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Minutes - Beverage Licensing - 9/21/2005CITY OF BOULDER BEVERAGES LICENSING AUTHORITY ***MINUTES*** WEDNESDAY, SEPTEMBER 21, 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: September 21, 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, Peter Gowen, 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 ca11 was taken. Four Authority members were present (Member McMurray being absent). There was a quorum. Approval of Minutes - August 17, 2005 Member Corielle moved, seconded by Parnes, to approve the minutes as submitted. Chair Gowen abstained from the vote as he was not present at the August 17, 2005 BLA hearing Motion approved 3:0. Approval of Hearing Conductor Assignments for this hearing Mishawn Cook reminded the Authority and the audience that, per hearing conductor procedures and since Member McMurray was not present at today's hearing, McMurray's hearing conductor assigunents would revert to Chair Gowen. Chair Gowen requested public input on the hearing conductor assignments, and when none was received, opened this matter to a vote. Member Parnes moved, seconded by Mazshall, to accept the hearing conductor assignments listed on today's agenda. Motion approved 4:0. BLA Final Minutes Page 1 of 9 2. Matters from the Boulder Police Department (BPD). Officer D. J. Smith from the BPD appeazed and stated that he did not have new items, but updated the Authority on comments made during the Jax Fish House show cause last month. Officer Smith stated that he and Officer Carlene Hofrnann had a discussion with BPD dispatch immediately after last month's hearing and in that meeting confirmed that BPD dispatch can only decline to send BPD officers to respond to a requesting for assistance at a residence or business in the city of Boulder in extraordinary circumstances, such as if 100 phone calls requesting officer dispatch are received in a single day. Officer Smith advised the Authority that BPD dispatch reviewed their files for the Jax Fish House address, and discovered that BPD officers have only responded to Jax Fish House's address 3 times in the past yeaz and that those calls originated from Jax's alarm service and not from Jax Fish House itself. In addition, Officer Smith and Officer Hofinann reviewed their records for the past 2 years, and confirmed that Jax Fish House has not turned in any fake IDs into the BPD for the last 2 years. Member Mazshall asked Officer Smith if he has had an opportunity to talk to Dave Query from Jax as a follow-up to last month's hearing. Officer Smith responded that he had not, but that the two BPD officers assigned to Pearl Street Mall have and those officers have explained to Jax's personnel BPD policy on officer response and turning in fake IDs. Officer Smith stated that to the time of the hearing, the BPD has still not received any calls for service nor had any fake IDs turned in from Jax Fish House. 3. Matters from the Responsible Hospitality Group (RHG). Beth Smith, Chair of RHG, appeazed and she advised the Authority that she was closing La Iguana Restaurant soon. Ms. Smith reminded the Authority that the city of Boulder has recently received a grant from the Responsible Hospitality Institute, so continued work from the RHG would be needed for that grant. Ms. Smith informed the Authority that she would remain as Chair of the RHG until the end of the year, and after that she expected that the RHG board members would divide up the Chair's responsibilities so that leadership of the RHG would be done by a committee of perhaps three to five people, rather than one Chair. Ms. Smith provided the Authority with a document describing the RHG Chair's job duties, which was accepted by the Authority as an exhibit. Ms. Smith also let the Authority know about her going away party at the Fox Theater on September 28, 2005. 4. Renewal Hearing for R2DJ, Inc. d/b/a The Player's Club at 114313'h Street fora non- automatic renewal of ahotel-restaurant type liquor license expiring on October 2, 2005. Member Corielle was the designated hearing conductor for this matter. Thomas Mattson, Esq., attorney for the landlord, appeared on behalf of the licensee as the landlord's and the licensee's interests in this matter are aligned. Mishawn Cook reminded the Authority that the state and city applications and fees for this renewal have not yet been received and would need to be received by the expiration date of October 2, 2005 to avoid lapse of this license. Mr. Madsen requested to be allowed by the Authority to continue this matter until the October 19, 2005 BLA hearing. Chair Gowen moved, seconded by Parnes, to allow continuance of this non-automatic renewal hearing as requested to the October 19, 2005 BLA hearing. Motion approved 4:0. 