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HomeMy WebLinkAboutLiquor Licensing Authority - Minutes - 09/07/1988• 0 LIQUOR LICENSING AUTHORITY MINUTES Regular Meeting - September 7, 1988 6:38 p.m. A regular meeting of the Liquor Licensing Authority was held on Wednesday, September 7, 1988, in the Council Chambers of the Fort Collins Municipal Building. The following members were present: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Authority Members Absent: Bullard. Staff Members Present: Kathy Allin, City Attorney's Office Rita Knoll, City Clerk's Office Ken Murray, Police Department Consent Calendar This Calendar is intended to expedite the meeting and allow the Authority to spend its time and energy on the important items on a lengthy agenda. Anyone may request an item be "pulled" off the Consent Calendar and considered separately. Items pulled from the Consent Calendar will be considered separately immediately following adoption of the Consent Calendar. Items of extreme controversy will be discussed near the end of the meeting under Pulled Consent Items. Consider approval of the minutes of the August 10, 1988 regular meeting. Changes of Corporate Structure: A. Seven -Eleven, 505 South Shields. B. Seven -Eleven, 2035 West Prospect. C. Seven -Eleven, 429 Remington. D. Seven -Eleven, 4543 Boardwalk. E. Seven -Eleven, 2800 South College. F. Seven -Eleven, 1600 South Lemay. G. Seven -Eleven, 970 West Horsetooth. Items A through G represent a change in corporate structure for The Southland Corporation, the licensing entity for all Seven -Eleven stores in Fort Collins. This change of corporate structure was filed directly with the State Liquor Enforcement Division, which has issued a new master file letter indicating the satisfactory results of its background investigation. Approval by the local authority is requested based upon the State's investigation and acceptance of the reported changes. A representative of Southland Corporation WILL NOT be present at this meeting. • 0 September 7, 1988 Change of Corporate Structure - ShowBiz Pizza Place 105 West Prospect This is a request to register Michael H. Magusiak as Treasurer and Director of ShowBiz Pizza Time, Inc., the licensee for ShowBiz Pizza Place. The Police Department has completed a background investigation of Mr. Magusiak and has found no outstanding warrants, criminal history, or any major driving offenses. A representative of ShowBiz Pizza Time, Inc. WILL NOT be present at this meeting. Change of Corporate Structure - Bennigan's 2203 South College This is a request to register Robert S. Svehlak as President and Director of Steak and Ale of Colorado, Inc., the licensee for Bennigan's. The Police Department has completed a background investigation of Mr. Svehlak and has found no outstanding warrants, criminal history, or any major driving offenses. A representative of Steak and Ale of Colorado, Inc. WILL NOT be present at this meeting. Change of Corporate Structure - Circle K 949 South Taft Hill Road This item represents a change in corporate structure for Circle K Convenience Stores, Inc., the licensee for the Circle K store. This change of corporate structure was filed directly with the State Liquor Enforcement Division, which has issued a new master file letter indicating the satisfactory results of its background investigation. Approval by the local authority is requested based upon the State's investigation and acceptance of the reported changes. A representative of Circle K Convenience Stores, Inc. WILL NOT be present at this meeting. Authority member Garber made a motion, seconded by Authority member Gadsby, to adopt and approve all items not removed from the Consent Calendar. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. Report of Change of Manager Scout Sixty -Six, 320 North College John Howe, 316 Lynda Lane, explained his duties as manager of the establishment. He noted although he has no prior management experience, he has been an employee of Scout Sixty -Six for the past 4-5 years. Mr. Howe described his plans to avoid future violations of the beer code. He explained the training materials provided to employees of Schrader Oil, the parent company. -2- • • September 7, 1988 Authority member Poncelow made a motion, seconded by Authority member Cooper, to approve the change of manager from Rodney Thompson to John C. Howe at Scout Sixty -Six, 320 North College. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. Registration of Manager Washington's Bar and Grill, 132 West LaPorte Kathleen Brady, 3051 Stover, stated she has been employed as manager of the establishment for approximately four weeks. She described her background in the restaurant business. Ms. Brady spoke of the corporation's policy of not allowing minors in the establishment after 8:00 p.m. She outlined the establishment's guidelines for checking ID's and ensuring that minors are not served. Authority member Cooper made a motion, seconded by Authority member Garber, to approve the registration of Kathleen M. Brady as manager of Washington's Bar and Grill, 132 West LaPorte. