is 222 Linden Street and that he is a customer
of Luscious Nectar.
Senior Assistant City Attorney Ablao cross-examined.
Senior Assistant City Attorney Ablao gave her closing arguments.
Zach Wilson gave his closing arguments.
Senior Assistant City Attorney Ablao gave final closing arguments.
Judge Lane rendered her decision.
(See auad)ed Order cf Swpemi4
Adjournment
The meeting a ed at 5:48 p.m.
FOR ISJ
OF,
.
Municipal Judge
Sec a
3
BEFORE THE FORT COLLINS LIQUOR LICENSING AUTHORITY
FORT COLLINS, COLORADO
ORDER OF SUSPENSION
IN THE MATTER OF:
Luscious Nectar Corporation dba LUSCIOUS NECTAR
222 Linden Street
Fort Collins, CO 80521
License No. 42-42193-0000, Hotel -Restaurant
On August 7, 2008, this matter came before the Authority for hearing on the City's
Amended Motion to Revoke License based on alleged violations of the following
provisions of the Colorado Liquor Code and Code of Regulations:
a. C.R.S. 12-4741l(1)(a), failure of a hotel -restaurant licensee to "actually
and regularly" serve meals;
b. C.R.S. 12-47411(5), failure of a hotel -restaurant licensee to "maintain a
bona fide restaurant business and not a mere pretext for obtaining a hotel
and restaurant license';
c. C.R.S. 1247411(10) and C.R.S. 12-47-301(8), failure of the licensee to
notify the Authority within five days of "[w]hen a person ceases to be a
registered manager of a hotel and restaurant license';
d. Regulation 47-418(B), failure to "at all times, when meals are required to
be served, maintain on the premises adequate personnel, foodstuffs and
other necessary facilities, equipment and supplies for the preparation and
serving of meals...";
e. City Code Section 3-81(b), failure to post required sign regarding reports
of disturbances;
f. C.R.S. 12-47-901(5)(h), failure to post Minor warning sign;
g. C.R.S. 12-47-301(4)(a), failure to post local liquor license;
h. C.R.S. 1247-301(7), failure to file a change in corporate structure;
i. Regulation 47-900(A), Conduct of Establishment — violation of Uniform
Fire Code Section 2501.16.3 (Overcrowding) on or about February 10,
2008; and
j. Regulation 47-900(A), Conduct of Establishment — violation of Uniform
Fire Code Section 2501.16.3 (Overcrowding) on or about June 13, 2008.
At the hearing, evidence was presented by the City, through its attorney Teresa Ablao,
and the Licensee, through its attorney Zach Wilson, and included sworn testimony,
photographs, diagrams and other documentary evidence. Based on that evidence, the
Authority found as follows:
On the issue of whether the Licensee is actually and regularly serving meals in
a manner consistent with and as required of a hotel -restaurant licensee
(allegations a, b, and d, above), the allegations have not been proven by a
preponderance of the evidence. Although the menu, personnel, and kitchen
facilities are more limited than in larger restaurants and the opening hours and
menu items have changed somewhat since the license was granted, the
evidence indicated that meals with several components have been available
and actually and regularly served. Further, the financial evidence presented by
the Licensee indicated that those meals provide over 25% of the gross income
from sales of food and drink of the business of the licensed premises.
2. On the issue of whether the Licensee failed to properly notify the Authority of
a change in management (allegation c), the allegation has been proven by a
preponderance of the evidence. The evidence showed that the individual listed
as the registered manager with the Authority has not been personally or
directly involved in the business for many months and that the Licensee has
not yet designated a new registered manager with the Authority, as required
by C.R.S. 1247411(8) and (10).
3. On the issue of whether the Licensee failed to properly post various items
(allegations e, f, and g), the allegations have been proven by a preponderance
of the evidence. The evidence showed that the required postings were not
properly made when the premises was observed by the inspectors and Officer
Younger.
4. On the issue of whether the Licensee failed to properly file a change in
corporate structure (allegation h), the allegation has not been proven by a
preponderance of the evidence. The evidence did not show that any corporate
structure changes have been formally and legally made since the license was
granted.
5. On the issue of whether the Licensee violated the conduct of establishment
regulation by allowing overcrowding (allegations i and j), the allegations have
been proven by a preponderance of the evidence. The testimony of Officer
Younger and the Poudre Fire Authority personnel indicated that on more than
2 occasions, on or about the dates mentioned in the City's Motion, the
Licensee allowed more than the maximum permissible occupancy of 49
persons on its premises. The evidence also indicated that the owner of the
business was personally present on at least one of those occasions and that
several contacts were made with the business in connection with this issue
over a period of several months by Fort Collins Police Services and Poudre
Fire Authority personnel.
Based on the findings stated above, as well as arguments with regard to aggravating and
mitigating circumstances and recommendations from Ms. Ablao and Mr. Wilson, the
Authority hereby set the penalty as follows:
a. That although revocation of the license is not warranted in this instance,
suspension of the license for a period of time is appropriate, particularly in
recognition of the serious health and safety concerns presented by the
overcrowding issue. Thus, the license shall be suspended for 17 days, with
credit for the period of revocation/suspension which has already been
served under the original Order of Revocation dated July 21, 2008, set
aside by this Authority and immediately replaced with an Order of
Summary Suspension on August 4, 2008 for the period between August 4
and August 7, 2008;
b. That the Licensee is to register a new manager with the Authority by
Monday, August 11, 2008;
c. That, approximately 6 months from now (if no related issue arises in the
meantime), the City is to review the Licensee's financial records relating
to food and alcohol sales pursuant to Section 3-80 of the City Code in
order to ensure that the Licensee is continuing to comply with the
requirements of a hotel -restaurant license.
DONE this �� day of August, nunc pro tunc, August 7, 2008.
FORT COLLINS LIQUOR LICENSING AUTHORITY
Judge Kathleen M.
Municipal Judge