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HomeMy WebLinkAboutLiquor Licensing Authority - Minutes - 06/15/19880 a LIQUOR LICENSING AUTHORITY MINUTES Regular Meeting - June 15, 1988 6:36 P.M. A regular meeting of the Liquor Licensing Authority was held on Wednesday, June 15, 1988, in the Council Chambers of the Fort Collins Municipal Building. The following members were present: Bullard, Poncelow, Spaulding, and Veazie. Authority Members Absent: Cooper and Sommermeyer. Staff Members Present: Kathy Allin, City Attorney's Office Debbie Duval, City Clerk's Office Paul Landolt, Police Department Consent Calendar This calendar is intended to expedite the hearings and allow the Authority to spend its time and energy on the more controversial items on a lengthy agenda. Anyone may request an item on this calendar be "pulled" off the Consent Calendar and considered separately. Items pulled by anyone in the audience, the Authority, or staff will be discussed immediately following the Consent Calendar. Items of extreme controversy will be discussed near the end of the meeting under Pulled Consent Items. I. Consider approving the minutes of the May 19 1988 regular meeting. 2. Change in Trade Name: a. Banana's Restaurant to Southwest Trail, 3500 South College Avenue. 3. Extended Hours: a. Avogadro's Number, 605 South Mason. 4. New Applications (Boundary Hearing): a. Consider accepting a new application for a Hotel -Restaurant license for LAF Enterprises, Inc., dba Toppers, 313 West Drake Road. b. Consider accepting a new application for a Hotel -Restaurant license for JJJ Club, Inc., dba Club Columbine, 1307 East Prospect. Authority member Poncelow pulled Item #1 from the Consent Calendar. Authority member Spaulding made a motion, seconded by Authority member Veazie, to adopt the Consent Calendar with the exception of Item #1. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. June 15, 1988 Pulled Consent Item #1 Authority member Poncelow pointed out that she did not second the vote on the show/cause hearing for Bennigan's. Authority member Poncelow made a motion, seconded by Authority member Spaulding, to approve the minutes for May 19, 1988, as amended. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Expansion of Premises for Sports Page, 181 North College Avenue Melissa Corr, owner, explained the proposed expansion. She stated they would like to add an outdoor patio to the rear of the tavern. Ms. Corr stated the seating could be increased by approximately one third. She explained that a fence surrounding the patio will be erected between six and eight feet in height. In response to a question by the Authority, Ms. Corr stated waitresses will be on duty serving the patrons out on the patio or else patrons will come inside to order at the bar. Ms. Corr pointed out that the patio will be seasonal and used only during the warmer months. Authority member Spaulding stated the proposed expansion will be adding 820 square feet to the licensed premises and added she feels the expansion is substantial. Authority member Bullard stated he feels the expansion would not be considered substantial since the increase in alcohol would be minimal. Authority member Poncelow made a motion, seconded by Authority member Spaulding, to determine that the expansion is substantial. Yeas: Poncelow and Spaulding. Nays: Bullard and Veazie. THE MOTION FAILED. Authority member Poncelow pointed out that the City Code states that square footage and seating capacity are criteria to be considered and commented that she feels the proposed expansion would be a substantial increase. Authority member Veazie made a motion, seconded by Authority member Bullard, to determine that the expansion is not substantial. Yeas: Bullard and Veazie. Nays: Poncelow and Spaulding. THE MOTION FAILED. Authority member Bullard stated to the applicant that they can reapply with a different version of the expansion next month or resubmit the same version next month since new members will be on the board at that time who may feel the expansion is not substantial. He also stated the applicant can petition the needs and desires of the neighborhood with respect to the proposed expansion prior to next month. Ms. Corr requested the opportunity to scale down the proposal for expansion during the hearing. The Authority declined the request. -2- . 