5. TemQorary Liquor License Hearing for a September 6, 2005 Transfer of Ownership apphcation from Saldana Corporation LLC d/b/a Jazzy's Crab Shack, 2719 Iris BLA Final Minutes Page 2 of 9 Avenue, Francisco Saldana, 11898 Begole Circle, Golden, CO, Owner, for aHotel- Restaurant type liquor license. Chair Gowen was the designated hearing conductor for this matter. Francisco Saldana was sworn in and testified on behalf of this LLC applicant. No conflicts of interest or ex-parte communications were disclosed by the Authority members. Mishawn Cook clarified for the Authority that this hearing is only for the issuance of the temporary license because one of the requirements for issuing a temporary license is not met, the requirement that no modifications be made from the original approved diagram. Ms. Cook explained to the Authority that a half wall was built during the prior ownership, that the transfer application for this applicant would be heard at the October 19, 2005 BLA hearing, and that if required, a modification application could be heazd then as well. Member Marshall commented that he wanted to ensure that this applicant was timely with all future requirements. Sandra Llanes advised the Authority that the legal standazd that should be observed per state regulations by the Authority is if this half wall is a substantial or material change to the premises. In response to a question by Chair Gowen, Mr. Saldana confirmed that this addition of a half wall would not result in an increase in occupancy for the restaurant. Upon the request by Chair Gowen for public comment, Jan Otto spoke against approval stating that this situation represents lax enforcement. Member Mazshall asked for Mr. Saldana's commitment to keep this location in timely compliance in future, and Mr. Saldana replied that he would endeavor to do so. Chair Gowen confirmed with the applicant and with Ms. Cook that a complete transfer application has now been received, and Ms. Cook stated that a substantially complete transfer application has now been received (still requiring two assignments and an operating agreement). Member Paznes moved, seconded by Corielle, to grant a 120 day temporary permit to conduct business for this transfer. Motion approved 4:0. 6. Public Hearing and Consideration of an Apri14, 2005 application from I{abili, LLC d/b/a Seven, 1035 Pearl Street,l8~ Floor, Shimon Kabili, 1035 Pearl Street, Suite 400, Manager/General Partner, for a New Hotel-Restaurant type liquor license. Member Mazshall was the designated hearing conductor for this matter. Shimon Kabili, owner of the LLC applicant, Michel Wahaltere, chef for this applicant, and Grant Naugle, baz manager for this applicant, were sworn in and testified as to this application. Shimon Kabili confirmed under oath that the legally mandated posting of the premises fora 10 day period was properly completed. Hearing procedures were read to this applicant by Member Marshall. No conflicts of interests or ex-parte communications were disclosed by Authority members. No third parties requested interested party status when notification was requested. A packet containing a new premises diagram, an employee manual, and a restaurant menu was provided by applicant and was accepted by the Authority as an exhibit. This applicant confirmed that all cun•ent employees were registered for the October 25, 2005 BPD LESS class and confirmed to the Authority that, in contrast to their originally submitted answers to city of Boulder liquor license application, that their establishment would serve food at least until l lpm. Kelly Pietrs from Esquire Petitioning Services was sworn in and testified about the neighborhood needs and desires petition results included in today's BLA hearing packet. No public comment was received by the Authority. Chair Gowen recognized that the statutory requirements for license approval had been met, thus moved, seconded by Corielle, to approve this application for a new hotel-restaurant liquor license. Motion approved 4:0. 7. Public Hearing and Consideration of a July 8, 2005 application from Jintana BLA Final Minutes Page 3 of 9 Srikitprachai d/b/a Gemini Thai Kitchen, 1630 30a' Street, Suite B, Jintana Srikitprachai, 3569 North Pike Circle, Fort Collins, CO, Owner, for a Transfer of Ownership of aHotel-Restaurant type liquor license. As Member McMurray was absent for this hearing, Chair Gowen was the designated hearing conductor for this matter. Suwitcha Srikitprachai, brother of the general manager and son of the owner for this application, was sworn in and testified about this application. Suwitcha Srikitprachai confirmed under oath that the legally mandated posting of the premises fora 10 day period was properly completed. Hearing procedures were read to this applicant by Chair Gowen. No conflicts of interests or ex-parte communications were disclosed by Authority members. No third parties requested interested party status when notification was requested. Chair Gowen confirmed that the seating capacity will remain the same from the prior licensee, Sawaddee Restaurant, to the new operation named Gemini Thai Kitchen. No public comment was provided to the Authority. Member Marshall moved, seconded by Corielle, to approve this application for the transfer of ownership of the hotel- restaurant liquor license. Motion approved 4:0. 