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Minutes - Beverage Licensing - 8/17/2005CITY OF BOULDER BEVERAGES LICENSING AUTHORITY ***MINUTES*** WEDNESDAY, AUGUST 17, 2005,1:00 P.M. BOULDER CITY COUNCIL CHAMBERS MUNICIPAL BUILDING - 2°d FLOOR 1777 BROADWAY, BOULDER, COLORADO NAME OF BOARD/COMMISSION: Beverages Licensing Authority DATE OF MEETING: August 17, 2005 NAME/TELEPHONE OF PERSON PREPARING SUMMARY: Mishawn J. Cook - Licensing Clerk (303-441-3010) NAMES OF MEMBERS, STAFF, AND INVITED GUESTS PRESENT: Board Members: Priscilla Corielle, Cam Marshall, and Brett Parnes. Staff Present: Sandra Llanes, Assistant City Attorney, Ann Large, Deputy City Clerk, and Mishawn Cook, Licensing Clerk. QUASI-NDICIAL MEETING OUTLINE OF AGENDA 1. Roll Call of Beverages Licensing Authority (BLA) Roll call was taken. Three Authority members were present (Chair Gowen and Member McMurray being absent). There was a quorum. Sandra Llanes reminded the Authority that, as only 3 Members were present, a unanimous vote was required for each vote of the Authonty. Member Mazshall asked Ms. Llanes what would occur if there was not a unanimous vote, and Ms. Llanes commented that the Authority could give the applicant the option on how to proceed, as to whether to continue their hearing or the Authonty could discuss how to process if that occurred. Member Parnes asked if Ms. Llanes' answer would apply to show causes also, and Ms. Llanes commented that she would have to complete some research to address that quesrion for the Authority. Approval of Minutes - July 20, 2005 Member Mazshall moved, seconded by Parnes, that the Authority approve the minutes as submitted. Motion approved 3:0. Approval of Hearing Conductor Assignments for this hearing After brief conversation among the Authority membets and Mishawn Cook regazding the identity of the actin~ vice chair who will act in the absence of Tim McMurray who is the designated vice-chair, Member Marshall moved, seconded by Parnes, that the Authority designate Member Corielle as acting vice-chair for the purpose of acring as hearing conductor for both Chair Gowen and Member McMurray assigned agenda items at this hearing and for signature on documents on behalf of the Authonty for this hearing. Motion approved 3:0. Member Corielle requested public comment as to the BLA Final Minutes Page 1 of 7 hearing conductor assignments on this agenda, and hearing none, proceeded with the next agenda item. 2. Matters from the Boulder Police Department (BPD). Officer D. J. Smith and Officer Carlene Hofinann from the BPD advised the Authority that approximately 95% of liquor establishment inspections have been completed by the BPD and that the BPD used their officer trainees for those inspections. Officer Hofinann notes that several licensees did not have the required licenses and signs posted. Officer Hofinann noted this type of difficulties with the following licensees: Briar Rose Bed and Breakfast, St. Julien Hotel, Antica Roma, and the most difficult problem was with the licensee, L'Absinthe, as L'Absinthe told the officer trainee that they needed to return during the day for the inspection. Officer Cazlene Hofinann reported returning the next day to inspect L'Absinthe and had a conversation with the manager regarding obstruction and the requirement that a licensed premise must be made available at all times to law enforcement officers. Officer D. J. Smith advised the Authority that the officer trainees have 10 or more establishments to complete each night, among other trainee duties, so timing of the inspections is never designed to create problems for licensees, instead arrival by officer trainees at licensed establishments occurred at the only dme the trainees had due to their schedule. Member Corielle commented that the BPD needs licensee cooperation because BPD resources aze limited. 3. Matters from the Responsible Hospitality Group (RHG). Mishawn Cook commented to the Authority that she did not anticipate the attendance of Beth Smith, Chair of RHG, at this hearing as Ms. Smith had sent an earlier email advising her absence at this hearing, but that the Authority members could review Ms. Smith's email; such email is in the BLA's packet under agenda item 3. Member Corielle inquired if Ms. Smith's email was available to the public, and Ms. Cook advised that the email was both in the BLA member's packets and in the publicly available copy of the BLA packet in the City's Central Records department. 