Loading...
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