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. Iris "I tIRIE 1i1:11*11 Registration of Manager Old Chicago, 147 South College Jeff Schickler, 2101 Sheffield Drive, described his background and his experience with the restaurant/liquor business. He stated he has attended the training program sponsored by the Police Department and indicated he was attempting to schedule a training session at the establishment for other employees. In response to a question by the Authority, Mr. Schickler stated he was not aware that there was an outstanding warrant for his arrest at the time he submitted his application for registration as manager. He stated he has a court date set in Longmont on September 15 to address the matter. He indicated he was making an attempt to clear up any past mistakes and looking toward the future. Authority member Poncelow made a motion, seconded by Authority member Garber, to approve the registration of Jeffery P. Schickler as manager of Old Chicago, 147 South College. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. -3- • 0 September 7, 1988 Final Hearing on Change of Location Pringle Brothers Fine Wines and Spirits, from 2170 West Drake #B7 to 2100 West Drake #11.12.13 David Wood, attorney representing the Pringle Enterprises, Inc., explained that the licensee is moving to a new tenant space within the shopping center. He noted the new location provides a larger storage area, with the retail area remaining approximately the same size. Phil Pringle, 2044 Huntington Circle, co-owner and manager of the establishment, was sworn. He stated the new location is 850 square feet larger, adding approximately 10-15% to the size of the establishment. He stated there would be no substantial changes to the operation of the store. Applicant's Exhibit 1 was offered and identified as a site plan. Mr. Pringle stated the exhibit was a drawing of Drake Crossing Shopping Center and the adjacent Shops at Drake Crossing. He illustrated the change of location from the current tenant space in the Drake Crossing Shopping Center across the parking lot to a space within the Shops at Drake Crossing. Applicant's Exhibit 2 was offered and identified as an interior floor plan of the new location. Mr. Pringle described the layout of the new location. He stated the retail area at the new location is approximately the same size as the current location. Mr. Pringle stated he supervised the circulation of petitions within the defined neighborhood boundaries. He described the instructions given to the seven circulators. He noted approximately 421 signatures were obtained in favor of the change of location. Applicant's Exhibits 3 through 10 were submitted and identified as the petitions that were circulated in conjunction with this application. Because the petitions contained no verification of circulator, the following petition circulators were sworn and testified that they personally circulated the petitions identified as Applicant's Exhibits 3 through 10, that they explained the purpose of the petition, that they gave each individual an opportunity to read the preamble to the petition, that they gave each individual an opportunity to cast either an affirmative or negative vote pertaining to the change of location, and that they confirmed each individual was over the age of 21 and a resident of the neighborhood as defined for the purposes of this hearing. Robert Freeman, 1736C Heritage Circle Laurie Folladori, 1104 1/2 Emigh Paul Hart, 517 North Grant Kurt Heuer, 1736 Heritage Circle David Huber, 519 South Loomis Edgar Krieger, 1917 South Shields Glenda Miller, 1901 Busch Court -4- • • September 7, 1988 David Wood stated the petition contained 421 signatures in favor of the application and 5 against the application. Authority member Garber made a motion, seconded by Authority member Cooper, to approve the change of location for Pringle Brothers Fine Wines and Spirits from 2170 West Drake Road #B7 to 2100 West Drake Road #11,12,13. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. Authority member Poncelow made a motion, seconded by Authority member Gadsby, to adopt the final resolution as presented. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. Show Cause Hearing The Page. 181 North College Melissa Corr, owner, and Jim Corr, manager, were sworn. Mr. Corr stipulated to the charge of serving for after hours consumption. Officer Ernie Tellez was sworn and stated on July 23, 1988 at approximately 2:25 a.m. he received a report from another police officer that he suspected the employees of The Page were consuming liquor after hours. He stated upon entering the establishment, he asked to speak to the person in charge or the manager on duty. He stated Mike Mockler identified himself as the manager on duty. Officer Tellez indicated Mr. Mockler spoke with Detective Landolt about his employment as manager. Detective Paul Landoll; was sworn and stated Mr. Mockler indicated he had been manager for