4 June 15, 1988 Authority member Veazie stated he would change his vote in order to determine that the expansion is substantial. He pointed out that in the event a new proposal is again determined to be substantial at next month's meeting, the applicant will be delayed an additional month. By that time, the summer months will nearly be over and the patio could not be used very much before colder weather. Authority member Veazie restated the motion to determine that the expansion is substantial and set the final hearing for the July meeting. Authority member Poncelow seconded the motion. Yeas: Poncelow, Spaulding and Veazie. Nays: Bullard. Ms. Corr asked whether she could still resubmit a modified version of the proposal at the next hearing. The Authority stated it was her decision. Special Events Permit for a 3.2% Beer and Liquor permit for Colorado Vocational Association - August,2 and 4 1988 Mr. Lloyd Lawson, executive director of Colorado Vocational Association, explained that two permits are being requested for the annual function this year. He stated on August 2, a barbeque is planned at Corbett Hall. Since CSU elected not to serve any beer, the association decided to apply for the permit. On August 4, the dinner banquet will be held at Lory Student Center. Mr. Lawson stated tickets will be sold for both functions and alcohol cannot be purchased without a ticket. He stated he will be selling the tickets and stated no tickets will be sold to minors. Authority member Poncelow made a motion, seconded by Authority member Poncelow, to approve the 3.2% beer permit for August 2, 1988, and the liquor permit for August 4, 1988. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Special Events Permit (3.2%) for Foothills Sertoma - August 12, 1988 Mr. Dave Phillips, events manager, stated this is the second request for a special events permit at Old Town Square. He stated the event is a fund raiser for Old Town and will feature dancers, a pig roast and beer garden. He explained the training procedures and noted that the beer garden will be roped off. Mr. Phillips stated the members of Sertoma will be checking for ID's at the entrance of the beer garden. Authority member Poncelow made a motion, seconded by Authority member Veazie, to approve the special events for Foothills Sertoma on August 12, 1988. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. -3- June 15, 1988 Transfer of Ownership Cafe Francais. 11 Old Town Square, Suite 120 Mr. Jeff Bedingfield, attorney representing the applicant, explained that the corporation has changed and two new shareholders are listed on the license application. He stated Ms. Nicole Cochard, current owner, will remain as 50% stockholder. It was noted that there will be no changes in operation of the restaurant. Mr. Bedingfield stated a restaurant has opened in Greeley, Colorado, and the applicant has consolidated the wholesale bakery operation in Loveland. Authority member Veazie made a motion, seconded by Authority member Poncelow, to approve the transfer of ownership from Cafe Francais, Inc. to International Bakery and Deli, Ltd., dba Cafe Francais, 11 Old Town Square, Suite 120. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Transfer of Ownership The Jefferson Grill, 200 Jefferson Street Authority member Spaulding abstained from voting on this item but remained at her chair. Mr. Doug DeMercurio, owner, stated he and his wife are the two principal owners. Mr. DeMercurio stated the floor plan will remain the same as it was for the Jefferson Street Station restaurant. He noted, however, that the menu and the operation of the restaurant will be similar to Nate's, another restaurant which he owns. Mr. DeMercurio stated the manager at Nate's will be transferred to this location and a new manager will be registered at Nate's. He stated he will continue to oversee the operations at all of his restaurants. Authority member Poncelow made a motion, seconded by Authority member Veazie, to approve the transfer of ownership from Station Masters, Inc. to Jefferson Grill, Inc., dba The Jefferson Grill, 200 Jefferson Street. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Final Hearing for a Retail Liquor Store License for Lemav Liquors. 