8. Public Hearing and Consideration of a July 19, 2005 application from McBride Boulder Broker Inn, LLC d/b/a Boulder Broker Inn, 555 30 Street, Craig McBride, 2234 South Queen Street, Lakewood, CO, Manager/Member, George Andrews, 2410 South Flora Court, Lakewood, CO, Manager/Member, and Hamid Hursan, 4207 South Naples Way, Aurora, CO, Registered Manager and Member, for a Transfer of Ownership of aHotel-Restaurant type liquor license. Member Parnes was the designated hearing conductor for this matter. George Andrews, manager/member of the LLC applicant, and Hamid Hursan, registered manager of the proposed licensed premise and manager/member of this LLC applicant, were each sworn in and testified about this application. Both George Andrews and Hamid Hursan confirmed under oath that the legally mandated posting of the premises fora 10 day period was properly completed. Hearing procedures were read to Mr. Andrews and Mr. Hursan by Member Parnes. No conflicts of interests or ex-parte communications were disclosed by Authority members. No third parties requested interested party status when notification was requested by the Authority. George Andrews advised the Authority that on July 31, 2005 the BPD came to the Boulder Broker Inn to conduct the BPD LESS class on-site for approximately 34 employees. No public comment was provided to the Authority. Member Parnes commented that the requirements for this application had been met, thus moved, seconded by Gowen, to approve this application for transfer of ownership of a hotel- restaurant liquor license. Motion approved 4:0. 9. Public Hearing and Consideration of a August 1, 2005 application from International Cuisine, LLC d/b/a Saffron Indian Restaurant, 1617 Pearl Street, Suite 100, Ganesh Kuppuswamy, 9468 East Florida Avenue, Unit 2040, Denver, CO, Owner/Manager, for a New Hotel-Restaurant type liquor license. Member Corielle was the designated hearing conductor for this matter. Ganesh Kuppuswamy, owner of the LLC applicant, was sworn in and testified regarding this application. Ganesh Kuppuswamy confirmed under oath that the legally mandated posting of the premises fora 10 day period was properly completed. Hearing procedures were read to this applicant by Member Corielle. No conflicts of interests or ex-parte communications were disclosed by Authority members. No third parties requested interested party status BLA Final Minutes Page 4 of 9 when notification was requested. Mr. Kuppuswamy summarized the neighborhood needs and desires petitioning results for this new license. Mr. Kuppuswamy confirmed to the Authority that he is awaze that all servers working in his new restaurant will be required to take the BPD LESS class within the first 6 month from his opening or 6 months from date of employment. In response to questions from Member Parnes, Mr. Kuppuswamy confirmed that a fence will surround the licensed patio and that the height of the fence will conform with city code requirements. Jan Otto provided public comment, requesting clarification as to if the license in the prior location of this restaurant at 18th and Peazl was still viable. Sandra Llanes commented that a liquor license is a property right, but that she would need to complete more legal reseazch to answer further. Mishawn Cook commented that, unless a landlord obtains a court order to complete a transfer by operation of law, both the landlord and a licensee have to cooperate to effect a transfer of a liquor license to a new tenant of a licensed premise. In response to a question from Member Marshall, Mishawn Cook answered that there is not a viable liquor license at this applicant's prior location of 18th and Peazl, but instead this applicant elected to surrender his prior licenses, and after leasing his new premise, filed the new application that is now before the Authority. Member Marshall moved, seconded by Parnes, moved to accept this application as submitted thus approve this new hotel-restaurant liquor license. Motion approved 4:0. 10. Matters from the Licensing Clerk. a. Set neighborhood boundaries for the October 19, 2005 BLA hearing. Applicant: Akiyama, Inc. Trade Name: Akiyama Sushi Baz and Grill Location: 6525 Gun Park Drive, Unit 330, Boulder, CO 80301 License Type: A New Hotel-Restaurant type liquor license Authority Deftned Neighborhood North Boundary: Mineral Road South Boundary: Jay Road West Boundary: 65`h Streetl Diagonal Highway East Boundary.• 75th Street Extended Diane Goldenstein, Esq., attorney for this applicant, appeazed before the Authority and provided to the Authority a map recommending boundaries from Oedipus, Inc. (the firm conducting the neighborhood petitioning) which was accepted as an exhibit. Member Marshall moved, seconded by Corielle, to accept the above boundaries as the designated neighborhood for this application. Motion approved 4:0. Applicant: Service America Corporation Trade Name: Centerplate Location: 401 UCB Coors Events Conference Center, Boulder, CO 80309 License Type: A New Hotel-Restaurant type liquor license Authority Defined Neighborhood North Boundary: Walnut Street BLA Final Minutes Page 5 of 9 South Boundary: Dartmouth Street Extended West Boundary: 9`n Street Extended East Boundary: Gilpen Drive Extended Applicant: Service America Corporation Trade Name: Centerplate Location: University of Colorado's Folsom Field, Folsom & Colorado, Boulder, CO 80309 License Type: Hotel-Restaurant liquor license Modifications to East and West Stands Authority Defined Neighborhood North Boundary.