4. Show Cause Hearing concerning an April 22, 2005 violation and whether the Hotel- Restaurant type liquor license held by Empire Crabhouse, LLC d/b/a Jax Fish House, 928 Pearl Street, should be suspended or revoked. Sandra Llanes advised the Authority regarding the Authority's earlier question during discussion of agenda item 1 as to show causes that the Authority must also have a unanimous vote by 3 members for show causes, and if the Authority did not have 3 affirmative votes for a show cause, then the show cause would be deemed dismissed. In reply to a question by Member Corielle regazding what would occur on applications (not show causes) if a 3 member unanimous vote was not reached, Ms. Llanes again advised the Authority that applicants would have the option to bring their applications back to the Authority to be heard in front of the whole 5 member BLA at a later heating. Member Corielle was the designated hearing conductor for this show cause matter concerning Jax Fish House in Member McMurray's absence. Bob Keatley appeared on behalf of BPD. Dave Query, managing member of the LLC licensee, and Dana Faulk, manager with the licensed premise, were each sworn in and testified regarding mitigation factors for this violation. Dave Query confirmed ageement to stipulate to the facts on this violation and agreed to waive reading of procedures. Member Marshall moved, seconded by Parnes, to accept the stipulation to the facts in this matter. Motion approved 3:0. Dave Query provided a bound copy of licensee's newsletters and pre-shift notes that was accepted into the record by the Authority as an exhibit. Mishawn Cook commented to the Authority that she will redact out confidential information contained BLA Final Minutes Page 2 of 7 in the exhibit prior to entering it into the Authority record. When requested by the Authority, there was no public comment on this matter. Dave Query commented that he felt it contradictory that licensees faced stiff penalties for sernng underage persons, but that the BPD would not respond if a person who is underage tries to use a fake ID at a licensed establishment, and he suggested that each underage person who presents a fake ID should be arrested by the BPD. Member Mazshall suggested that the Authonty take Mr. Query's comments and materials presented at this hearing under advisement. Member Mazshall moved, seconded by Paznes, to set the penalty for this violation at 4 suspension days with 10 days held in abeyance. Motion approved 3:0. Member Parnes moved, seconded by Mazshall, to accept the licensee's requested suspension days of September 4, 2005 to September 7, 2005. Motion approved 3:0. 5. Show Cause Hearing concerning a June 18, 2005 violation and whether the Retail Liquor Store type liquor license held by McElweida, Inc. d/b/a Harvest Wine and Spirits, 3075 Arapahoe Avenue, should be suspended or revoked. Member Parnes was the hearing conductor for this matter. Bob Keatley appeazed on behalf of the BPD. Richard Van Sant, manager of this licensee, was sworn and testified as the mitigating factors for this violation. Mr. Van Sant advised stipulation to the facts for this violation and agreed to waive reading of the procedures. Member Paznes, seconded by Marshall, moved to accept the stipulation to the facts. Motion approved 3:0. Sandra Llanes clarified that, despite the fact that Mr. Van Sant was not managing the premise when the last licensee violation occurred, since the violation was in the last five years, it should be associated with the licensee corporation and not management, thus the violation could be considered as an aggravating factor. Member Parnes, seconded by Mazshall, moved to set the penalty for this violation at 2 days served with 7 days held in abeyance. Motion approved 3:0. Member Parnes moved, seconded by Corielle, to accept the licensee's requested suspension days of September 12, 2005 and September 13, 2005. Motion approved 3:0. 