approximately four months. He stated when asked if he had ever registered as manager, Mr. Mockler stated he was not aware of any procedure for registering. Detective Ken Murray was sworn and stated, in an attempt to determine if it would be necessary to have the police officers involved present at this hearing, he called the establishment on August 19th and asked for the manager. He stated a person, who identified himself as Michael, said he was the manager. He noted the individual refused to give his last name. Jim Corr stated that, since the incident on July 23, it has come to his attention that Mr. Mockler has misrepresented himself many times and has recently been fired. He stated Mr. Mockler had presented a different story of the events on July 23 than what was contained in the police report. He stated he was stipulating to the charge of serving for after hours consumption because he has come to distrust Mr. Mockler. Mr. Corr described Mr. Mockler's duties, noting they were not consistent with the -5- • 9 September 7, 1988 duties of a general manager. He stated he was in the process of evaluating Mr. Mockler as a potential manager when this incident occurred. Detective Murray noted past incidents at the establishment involving selling to a minor, failure to file a transfer of ownership, assault on a female on the premises, and a disturbance at the establishment. Authority member Cooper made a motion, seconded by Authority member Poncelow, to find that a violation did occur for failing to register the manager. Authority member Cooper stated he believed there was a technical violation, noting Mr. Mockler has been representing himself as manager. He stated although there may be mitigating circumstances, he believed a violation did occur. He stated he believed the owner has to accept responsibility for the actions of employees. Authority member Garber disagreed, stating the owner has no control over what an employee might say. He stated he could understand how the person left in authority might feel it appropriate to represent himself as manager. Authority member Spaulding agreed with Authority member Cooper, noting Mr. Mockler continued to be employed at the establishment and continued to identify himself as manager following the incident on July 23. Authority member Gadsby stated, in her experience, it is difficult to control employees and what they say. She stated Mr. Corr testified he "read the riot act" to Mr. Mockler and attempted to monitor Mr. Mockler's behavior until the time he was fired. The vote on Authority member Cooper's motion to find a violation did occur for failing to register the manager was as follows: Yeas: Cooper and Spaulding. Nays: Denmark, Gadsby, Garber, and Poncelow. THE MOTION FAILED. Authority member Poncelow made a motion, seconded by Authority member Cooper, to find that a violation did occur for serving for after hours consumption. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. In mitigation, Mr. Corr spoke of attempts that have been made to change the clientele of the establishment and to avoid violations. Authority member Poncelow made a motion, seconded by Authority member Cooper, to levy a one -day suspension, to be served within the next 30 days, for the violation of serving for after hours consumption and that the premises be posted. Yeas: Cooper, Denmark, Garber, and Poncelow. Nays: Gadsby and Spaulding. 10 • 0 September 7, 1988 THE MOTION CARRIED. Show Cause Hearing Panhandlers Pizza, 1220 West Elizabeth Officer Terry Seal was sworn. He stated that on July 22, 1988 he was on patrol in the 1200 block of West Elizabeth when he observed an individual crossing the street carrying a plastic pitcher of beer. He stated that the individual indicated he had obtained the pitcher at Panhandlers Pizza and that he was carrying it home. Officer Seal noted that the individual identified himself as an employee of Panhandlers and that he stated he had not stolen the pitcher, but had obtained it upon ordering and was intending to consume the beer at home. Officer Seal stated that the individual identified himself as Eric Friese. The officer advised Mr. Friese that he was in violation of the open container law and issued him a summons for the open container. Officer Seal stated he then contacted the manager of Panhandlers, Lou Ann Decoursey, who stated that Mr. Friese was an employee of the establishment and that she would recommend termination of Mr. Friese's employment as a result of the incident. Ms. Decoursey indicated to Officer seal that she was aware Mr. Friese had obtained a pitcher of beer and observed him walk toward the front of the establishment, assuming he was going to take a seat in a booth near the front entrance. Officer Seal stated Ms. Decoursey advised him of an interior brick half -wall that blocked her view of the exit so that she unable to observe Mr. Friese leaving the establishment. David Osborne, attorney representing the licensee, cross-examined Officer Seal. Officer Seal testified that Mr. Friese indicated