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HomeMy WebLinkAboutLiquor Licensing Authority - Minutes - 02/26/1997• 0 A regular meeting of the Liquor Licensing Authority was held on Wednesday, February 26, 1997, in the Council Chambers of the Fort Collins Municipal Building. The following members were present: Haggerty, Oldham, Schroeer, and Wawro. Staff Members Present: Aimee Jensen, City Clerk's Office Rita Knoll Harris, City Clerk's Office Greg Tempel, City Attorney's Office Consent Calendar The Consent 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. Items on the Consent Calendar are (1) routine items; and (2) those of no perceived controversy. Anyone may request that 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. 1. Annroval of the minutes from the February 28, 1996, September 25, 1996, and January 22, 1997 regular meetings. 2. Request from D. Martin Group. Inc.. dba Martin's Martini Bar. to Change its Trade Name to Elliot's Martini Bar. This is a request from D. Martin Group, Inc., the tavern licensee for Martin's Martini Bar on 234 Linden Street, to change the trade name to Elliot's Martini Bar. 3. Registration of Hugo Caballero as manager of Los Tarascos, 626 South College Avenue. Los Tarascos, Inc., the hotel -restaurant licensee for Los Tarascos, is reporting a change of manager. The owner, Hugo Caballero, is replacing Roberto Antonio Barra. February 26, 1997 4. Report of Chance of Corporate Structure for Casa de Los Amigos. Inc.. dba Casa de Los Amigos. Casa de Los Amigos, Inc., the hotel -restaurant licensee for Casa de Los Amigos at 344 East Foothills Parkway is reporting a change of corporate structure. Ross Eldridge is replacing Richard Grauel as Vice -President and Director. Georgieann Eldridge is replacing Shirley Grauel as President. Shirley Grauel is replacing Georgieann Eldridge as Secretary. 5. Report of Change of Corporate Structure for Soho Bowl. Inc., dba Tokyo Bowl and Grill. 3640 South Mason Street. Soho Bowl, Inc., dba Tokyo Bowl and Grill, on 3640 South Mason Street is reporting a change of corporate structure. Kerri Lam is replacing On Ki Angel Cheng as Secretary. 6. Request from Perez Enterprises, Inc., dba Schlotzskv's Deli, 2513 South Shields Street to Change its trade Name to La Ristra Mexican Cuisine. This is a request from Perez Enterprises, Inc., the beer and wine licensee for Schlotzsky's deli on 2513 South shields Street, to change the trade name to La Ristra Mexican Cuisine. Authority member Schroeer made a motion, seconded by Authority member Oldham, to adopt and approve all items on the Consent Calendar. Yeas: Haggerty, Oldham, Schroeer, and Wawro. Nays: None. THE MOTION CARRIED. Deputy City Clerk Jensen informed the Liquor Authority that Saltillo Grill closed February 22, 1997, therefore the manager registration agenda item has been withdrawn. Registration of Martin Noller as Manager of Total #2623, 221 West Prospect, Approved Martin Noller, manager, responded to questions from the Authority regarding his experience with liquor sales. Mr. Noller stated he has spent four months in training with Total and described the training program offered by Total. He stated he has not sold liquor at previous jobs. Authority member Schroeer made a motion, seconded by Authority member Oldham, to approve Martin Noller as manager of Total #2623, 221 West Prospect. Yeas: Haggerty, Oldham, Schroeer, and Wawro. Nays: None. 1YCICILColl cflzr � [ C • February 26, 1997 Show Cause Hearing for Tony's Restaurant and Lounge 224 South College Avenue, Continued to May 28,1997 Jerome Roselle, attorney representing Tony's Restaurant and Lounge, and Caroline Blackwell, attorney representing the Fort Collins Police Department, came forward to introduce themselves. Mr. Roselle detailed his arguments for a motion to continue the hearing until April 23, 1997. He stated the City suffers no prejudice in any way comparable to the prejudice that Tony's would suffer by forcing testimony and giving up fifth amendment rights. He stated any prejudice to the City would consist of memories fading, but that the police reports would alleviate this problem. Mr. Roselle also stated that Tony's has taken numerous steps to improve operations so that something as anomalous as this would not happen again. It was noted that Tony's recently passed a police compliance check. Ms. Blackwell stated the City objects to the motion to continue the hearing and requested the hearing proceed as planned. She noted that Jason Mather, and Dimitrios Antonio Katopodis were present. Mr. Roselle stated that Mr. Mather and Mr. Katopodis they have been advised by their attorneys to plead the fifth amendment. Ms. Blackwell addressed the final point of the motion to continue (failure to timely disclose prosecution witnesses), stating she faxed the list of witnesses she was prepared to call for today's hearing on February 25, 1997 to