6. Show Cause Hearing concerning a June 18, 2005 violation and whether the Hotel- Restaurant type liquor license held by Burnt Toast, LLC d/b/a Burnt Toast, 1235 Pennsylvania Avenue, should be suspended or revoked. Member Corielle was the designated hearing officer for this matter. Bob Keatley appeazed for the BPD in this matter. Ellen Dale and Kerry Kring, both manager/members of the LLC licensee, were sworn and testified as to mitigating factors for this violation. Kerry Kring agreed to stipulate to the facts of this violation and agreed to waive readingg of the procedures. Member Mazshall, seconded by Parnes, moved to accept the stipulation to the facts. Motion approved 3:0. Kerry Kring provided copies of BPD LESS class attendance certificates that were accepted as an exhibit by the Authority. Member Mazshall moved, seconded by Parnes, to set the penalty for this violation at 3 days served with 11 days held in abeyance. Motion approved 3:0. Member Marshall moved, seconded by Parnes, to accept the licensee's requested suspension days of September 12, 2005 to September 14, 2005. Motion approved 3:0. 7. Show Cause Hearing concerning a June 18, 2005 violation and whether the Hotel- Restaurant type liquor license held by Red Robin West, Inc. d/b/a Red Robin Gourmet Burgers & Spirits, 2580 Arapahoe Avenue, should be suspended or revoked. Member Corielle was the designated hearing conductor for this matter in Chair Gowen's absence. Bob Keatley appeazed on behalf of the BPD in this matter. Jon Stonbraker, Esq. appeazed as attorney for this licensee. Paul Crews, general manager for the licensee, was sworn and testified as to mitigating factors for this violation. Licensee stipulated to the facts of the violation and agreed to waive reading of the hearing procedures. Member Marshall, seconded by Parnes, moved to accept the stipulation of facts. Motion approved 3:0. Mr. Stonbraker confirmed with the Authority that they received prior to this hearing BLA Final Minutes Page 3 of 7 a co y of licensee's alcohol training materials that were included in the BLA acket. Mr. Stonbraker requested on behalf of the licensee, per State Regulation 47-604c2, a warning as penalty for this violation and the Authority declined his request. Member Parnes moved, seconded by Marshall, to set the penalty for this violation at 3 suspended days with 11 days held in abeyance. Motion approved 3:0. Mr. Stonbraker presented a verbal motion (and was prepared to provide a wntten motion to the Authonty of same) to be allowed to pay a fine to lieu of days suspended as penalty for this violation. Member Marshall moved, seconded by Parnes, to deny the motion to be allowed to pay a fine in lieu of days served. Motion denied 3:0. Member Parnes then moved, seconded by Marshall, to accept the licensee's requested suspension days of September 12, 2005 to September 14, 2005. Motion approved 3:0. 8. Show Cause Hearing concerning a June 18, 2005 violation and whether the Hotel- Restaurant type liqunor license held by Sawaddee Enterprise, Inc. d/b/a Sawaddee Restaurant, 1630 30 Street, should be suspended or revoked. Member Mazshall was the designated hearing conductor for this matter. Both Mutjarin Glimchit and Nimmazatee Neamthed from this former corporate licensee, were sworn in and testified as to mitigation in this matter. Bob Keatley appeared on behalf of the BPD and stated that this licensee is no longer operating this restaurant. Licensee sfipulated to the facts of this violation and agreed to waive reading of the hearing procedures. Member Corielle moved, seconded by Parnes, to accept the stipulation to the facts. Motion approved 3:0. Sandra Llanes advised the Authority that the past practice of this board has been to impose a violation penalty and then suspend such imposed penalty (along with suspending any fine in lieu imposed). Mishawn Cook explained the circumstance of the transfer of ownetshiQ resulting in the violating licensee no longer operating this restaurant at the time of this hearing. Bob Keatley advised the Authority that, if a penalty was imposed by the Authority, then it would be reported to the State Authority and would be on record if this licensee were to apply for another liquor license. Member Corielle moved, seconded by Parnes, to set the penalty for this violation at 5 days served with 9 days held in abeyance. Motion approved 3:0. Member Parnes moved, seconded by Corielle, to suspend the penalty of 5 days served for this licensee. Motion approved 3:0. Bob Keatley then advised the Authority that Officer Carlene Hofmann of the BPD asked to be recalled by the Authority. Officer Hofinann's request was granted and Officer Hofinann then addressed issues raised by Dave Query during agenda item 4.Officer Hofmann clarified that it is not illegal under State law for a minor to use their own legal ID to try to obtain alcohol. Both Officer Hofinann and Officer D.J. Smith confirmed that the BPD will respond and cannot refuse to resppond to ID disputes. Sandra Llanes confirmed that, as a city prosecutor, fake ID chazges aze taken seriously and pursued by the city against minors who try to use fake IDs to gam entry into licensed premises. Member Marshall commented that some outreach by the BPD maybe in order. Officer Hofinann stated that Officer D.J. Smith will provide an update, as she will not be at the next BLA meeting, on the results of the BPD conversations with Jax Fish House. 