737 South Lemav, Suite B-2 Mr. Dave Wood, attorney representing the applicant, called his first witness. Mr Vernon Schilling, was sworn, and stated he is the principal shareholder of the corporation holding the license. Mr. Schilling explained that the business will be owned and managed by family members. He stated no one will be employed at the store other than family members. Mr. Schilling spoke briefly of his background and the financial arrangements for the purchase of the business. He described the location of the store and spoke briefly of the floor plan. Mr. Schilling explained the training procedures and stated he has purchased the ID booklet which gives guidance on the -4- June 15, 1988 proper identification required for each state. He stated his son-in-law will assist in the management of the business and all family members will be required to attend Officer Tellez' training class. Mr. Kurt Faulkner, was sworn and stated he is currently employed as manager of Fashion Bar Men's store. He explained that he will assist in the management of the store. Mr. Faulkner stated he has studied the state and city rules and regulations with respect to alcoholic beverages. He added that he will be attending the training class conducted by Officer Ernie Tellez. Mr. Max Scott, owner of Oedipus, was sworn and stated he was retained to conduct the petitioning survey for a retail liquor store at 737 Lemay Avenue. Applicant's Exhibit 1 was submitted and identified as the summary report. Applicant's Exhibits 2 and 3 were submitted and identified as the petitions circulated on behalf of the application. Mr. Scott described how the survey was conducted in the neighborhood area. He stated 85% of the neighborhood signed in favor of the license application based on needs and desires. Mr. Scott pointed out that this is a very good statistic for a retail liquor store license. Authority member Veazie made a motion, seconded by Authority member Poncelow, to approve the retail liquor store license for Lemay Liquors, Inc., dba Lemay Liquors, 737 South Lemay Avenue, Suite B-2. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Authority member Veazie made a motion, seconded by Authority member Poncelow, to approve the final resolution as presented. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Show/Cause Hearing for Poole's Bar 934 So th may Avenue Mr. Doug Konkel, attorney representing the applicant, stated there is no stipulation to the alleged violation. Officer Robert Brown, officer with the Fort Collins Police Department, was sworn, and called Officer Richardson to testify. Officer Ron Richardson, officer with the Fort Collins Police Department, was sworn, and stated on November 21, 1987, he responded to a call at the University Mall. Upon his arrival, he stated he made contact with six juveniles. He explained that one juvenile reported observing a male subject masturbating in the men's restroom. Officer Richardson stated all six juveniles were instructed to provide written statements as to what they saw, using their own words and without comparing stories. The six juveniles were identified by name and age: Brian Aschermann, 14 Marcello Baca, 14 Donhovan Billingsley, 14 -5- June 15, 1988 Scott Richard Rager, 14 Eric Maxwell, 14 Steven Oliver, 14 Officer Richardson stated on January 24, 1988, he spoke with John Carlsen at the Fort Collins Police Department. In their conversation, he stated Mr. Carlsen denied the incident and stated he is often picked on because he is gay. Officer Richardson explained that one of the juveniles had seen Mr. Carlsen on a later occasion and turned in his license plate number to the police. Mr. Carlsen was then called in to the station for questioning. Mr. Konkel requested to review the written statements given by the juveniles. Having reviewed the documents, Mr. Konkel cross-examined Officer Richardson. During the cross-examination, it was noted that only two of the juveniles have any personal knowledge of a male subject being in one of the stalls in the men's bathroom at University Mall. Officer Richardson explained that another individual was questioned prior to Mr. Carlsen. He stated this person matched a similar description given by the juveniles. It was noted that this individual was released because it was determined that he was not the subject in question. Officer Richardson explained that the main characteristics given by the juveniles to identify the subject were height, weight and balding features with hair on the sides and back of the head. Mr. Konkel requested that the juveniles present to testify be sequestered throughout the remainder of the hearing. It was decided that sequestration would apply to both parties and all witnesses present to testify left the room until called to testify. Mr. Carlsen remained in his seat. Eric Maxwell, was sworn, and stated he is 14 years old. Eric explained that on November 21, 1987, at approximately 3:15 p.m., he and his friends were at the University Mall. He stated he needed to use the bathroom so he went into the men's restroom and used the very end stall. When he was leaving, Eric stated the person in the next stall opened the stall door as he walked by. He stated he observed the person identified as Mr. Carlsen masturbating. Eric stated Mr. Carlsen