Mr. Roselle. She stated she is unaware of procedural rules that require the prosecution to identify for the defense any witnesses to be called. Ms. Blackwell stated she faxed the list of witnesses as a courtesy to Mr. Roselle. Ms. Blackwell stated she and Officer Rothschild have provided Mr. Roselle with every report in their possession, as well as a videotape taken the night of the alleged violation. She stated she has not provided Mr. Roselle with her handwritten notes since she believes they are protected by the attorney work product privilege. In response to Authority member Wawro's question, Mr. Roselle stated he requested additional reports on February 20`h and has not received any additional reports other than what was originally sent to Mr. Katopodis from Greg Tempel. Ms. Blackwell stated she prepared the witness list on February 25 and faxed it to Mr. Roselle. Ms. Blackwell noted Officer Rothschild delivered the video and supplemental reports (not previously provided) to Mr. Roselle's office on February 24, 1997. She stated she had not finalized the witness list until February 25, 1997 after conducting extensive interviews with several police officers and verifying witnesses who would be available to testify. Mr. Roselle stated he has not provided a list of witnesses to the prosecution since he is requesting a continuance and that he has not identified all pertinent witnesses, since his investigation is not complete. • • February 26, 1997 Ms. Blackwell stated that Colorado case law clearly shows that there is no constitutional due process violation for an individual to testify at an administrative hearing if there is a parallel criminal proceeding. She stated Mr. Roselle requested a continuance earlier but was denied the request based on the aforementioned reason. Much discussion followed regarding the cases presented by Mr. Roselle as evidence to continue the hearing and the importance of Mr. Katopodis and Mr. Mather's testimony to this hearing. Authority member Wawro made a motion, seconded by Authority member Schroeer, to grant the motion to continue the hearing and subpoenas until May 28, 1997. Yeas: Haggerty, Oldham, and Wawro. Nays: None. Abstain: Schroeer. 10'61:)8VC61111101USY.11331:1111 Authority member Oldham asked Ms. Blackwell if the Authority could continue with the alleged sanitary requirement violations. Ms. Blackwell stated Officer Rothschild has requested that all the violations be heard on May 28, 1997. Show Cause Hearing for Riverside Liquors 315 Riverside, Violation Found of Section 12-47-128(5)(a)(I) CRS Zach Wilson, attorney representing Riverside Liquors, approached the podium and introduced himself Caroline Blackwell, attorney representing the Fort Collins Police Department, stated that the Authority found probable cause at the October 23, 1996 meeting to conduct a show - cause hearing. She stated it is alleged that on September 3, 1996 at approximately 11:30 p.m. an employee of the licensee, William Youngclaus, sold a 32 ounce beer to Curtis Edwards, a visibly intoxicated person. Chairperson Haggerty asked Mr. Wilson if there is an admission of the violation. Mr. Wilson stated the licensee pleads not guilty. Ms. Blackwell called Officer Kim Cochran to testify. Officer Cochran was sworn. Officer Cochran gave a summary of her employment history and stated she was working the night of the alleged violation. She stated she received a welfare check call from dispatch and responded to the area. Officer Cochran detailed her observations of Curtis Edwards, stating she observed him entering Riverside Liquors and saw the clerk, Mr. Youngclaus, put a 32 ounce bottle in a bag and saw the exchange of money. She testified that Mr. Edwards had a standing sway, his eyes were extremely blood shot and watery, his speech was slurred, and there was a smell of alcohol on his breath and on his person. Officer Cochran continued her testimony regarding Mr. Edwards condition and her contact with him. Mr. Wilson objected to Ms. Blackwell's line of questioning as hearsay. Mr. Tempel overruled Mr. Wilson's objection stating hearsay is admissible in this hearing. E • February 26, 1997 Officer Cochran continued with her testimony, detailing Mr. Edwards appearance. She stated she requested Officer Christensen to respond to her location because he had a preliminary breath tester to determine alcohol content, but the subject refused to have the test done. Officer Cochran testified that Mr. Edwards stated he was drunk, but was o.k. to care for himself In response to Ms. Blackwell's question, Officer Cochran stated that she had at no time threatened or intimidated Mr. Edwards. Testimony continued regarding Officer Cochran's credentials as a DUI officer. Ms. Blackwell asked Officer Cochran what she would have done if she had contacted this subject driving during a DUI check. Mr. Wilson objected stating that a different standard is