• Walnut Street South Boundary: Dartmouth Street Extended West Boundary: 9`~ Street Extended East Boundary: Gilpen Drive Extended Adele Reester, Esq., attorney for this applicant, appeazed before the Authority and brought to the attention of the Authority her memo dated September 6, 2005 and two maps recommending boundaries from Oedipus, Ina (the firm conducting the neighborhood petitioning for these 3 applications) which was provided to the Authority in today's BLA packet. Ms. Reester asked if she might address boundary setting for a113 applications and highlighted the suggestions detailed of her memo. Jan Otto, member of the public, asked to review the proposed boundaries; copies of proposed boundaries were provided to Mr. Otto and Mr. Otto provided public comment that he did not object to the boundaries submitted. Member Marshall moved, seconded by Corielle, to accept the above boundaries as the designated neighborhood for the new license application for the Coors Events Conference Center and for the two modification application for the East Stands and the West Stands at Folsom Field. Motion approved 4:0. b. Updates from the Licensing Clerk Mishawn Cook notified the Authority of the modification applications and temporary licenses issued for applicants to be heazd at upcoming BLA hearings. Ms. Cook also reviewed the following materials provided in this month's BLA packet and attachments for the Authority's information: (i) Legislative Update of changes in State Law, (ii) State Liquor Enforcement Division Suspension Days Guidelines, (iii) Policy and Regulations and Education and Services Subcommittees reports provided to the City Council in their September 13, 2005 Study Session, and (iv) 2005 State of Colorado Codes and Regulations bound book provided to the BLA with today's BLA packet. Chair Gowen asked, as to third above mentioned document, what the purpose of the study session was and what the status of City Council action was at this time. Ms. Cook advised that the purpose of the September study session was to bring forward recommendations that may have a budgetary component and that the next action to be taken by the City Council related to the alcohol issues subcommittees should occur in sessions in November. Chair Gowen stated that he wanted to record the Authority's continued interest in being engaged in an advisory role to the City Council on alcohol issues recommendations. BLA Final Minutes Page 6 of 9 Mishawn Cook noted for the Authority that Boulder's days held in abeyance vary slightly from the State's Suspension Days Suggested Guidelines. Ms. Cook commented to the Authority that she has provided each Authority member with an updated, bound copy of the 2005 Colorado Liquor Codes and Regulations, but has not included city resource materials since Boulder's ordinances, rules, and regulations are substantially in flux at this time. Ms. Cook advised the Authority that she has received in the mail a copy of the State Regulation relating to Undue Concentration from ACE Self Storage included in today's BLA packet and noted a lengthy discussion about this State Regulation during last month's BLA hearing. Member Parnes raised the issue that there was an outstanding question from public member, Jan Otto, about unintended proliferation of licenses in the city that Ms. Cook should answer at this time. Mishawn Cook commented that the Authority had to give Patrick LeMahieu from the Player's Club an opportunity to appeaz today to request non-automatic renewal of their license for next year before their expiration date of October 2, 2005 and again stated that Mr. LeMahieu needs to at least file both his city and state renewal applications and fees before that expiration date, despite the fact that the renewal hearing was today continued by the Authority to the 10/19/05 BLA hearing. Mishawn Cook clarified that a premise cannot be double licensed, so unless the current Player's Club license is allowed to expire, is surrendered, or is voluntarily transferred by them (unless the landlord gets a court order to force the transfer of a license), the landlord cannot retain a license at that premise to offer to anew tenant. Ms. Cook further commented that as this license is on non-automatic renewal, any renewal, transfer, new license, or change to the license must be heazd by the Authority. Sandra Llanes then asked if the Authority members had any other concerns related to the above question that she could further research, and Member Corielle commented that in her time as an Authority member, with raze exceptions, the only type of show cause that she has deliberated on has been a show cause resulting from a sale to a minor during a BPD compliance check, and as such, Corielle would be interested in having Ms. Llanes reseazch conduct of establishment violations. Other Authority members commented that they were also interested in that reseazch as it was of concern to the community. Ms. Llanes indicated that she would complete such research. Lisa Spaulding, public member, then commented that she wrote down from Mr. LeMahieu's last appearance before the Authority that the Player's Club closed on December 1 S` and Ms. Spaulding commented to the Authority that no liquor licensed tenant is better than a bad liquor licensed tenant, so avoiding enriching a deficient landlord, from the prospective of the neighbors. Member Marshall asked Mishawn Cook if she expected the Authority to direct her to review and change Boulder's Suspension Days chart. Ms. Cook commented that if the Authority directed her to review the chart, then she would do so. Chair Gowen commented that the only deviation that he saw, which he felt to be minor, was a one day difference in the abeyance days and he was primarily interested in making sure that Boulder's Authority is consistent