9. Public Hearing and Consideration of a Junk 30, 2005 application from Jus' Burritos, LLC d/b/a Jus' Burritos, 1116 13t Street, Mary Franco, 3137 Stevens Circle North, Erie, CO, Owner, for a Transfer of Ownership of aHotel-Restaurant type liquor license. Member Corielle was the designated hearing conductor for this matter in Member McMurray's absence. Mary Franco, sole manager and member of the LLC applicant, was sworn in, testified regarding this application, and confirmed under oath completion of the rec(uired posting for 10 days of the proposed licensed premise. Member Corielle read heanng procedures to this applicant. When Member Corielle inquired if there were any ex-pazte communications on this matter, Member Marshall stated that he had read an article in the Daily Camera regarding this premise and noticed that, according to the BLA Final Minutes Page 4 of 7 article, the applicant was currently operating with sales of alcohol. Mishawn Cook confirmed that this applicant applied for and was ganted a temporary City liquor license to operate during the transfer process. Sandra Llanes commented that Member Mazshall should consider if reading the newspaper article would make it impossible for him to remain impartial in consideration of this application. Member Mazshall stated that he could maintain his impartiality in considenng this application. No third parties requested interested party status when the Authority requested to be notified of such parties. Sandra Llanes inquired with Ms. Franco about her responses to the city application questions that she would not have live music or entertainment, and Ms. Franco confirmed that she would not. When public comment was requested, both Jan Otto (who asked if a city patio lease has been obtained by applicant) and Lisa Spaulding (who expressed concerned with monitoring the patio, but favored this applicant) were sworn in and testified in this matter. Member Marshall moved, seconded by Pames, to approve this application for transfer of ownership of ahotel-restaurant liquor license. Motion approved 3:0. 10. Public Hearing and Consideration of a July 5, 2005 application from The Bouldering Garden, LLC d/b/a The Spot Bouldering Gym (the Spot Cafe), 3240 Prairie Avenue, Daniel Howley, 2030 Dartmouth Avenue, Managing Member, Ashley Woods, 2409 Keystone Court, Member, Patricia Howley, 4 Harvard Street, Port Jefferson Station, NY, Member, and 23 Additional Members each owning under a 10% Interest, for a New Beer and Wine type liquor license. Member Paznes was the designated hearing conductor for this matter. Both Corinne Miller, manager at the proposed licensed premises, and Daniel Howley, managing member of the LLC applicant, were sworn m, testified regazding this application, and confirmed under oath the required posting for 10 days of the proppoosed licensed premise. Member Parnes read the hearing procedures to this applicant. There were no conflicts of interest or ex-parte communications reported by the BLA members. No third parties requested interested party status when the Authority requested to be notified of such parties. The Authority confirmed that the licensed premise will only consist of the second floor cafe area and Mr. Howley confirmed that patrons who drink even one alcoholic drink will not then be allowed to use the work-out or climbing equipment. Both Members Mazshall and Corielle conversed with Mr. Howley regazding the results of his background check. There was no public comment provided in this matter when requested by the Authority. Mr. Howley commented that having the licensee show cause agenda items occur before the applications was very educational for new applicants. BLA members commented that they thought the agenda order for this hearing worked well. Member Pames moved, seconded by Marshall, to approve this application for a new beer and wine liquor license. Motion approved 3:0. 