used in evaluating subjects in a DUI check. Mr. Tempel overruled Mr. Wilson's objection. The Authority requested Ms. Blackwell continue with another question. In response to a question from Ms. Blackwell, Officer Cochran stated she believed that Mr. Edwards was impaired and intoxicated. She stated that the subject could not have sufficiently disguised his level of intoxication to the Riverside Liquors clerk. Officer Cochran testified that she did not charge Mr. Edwards with a criminal violation and was henot taken into custody. Mr. Wilson cross-examined Officer Cochran. In response to Mr. Wilson's questions, Officer Cochran detailed her initial contact with Mr. Edwards. She stated she had made contact with the subject within 3-4 minutes of the call coming into dispatch. Officer Cochran testified that it did not look like the subject was dancing as he proceeded down the street. She described the layout of the store, stating she did not see Mr. Edwards provide the store clerk with money. She stated she contacted Mr. Edwards immediately outside the store and was given consent to search the bag. Officer Cochran stated she had no contact with Mr. Edwards prior to this incident and that Mr. Edwards mentioned he was staying with his brother, but lived in another state. She stated Mr. Edwards was never in custody during this contact and that this was purely a welfare check. Officer Cochran testified that Mr. Edwards became increasingly agitated as this contact progressed, and after determining that he was able to care for himself, she allowed him to walk away. In response to questions from the Authority, Officer Cochran stated she did personally examine the content of the bag Mr. Edwards had brought out of Riverside Liquors. She stated she did not interview the store clerk, Mr. Youngclaus, but only issued him a citation, as Officer Christensen had talked to him. Officer Cochran stated, in her opinion, that Mr. Edwards was intoxicated. Officer Cory Christensen was called to testify and was swom. Officer Christensen detailed his employment history and credentials as a police officer. He described his actions upon arrival at Riverside Liquors and stated he did not question Mr. Edwards, that he was there only to administer the PBT (preliminary breath test). Officer Christensen stated Mr. Edwards speech was slurred and his balance poor. He stated Mr. Edwards • February 26, 1997 looked like a transient. Officer Christensen stated that he did not at any time threaten or intimidate Mr. Edwards. Officer Christensen stated he believed that Mr. Edwards could not have hidden his level of intoxication in the store. Mr. Wilson cross-examined Officer Christensen. Officer Christensen stated he did not make the decision to release Mr. Edwards. He stated he is not involved in educating liquor stores regarding liquor policies and violations of liquor laws, other than to direct them to available resources. Officer Christensen stated he was not aware of any policies or programs within the Fort Collins Police Department regarding liquor sales to transients. He stated he was not aware of any officers contacting liquor store owners regarding the discontinuance of selling large bottles of beer. In response to questions from the Authority, Officer Christensen detailed his conversation with Mr. Youngclaus. In response to a follow up question from Ms. Blackwell, Officer Christensen described what protective custody is and when it is applicable. Mr. Wilson briefly stated, as a preface to following testimony, that Riverside Liquors has been contacted, in the past, by officers of the Fort Collins Police Department requesting that they discontinue the sale of large liquor bottles, 32 ounce plus sizes in an attempt to discourage the congregation of transients. Mr. Wilson called William Youngclaus to testify. Mr. Youngclaus, 925 Columbia Road, was sworn. He detailed his employment history and stated he is T.I.P.'s certified. He described how he determines if a customer is intoxicated. Mr. Youngclaus continued his testimony with a description of events on September 3, 1996, stating Mr. Edwards did not stagger while in the store nor was his speech slurred. In response to cross-examination by Ms. Blackwell, Mr. Youngclaus stated he became T.I.P.'s certified in June 1996. Mr. Wilson called Art Edwards to testify. Mr. Edwards, 413 13a', Wellington, Colorado was sworn. He stated Curtis Edwards is his brother. He stated Curtis lives in Austin Texas in the winter and lives in Colorado in the summer. Mr. Edwards stated Curtis has not been able to hold a full-time job continuously and prefers to sleep outside. He stated he was with Curtis from 7:00 p.m. to 10:00 p.m. the evening of the alleged violation and that Curtis had consumed only one beer while he was with him. He stated Curtis appeared sober when he left Timothy Leeman's home. In response to Ms. Blackwell's