he had obtained the beer from Panhandlers. Authority member Cooper made a motion to find that a violation did not occur and that no further action should be taken. THE MOTION DIED FOR LACK OF A SECOND. Eric Friese, 3501 South Stover, was sworn and stated he is 20 years old and a student at Front Range Community College. He noted he was previously employed by Panhandlers Pizza. Mr. Friese stated he was off -duty on the evening of July 22. He stated he went to Panhandlers to meet some friends and employees and to have some drinks. He stated they ran out of money, and he stated he had some beer in his car and that he would go out to the car, fill up a pitcher, and bring it back into the establishment. He stated he left Panhandlers with an empty pitcher, crossed the street to his car, and filled the pitcher with beer. He stated he was then contacted by Officer Seal. Mr. Friese testified the pitcher was empty when he left the establishment and that the pitcher was taken without the consent of any on -duty employees or the manager of the establishment and in violation of company policy with respect to company property. Mr. Friese stated he told Officer Seal the pitcher belonged to Panhandlers and that the beer was his. He stated he was issued a summons into Municipal Court for the open -7- • • September 7, 1988 container and that he pleaded no contest to the charge and received a $25 fine suspended to a $12 fine with a one-year probation period. Mr. Friese stated he was fired by Panhandlers for removing property without permission. Officer Seal cross-examined Mr. Friese. Mr. Friese maintained that he told Officer Seal the pitcher was empty when he left Panhandlers and that the beer was his. Thomas Myers, 830 Mansfield Drive, was sworn and stated he was an employee of Panhandlers Pizza and a CSU student. He stated he was with Mr. Friese on the evening of July 22. He verified Mr. Friese's testimony regarding the source of the beer. He stated he heard Mr. Friese tell Officer Seal that the pitcher came from Panhandlers but that the beer was not from Panhandlers. Officer Seal cross-examined Mr. Myers. Officer Seal questioned Mr. Myers ability to listen to his conversation with Mr. Friese while Mr. Myers was conversing with other parties. Lou Ann Decoursey, 5115 llth Street, Greeley, was sworn and stated she is an assistant manager for Panhandlers Pizza. She stated that at the time in question Mr. Friese walked away from the service counter with a pitcher of beer, but that she did not observe him leaving the establishment with the pitcher of beer. She stated Mr. Friese was terminated for taking a pitcher from the property. Ms. Decoursey spoke of the training provided to employees concerning liquor laws. She stated the establishment's policies are explained at length to all employees. David Osborne gave his closing remarks, noting there was no eye -witness testimony offered by the Police Department proving that the beer was carried from the establishment. He asked the Authority to find that a violation did not occur. Officer Terry Seal pointed out the discrepancy between statements made by Mr. Friese on July 22 and the statement made to the Authority. He stated, based on Mr.Friese's statements on the evening of the July 22, the establishment should be held responsible for its products and activities. Authority member Garber stated he did not believe the licensee was responsible for the activities of the individuals involved. He stated although he believed the Police Department was proper in bringing this case to the Authority, he could not support finding that a violation did occur. Authority member Denmark stated he did not believe Mr. Friese's story about going to his car to get more beer. Authority member Spaulding agreed with Authority member Denmark, noting she did not understand why anyone would want to drink warm beer that has been in the car. • • September 7, 1988 Authority member Spaulding made a motion, seconded by Authority member Poncelow, to find that a violation did occur in removing beer from the licensed premises. Authority member Cooper stated he did not believe the liquor was being brought from the outside into the establishment. He added he did not believe there was any negligence on the part of the licensee in allowing the beer to be removed from the premises. He stated based on that, he would be able to support the motion. Assistant City Attorney Allin pointed out that the regulation being cited does say "No licensee, manager or agent,... shall permit the removal" (emphasis added). She stated the Authority should consider that language when determining whether or not a violation occurred. She suggested the motion be rephrased to be consistent with the regulation. Authority members Spaulding and Poncelow rephrased the motion to add that the licensee permitted the removal of a fermented malt beverage from the licenses premises. The vote on Authority member Spaulding's motion to find that a violation did occur was as follows: Yeas: Denmark, Poncelow, and