motioned him to come inside the stall. Eric stated he ran out of the restroom and went to tell his friends. After briefing his friends about the incident, he stated Brian went inside the restroom to look around while the others remained outside the restroom door in the hallway. On January 23, 1988, Eric stated he and his friends were at Foothills Fashion Mall and saw Mr. Carlsen. He explained that Mr. Carlsen made eye contact with them and fled to his car in the parking lot. Eric stated they were able to get the license plate number and reported it to the police. Mr. Konkel cross-examined Eric Maxwell. Eric stated that there were no girls with them the day of the incident. He admitted that he has lied to his parents before. Mr. Konkel asked Eric to describe in detail what he observed in the stall Mr. Carlsen was occupying. Eric stated he is positive that the person in the stall was Mr. Carlsen. He added he identified him based on his balding head and facial features. Eric stated that he has not been able to forget "that face". 10 • 0 June 15, 1988 Brian Aschermann, was sworn, and stated he is 14 years old. On November 21, 1987, Brian explained that he was at the University Mall with five of his friends. He summarized the incident Eric Maxwell stated he observed while using the men's restroom. Brian stated he didn't really believe Eric, so he decided to go into the restroom to look around. He explained that one of the stall doors was open, and the individual identified as Mr. Carlsen was in the stall masturbating. On January 25, 1988, Brain stated he was called to the office at Blevens Jr. High School to identify a subject in a photo line-up. City's Exhibit 1 was submitted and identified as the photo line-up. City's Exhibit 2 was submitted and identified as the written statement by Brian Aschermann identifying Mr. Carlsen as the person in the men's restroom at the University Mall. Brian stated he is positive that Mr. Carlsen was the man he saw in the men's restroom at the University Mall. Mr. Konkel commented that the picture of Mr. Carlsen in the photo line-up is blown up, faded and in the center. He stated he objects on the basis that the line-up shows five other men with full heads of hair and the main characteristic given by the juveniles was baldness. Kathleen Allin stated both exhibits are admissible. The exhibits were received into evidence by the Authority. Mr. Konkel cross-examined Brian Aschermann. Brian admitted to having lied to his parents, teachers and friends. He also stated he was suspended on the last day of school for a prank. Brain stated there were no girls with them on the day they went to University Mall. Mr. Konkel asked Brian to describe in detail what he observed in the stall at the University Mall. He noted that approximately 30 seconds lapsed between the time Eric left the bathroom and when he entered. He maintained that he is positive that Mr. Carlsen is the same man that was in the restroom at the University Mall. Steven Oliver, was sworn, and stated he is 14 years old. On November 21, 1987, at approximately 3:15, Steven stated he was using the pay phone at University Mall when Eric ran up to him and their other friends to tell them of the incident in the restroom. He stated he did not go into the restroom but observed the person identified as Mr. Carlsen leave the restroom. Steven stated he is positive Mr. Carlsen is the same man he saw at the University Mall, although he stated there are no distinguishing characteristics that stand out about him. Mr. Konkel cross-examined Steven Oliver. Steven admitted that he has lied to his parents and teachers. He stated he has been suspended from school for fighting. Steven stated the man leaving the restroom at the University Mall was wearing corduroy jeans, a jacket and white shoes. Mr. Konkel pointed out that all of the other juveniles stated the subject was wearing Stadia brand tennis shoes. Steven also disclosed that the subject went back into the restroom and that he and his friends went to find a security guard. Steven stated at no point did he go into the restroom or personally observe Mr. Carlsen masturbate. He insisted that he never knew Mr. Carlsen was gay. -7- June 15, 1988 Officer Robert Brown, still under oath, reported the events which occurred on November 21, 1987, involving an indecent exposure report at University Mall. On January 4, 1988, he stated he questioned Mr. Carlsen at the Fort Collins Police Department. He summarized that Mr. Carlsen denied the incident and stated he is harrassed because he is gay. Mr. Carlsen informed Officer Brown at that time that there was