in its own decisions. Sandra Llanes commented that she thought that it was good for Boulder to be consistent, but also noted that consistency across the state was also of concern. Chair Gowen noted to other Authority members that the BLA in any case could increase abeyance days if there were aggravating factors when hearing a violation. BLA Final Minutes Page 7 of 9 11. Matters from the Assistant City Attorney. Sandra Llanes brought to the Authority's attention a memo dated August 11, 2005 detailing a meeting with Matt Cook, Director of the State Liquor Enforcement Division, provided to all Authority members with last month's BLA packet. Ms. Llanes reviewed change, alter, modification and how much discretion the BLA already possesses for this application type as to the "usage" of premise in a way that materially or substantially alters the licensed premises. Member Marshall noted that Good Neighbor Agreements are also mentioned in the memo and Ms. Llanes commented that, provided such Agreements aze voluntarily entered into by applicants, the terms of such Agreements can be viewed as conditions to an issued license representing teens that a neighborhood wants and what community standards the city can live with. As such, violations of the terms of such voluntarily agreed upon conditions by applicants could be heard in a show cause action before the BLA, and at these show causes, the Authority should take care to make cazeful findings of the pazticulaz voluntary conditions and any violations of those conditions. Ms. Llanes commented that other items addressed in the meeting aze in the memo, so the Authority members should read the memo carefully, then feel free to ask her further questions. 12. Matters from the Chair and Members of the Authority. a. Debriefing from this hearing. Member Parnes commented that several times today the Authority asked applicants to summarize the neighborhood needs and desires petition results, and Parnes questioned if the Authority could simply take notice of the petition results always submitted in BLA packets. Member Marshall stated that he finds it helpful to find out which applicants have made a thorough, cazeful petition and what applicants have not. Chair Gowen advised that this question brought up a good point and Gowen stated he will phrase his questions in future on petition results such that required information in the submitted petition materials are verbally mentioned in the Authority record, and as such, noted to satisfy the applicant's statutory requirements for the Authority. Member Parnes advised this solution addressed his concern. b. Other Matters from the Chair and Members of the Authority. At the behest of Member Mazshall, Mishawn Cook state that she put the issue of the proper way to handle future requests to change suspension dates after a formal BLA motion has been made and after a hearing is concluded as occurred in the string of emails regazding change of suspension dates for Jax Fish House after their show cause hearing (a copy of such emails aze included under this agenda item in today's BLA packet). Member Marshall asked Member Corielle if email was a good way to communicate with her in between BLA meetings and Corielle indicated that it was not. Member Corielle stated that she did communicate her denial of the requested change in the instance of Jax to Mishawn Cook. Member Marshall commented that he felt that the BLA should be very strict, but very predictable in future selection of suspension days. Mishawn Cook suggested that the BLA might include in future a reminder that licensees should come to BLA show cause hearings with suspension days in mind in the Notice of Show Causes which are drafted by the City BLA Final Minutes Page 8 of 9 Attorney's Office and sent to licensees to let them know of a required appearance before the BLA to address a violation in a show cause hearing. Member Pames commented that changes in suspension days are not of concern to him, but provided that the BLA gives prior notice to licensees of the requirement to come to a show cause hearings with suspension dates selected as days will not be later changed, then Parnes thought no change of dates to be acceptable. Member Pames asked that Chair Gowen draft language and send same to Mishawn Cook to be included in the Notice of Show Causes and Violations webpage. Member Parnes then summarized that it was the consensus of the Authority not to later change selected suspension dates, absent extraordinary circumstances. The Authority concurred. Member Mazshall commented that he felt polling the Authority members after the conclusion of a hearing was burdensome for Mishawn Cook. Ms. Cook commented that such emails and phone calls to Authority members were not hazd to organize, but that shortly after each show cause hearings, she reports the results of such hearings to the State, so changes in suspension dates after hearings result in amendments to her reports to the State. Member Mazshall commented that he felt such double reports to the State to be reason enough not to allow changes after the fact in suspension dates. ADJOURNMENT Chair Gowen advised that Authority should adjourn, thus hearing was adjourned at 3:35 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: f~ ~~ Mishawn J. Cook, Licensing Clerk BLA Final Minutes Approved: Peter Go n, Chair Page 9 of 9