Spaulding. Nays: Cooper, Gadsby, and Garber. THE MOTION FAILED TO PASS. Show Cause Hearing Northern Dining and Bar Bazaar, 172 North College Officer Troy Krenning was sworn and stated that on August 3 he was on patrol in the downtown area when he stopped to investigate three cars parked in front of the Northern Dining and Bar Bazaar. He stated he peeked into the window of the establishment, thinking he might find the owners of the vehicles. He stated two men and one woman were inside the bar. Officer Krenning stated the woman had her hand on a cocktail glass and was making the motion of drinking from the glass. He stated he knocked on the window and the three individuals looked toward him. He stated the woman turned toward the men as if to determine what to do and then slid the glass across to the man on the opposite side of the bar who took the glass behind the bar, dumped the contents, and placed the glass in a rack. He stated the other man came to the door and the officer demanded entrance to the bar to further investigate what he had observed. Officer Krenning stated the man verbally resisted, but he was able to gain entrance. He stated he went behind the bar and discovered several glasses put in a dishwasher rack and that one still had condensation and was cold to the touch. He noted there were ice cubes and a liquid in the sink and that it had the odor of an alcoholic beverage. Officer Krenning stated he told the individuals of his observations and the man identified as Phillip Williams appeared to be cooperative. He stated he asked Mr. Williams to step out of the bar to discuss the matter. Officer Krenning testified that upon telling Mr. • 0 September 7, 1988 Williams of his suspicions, Mr. Williams nodded stated he obtained a written statement from acknowledged there was a beer on the bar within he dumped the drink as Officer Krenning entered his head in agreement. He Mr. Williams in which he the woman's reach and that the bar. William Starke, 800 East Lake, licensee, was sworn and cross-examined Officer Krenning. Mr. Starke questioned the accuracy of the time of contact as stated in the police report. Officer Krenning stated he did not question the woman involved because to do so would necessitate reading the woman her rights and he did not intend to press criminal charges against her. Officer Krenning stated he based his case on his observations and the statement made by Mr. Williams. Mr. Starke questioned Officer Krenning's ability to determine what the woman was drinking from outside the window of the establishment. In his closing remarks, Mr. Starke stated that he did not believe there was proof that alcohol was being consumed after hours. He stated although he believes Officer Krenning is an outstanding officer, he did not believe there was an adequate case for this hearing. He asked the Authority to find that a violation did not occur. Officer Krenning pointed out that the burden of proof in this matter is not beyond a reasonable doubt. He stated the proof offered proves that a violation did occur by a preponderance of the evidence. He asked the Authority to consider the totality of the circumstances. Authority member Cooper made a motion, seconded by Authority member Garber, to find that a violation did occur at the Northern Dining and Bar Bazaar, 172 North College. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. In response to a question from the Authority, Officer Krenning recommended a one -day suspension to be held in abeyance for one year. Authority member Poncelow made a motion, seconded by Authority member Cooper, to issue a letter of reprimand to the Northern Dining and Bar Bazaar, 172 North College, for serving for after hours consumption. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. THE MOTION CARRIED. Other Business Authority member Gadsby suggested a letter of concern be sent to Panhandlers Pizza about the brick wall which blocks the view of the entrance. -10- m • 0 September 7, 1988 Authority member Cooper disagreed because he thought any action relating to Panhandlers should have occurred while the licensee was present earlier in the meeting. Authority members discussed whether to request the Police Department conduct an inspection of the premises. It was suggested it would be more appropriate to request that the State field investigator for this area conduct an inspection of the physical premises. Authority member Denmark made a motion, seconded by Authority member Gadsby, to send a letter of concern to Panhandlers Pizza about the physical layout of the establishment leading to other incidents, possibly resulting in future violations of the Beer Code. Yeas: Denmark, Gadsby, Garber, and Spaulding. Nays: Cooper and Poncelow. THE MOTION CARRIED. Adiournment Authority member Gadsby made a motion, seconded by Authority member Cooper, to adjourn. Yeas: Cooper, Denmark, Gadsby, Garber, Poncelow, and Spaulding. Nays: None. ItilU [gill The meeting was adjourned at approximate�0:35 p.m. Chairman /�L�, Secretary -11-