an incident which occurred at University Mall during the Christmas season where some juveniles tried to push in the bathroom stall door on him. On Jan. 4, Officer Brown took a polaroid picture of Mr. Carlsen and placed it in the photo line-up. Officer Brown explained that three out of four juveniles made a positive identification of Mr. Carlsen from the photo line-up. Mr. Konkel cross-examined Officer Brown. Officer Brown stated there was no conviction established in the Municipal Court hearing. Officer Brown stated, other than this case, he has no knowledge of poor moral character with regard to Mr. Carlsen. Officer Brown explained that an honest effort was made, with the resources available to him, to find photos that looked alike for use in the photo line-up. At the close of the City's testimony, Mr. Konkel made a motion to dismiss the proceeding based on the fact that the Police Department has not shown the burden of proof. In addition, he added that the juveniles' testimony has been conflicting and each one has admitted to lying before. Mr. Konkel closed his comments by emphasizing that there has been no ground established to suspend or revoke the liquor license. Ms. Allin stated the Authority needs to examine whether the conduct as alleged occurred, and if so, decide whether it affects the qualifications of a license holder. The Authority stated testimony from the applicant's side is necessary in order to determine whether the act occurred. The motion to dismiss was denied. Mr. Konkel made a motion to dismiss based on the City's failure to establish the necessary evidence that Mr. Carlsen is an officer, director, or 10% shareholder of People's Bar, Inc. The file was produced and examined to determine whether Mr. Carlsen is listed on the license application. Ms. Allin stated that the Authority can take administrative notice of facts that are clearly within their knowledge. It was pointed out that Mr. Carlsen has appeared before the Authority at prior hearings as an officer, director and stockholder. Ms. Allin stated there is no requirement such evidence be proven. The motion to dismiss was denied by the Authority. Mr. Konkel moved for a continuance on the grounds that he had no opportunity to review the police report on this matter and no knowledge of who the witnesses were going to be testifying at the hearing. In addition, he stated three additional eye witnesses are not present to give their testimony. Mr. Konkel claimed that denial of the motion would be denying him fair opportunity to prepare for his case and a violation of due process. Officer Brown responded stating Mr. Konkel has been given ample time to prepare since the notice of hearing was mailed on March 28, 1988. Ms. in 0 June 15, 1988 business that night. (It was previously established in the record that November 21, 1987, fell on a Saturday.) Mr. Carlsen also stated that he does not recall ever seeing the juveniles that were present to testify. He stated he did not masturbate or expose himself at the University Mall, nor has he ever at People's Bar. Mr. Carlsen went on to explain that he and Mr. LeNorreys are very strict in prohibiting this type of behavior at People's Bar. Mr. Carlsen added that he has never owned Stadius shoes or corduroy jeans. Mr. Konkel again requested to continue the hearing. Ms. Allin stated it is within the Authority's discretion to grant the continuance. Authority member Poncelow made a motion to grant the continuance based on the need to hear additional evidence. THE MOTION DIED DUE TO LACK OF A SECOND. Ms. Poncelow stated that she thought the additional testimony by the other juveniles would strengthen the case. Authority member Spaulding made a motion, seconded by Authority member Veazie, to deny the request for continuance. Yeas: Bullard, Spaulding, and Veazie. Nays: Poncelow. Officer Brown and Mr. Konkel made their closing statements. Authority member Veazie stated he feels the juveniles did see someone in the men's restroom at University Mall but is not convinced it was Mr. Carlsen due to the conflicting testimony from the juveniles. Authority member Spaulding stated she feels the incident occurred but does not feel a misdemeanor offense is enough to suspend or revoke a liquor license. Authority member Poncelow stated she feels the incident occurred. She also stated that she believes the testimony given by the juveniles is credible, yet added that she believes there is no breach of moral character involved. Authority member Bullard commented that he feels the juveniles did see someone in the men's restroom at University Mall but added that he has doubts about their accuracy in the witness identification. He also stated that he does not feel a violation occurred. Authority member Spaulding made a motion, seconded by Authority member Veazie, to determine that no violation occurred. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Other Business Staff recommended rescheduling the July 13 regular meeting since City Council will not be appointing the new members until July 19 and the Authority will be short too many members to hold a meeting. -10- June 15, 1988 Allin stated that disclosure of witnesses is not required and added that there is no provision for allowing a continuance based on Mr. Konkel's request. Authority member Poncelow made a motion, seconded by Authority member Spaulding, to deny the request for continuance. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Mr. Konkel requested that the three witnesses not present to testify at this hearing be subpoenaed. Ms. Allin stated that the request for subpoenas should have been made prior to the hearing. Mr. Konkel argued that he had no knowledge of who the witnesses were in order to make the request. The Authority denied the motion. Mr. Konkel represented that his firm represents Donhovan Billingsley, one of the juveniles involved with this case, in a criminal matter. Mr. Konkel stated he had no knowledge of this fact prior to the hearing since the witnesses were unknown to him. Mr. Konkel requested another continuance to allow the additional witnesses to testify. He added, however, that he would feel compelled to withdraw as counsel and requested the Authority allow him to withdraw at that time. The Authority denied the request to continue the hearing. Mr. John Carlsen, part-owner, was sworn and replied that on November 21, 1987, he did not masturbate in the men's restroom at University Mall. Officer Brown cross-examined Mr. Carlsen. Mr. William LeNorreys, part-owner, was sworn and stated he has known John Carlsen since 1982. He stated Mr. Carlsen is an outstanding citizen in the community and a reputable business owner. He added that Mr. Carlsen's character is such that he would find it impossible to believe that this act ever occurred. Mr. LeNorreys stated their licensed establishment at People's Bar has never had any liquor code violations. Officer Brown cross-examined Mr. LeNorreys. During the cross-examination, Mr. LeNorreys stated he and Mr. Carlsen were together the afternoon of November 21, 1987, at the bar setting up for that evening's business. Mr. Konkel continued his motion for continuance based on the conflicting testimony given by the three juveniles. It was determined that Officer Brown could stipulate to certain facts relating to the three juveniles not present to testify. Officer Brown stipulated to the fact that Donhovan Billingsley could not identify the subject in the photo line-up. Mr. Konkel then requested that he be allowed to present any other evidence which the Authority feels is necessary. Authority member Bullard suggested that Mr. Konkel allow Mr. Carlsen to be questioned by the Authority members. In response to some questions by the Authority, Mr. Carlsen stated that he was in the men's restroom at University Mall around Christmas time last year but does not recall the specific date. Mr. Carlsen added that he is normally at the bar on a Saturday afternoon getting ready to open for 19 e i June 15, 1988 After some discussion, Authority member Veazie made a motion, seconded by Authority member Poncelow, to reschedule the regular meeting in July to July 20. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Authority member Bob Veazie stated he has accepted a position in San Diego, California and will resign from the Authority immediately. Secretary Debbie Duval stated a new representative from the City Clerk's Office will be staffing the board effective next month. Police Report Detective Landolt stated an alleged violation occurred at Tony's Restaurant and Lounge on May 10, 1988, involving an intoxicated person. Authority member Spaulding made a motion, seconded by Authority member Poncelow, to determine probable cause and scheduled a show/cause hearing for July 20, 1988. Yeas: Bullard, Poncelow, Spaulding, and Veazie. Nays: None. Detective Landoll: introduced Ken Murray and explained that he will be assuming the liquor enforcement duties effective next month. Adjournment Authority member Veazie made a motion, seconded by Authority member Spaulding, to adjourn. The Chairman put the motion to vote which was unanimously adopted. The meeting was adjourned at approximately 12:45 a.m. — g"'P, 1-�,P C airman Secretary ova