cross-examination, Art Edwards stated he did not see Curtis after 10:00 p.m. that evening and that Curtis drinks daily. In response to a question from the Authority, Art Edwards stated Curtis did not finish high school due to problems with drugs and alcohol. • • February 26, 1997 Mr. Wilson called Timothy Leeman to testify. Mr. Leeman was sworn and stated he resides at 403 Riverside and has known Art Edwards for 5-6 years. Mr. Leeman described his encounter with Curtis on September 3, 1996 at his home and that he did not think Curtis was intoxicated when he left his home. In response to Ms. Blackwell's cross-examination, Mr. Leeman stated he did not see Curtis Edwards after he left his home around 10:00 p.m. Mr. Wilson called Michael Bonin to testify. Mr. Bonin was sworn and stated that he resides at 4431 Waterleaf Court. Mr. Bonin detailed his interest in Bonin Investments and stated he is the manager of Riverside Liquors. He described the training program for employees at the liquor store. Mr. Bonin stated his store has a policy limiting transients to five minutes in the store and that they do not want to gain a reputation as a transient hang-out. He stated Officer Horton approached him about removing particular bottles of beer for sale. In response to questioning by Ms. Blackwell, Mr. Bonin stated he has not seen Curtis Edwards intoxicated. In response to questions from the Authority, Mr. Bonin stated Mr. Edwards came in to the store the next day to discuss the events on September 3, 1996 and described the one time he refused to sell Mr. Edwards liquor. Mr. Tempel recommended the Authority allow brief closing arguments prior to determining if a violation occurred. Ms. Blackwell stated that the issue before the Authority is if Mr. Edwards was visibly intoxicated. She stated two trained officers, experienced in identifying visibly intoxicated individuals and that witnesses presented by the defense could not testify to what Mr. Edwards did after 10:00 p.m. Ms. Blackwell requested the Authority weigh the credibility of the witnesses before them. Mr. Wilson stated that the prosecution has not established by a preponderance of the evidence that Mr. Curtis Edwards was visibly intoxicated. Mr. Wilson summarized testimony of defense witnesses. Mr. Tempel advised the Authority that the standard of proof is on the preponderance of the evidence. Authority member Wawro made a motion, seconded by Authority member Oldham, to find that Riverside Liquors did violate Section 12-47-128(5)(a)(I), C.R.S. (sale to a visibly intoxicated person) on September 3, 1997 at approximately 11:47 a.m. Yeas: Haggerty, Oldham, Schroeer, and Wawro. Nays: None. THE MOTION CARRIED. • 0 February 26, 1997 Ms. Blackwell stated the Police Department's recommendation for a penalty is a 15 day suspension with 5 days actually served, one of which would be served over a Tuesday, and the remaining 10 days held in abeyance for one year. Lisa Ann Richards Bonin, 4431 Waterleaf Court, Fort Collins, Colorado, was sworn. Ms. Bonin stated she is 5 1 % owner in Bonin Investments, Inc. and described her duties with the corporation. She stated Riverside Liquors has never received a liquor violation and testified to the financial impact a 15 day suspension would have on business. In response to questions from the Authority, Ms. Bonin stated they have instructed their clerks to increase efforts in determining intoxication levels of customers and to conduct their own compliance checks. Ms. Blackwell stated the penalties proposed are based on State guidelines for first time offenders. Authority member Haggerty made a motion, seconded by Authority member Wawro, to impose a 14 day suspension with 9 days held in abeyance for one year and 5 days served consecutively to include a Tuesday starting April 14, 1997 through April 18, 1997 with the premises to be posted the entire 14 days. Authority member Oldham amended the motion, seconded by Authority member Wawro to impose a 15 day suspension with 3 days to be served on a Tuesday, Wednesday, and Thursday within 45 days of February 28, 1997 and 12 days held in abeyance for 1 year and posting to occur for 15 days. Notification is to be given in writing to the City Clerk's office prior to suspension being served. Yeas: Haggerty, Oldham, and Wawro. Nays: None. THE MOTION CARRIED. Police Report Officer Rothschild stated seven liquor licensed establishments failed a recent compliance check and suggested the Police Department pursue stipulation agreements before the Authority sets dates for show cause hearings. The Authority agreed to this course of action. Officer Rothschild stated he will present any stipulation agreements to the Authority at the next meeting. Adjournment Authority member Wawro made a motion, seconded by Authority member Oldham, to adjourn. Yeas: Haggerty, Oldham, and Wawro. Nays: None. The meeoN adjourned at 10:55 p.m. K ' Chairperson