11. Matters from the Licensing Clerk. a. Set neighborhood boundaries for the September 21, 2005 BLA hearing. Applicant: International Cuisine, LLC Trade Name: Saffron Indian Cuisine Location.• 1617 Peazl Street, Suite 100, Boulder, CO 80302 License Type: A New Hotel-Restaurant type liquor license Authority Defined Neighborhood North Boundary: Iris South Boundary.• Aurora Extended West Boundary: City Limits East Boundary: 30th BLA Final Minutes Page 5 of 7 Member Marshall moved, seconded by Parnes, to accept the above boundaries as the designated neighborhood for this application. Motion approved 3:0. 12. Matters from the Assistant City Attorney. Mishawn Cook mentioned to the Authority that a copy of Sandra Llanes' memo was provided to all members at the hearing, will be entered mto the BLA packet as an exhibit, and that a copy of the same memo will be mailed to Chair Peter Gowen and Member Tim McMurray in their absence. Sandra Llanes commented briefly on the points of the memo and stated that the full Authority could discuss the memo at next month's hearing. Member Mazshall commented that he felt the recommendations would give the BLA more tools with alcohol licensing. Member Corielle commented that she would like to be given the opportunity to read the memo more closely. 13. Matters from the Chair and Members of the Authority. a. Debriefing from this hearing. Member Marshall raised the letter and article from Jack Lacy provided to the Authority in this month's packet. Member Mazshall commented that the Authority addressed in their deliberation on the Wines Plus application that there was not substantive evidence presented by opponents that the approval of another retail liquor store license would increase the need for police in that azea. Member Parnes commented that the omission of such evidence seemed to be the fatal flaw in the opponent's case and, that if the opponent's had provided that evidence, the Authority would have been on very firm ground on a license denial. Mishawn Cook commented that she has heazd that the BPD has come forwazd in prior years with evidence to BLA that, due to undue concentration, if the Authority approved a certain license, then the BPD would require additional police resources to handle that new licensee. Member Parnes commented that the way that the State Regulation is written is that the BPD could appeaz at hearing or provide written evidence to the Authority on undue concentration, and that, during the Wines Plus hearing, the opponent's attorney could have provided such evidence and he did not. Member Mazshall questioned Mishawn Cook as to if the BPD is informed of all liquor applications, and Ms. Cook commented that notice of applications is provided to the BPD, Fire, Sales Tax, and Environmental Enforcement in every case at the time or soon after the applications aze received. Member Corielle commented that she thought that citizens were misinformed about the scope of BLA powers and that some concerns would require changes of state law. Member Parnes commented that if an opponent's best argument against the approval of a license is undue concentration then it is an opponent attorney's burden to provide evidence to that effect. Member Corielle commented that she thought that they could request BPD's comments in such instances. Member Parnes stated that he did not think that it was the BLA's role to seek out opposition and Member Corielle replied that the BLA is convened to address community health and safety concerns with alcohol. Member Marshall commented that he wanted to ensure that there was not a flaw in BLA procedures as to undue concentration, and Member Parnes replied that he thought the deficiency here was as above discussed. b. Other Matters from the Chair and Members of the Authority. No other matters were raised by the Authority members. BLA Final Minutes Page 6 of 7 ADJOURNMENT Acting Vice-chair Corielle advised that the Authority should adjourn, thus, the hearing was adjourned at 3:32 PM. TIME AND LOCATION OF ANY FUTURE MEETINGS, COMMITTEES OR SPECIAL HEARINGS 1:00 PM - 3'~ Wednesday of Every Month in City Council Chambers, except December 2005 meeting shall be on the second Wednesday of that month. Attest: Approved: ~% Mishawn J. Cook, Licensing Specialist Peter Go ,Chair BLA Final Minutes Page 7 of 7