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Minutes - Beverage Licensing - April 15, 2009 CITY OF BOULDER BEVERAGE LICENSING AUTHORITY * "MINUTES MINUTES * * * WEDNESDAY, APRIL 15, 2009, 1:00 P.M. BOULDER CITY COUNCIL CHAMBERS MUNICIPAL BUILDING - 2nd FLOOR 1777 BROADWAY, BOULDER, COLORADO NAME OF BOARD/COMMISSION: Beverage Licensing Authority (BLA) DATE OF MEETING: April 15, 2009 NAME/TELEPHONE OF PERSON PREPARING SUMMARY: Mishawn J. Cook - Deputy City Clerk (303-441-3010) NAMES OF MEMBERS, STAFF, AND INVITED GUESTS PRESENT: Board Members: David Cheval, Lisa Spalding, Steve Wallace and Dave Zessin Staff Present: Sandra Llanes, Assistant City Attorney, and Mishawn J. Cook, Deputy City Clerk. QUASI-JUDICIAL MEETING OUTLINE OF AGENDA 1. Roll Call, Approval of Beverage Licensing Authority (BLA) Minutes from March 18, 2009, BLA Chair and Vice Chair Election, and Hearing Conductor Assignment Approval for hearing. Vice Chair Wallace conducted the hearing, since a new chair was not yet elected. Roll Call was taken. Four Authority members were present, with Member Tim McMurray being absent, thus there was a four member quorum. Member Spalding provided Mishawn Cook with some changes to the March 18t" minutes, which Ms. Cook stated she would incorporate. Member Cheval moved, seconded by Spalding, to approve the BLA March 18, 2009 hearing minutes as amended. Motion approved 3:0, with Member Zessin abstaining, since he did not participate in the March hearing. Vice Chair Wallace nominated Member McMurray for Chair, seconded by Member Cheval. No other nominations were provided. Motion approved 4:0. Member Cheval nominated Steve Wallace as Vice Chair, seconded by Member Spalding. Motion approved 4:0. Mishawn Cook requested that Item 11(A)(i) for Shooters Grill and Bar be moved up on the agenda to accept previously established neighborhood boundaries in preparation for Agenda 04/15/09 BLA Final Minutes Page 1 of 10 i Item 10. Member Cheval moved, seconded by Member Spalding, to allow this change in the agenda order. Motion approved 4:0. Member Cheval moved, seconded by Zessin, to approve previously determined Neighborhood boundaries as follows: Bluff Street Extended on the North, Marine Street Extended on the South, 4th Street on the West, and 20t}1 Street on the East. Motion approved 4:0. After agenda item 2 was completed, the Authority re-visited this matter. Vice Chair Wallace requested public comment on all hearing conductor assignments, but none was provided. Member Spalding moved, seconded by Zessin, to accept hearing conductor assignments as listed on the agenda. Motion approved 4:0. 2. Matters from the Boulder Police Department (BPD). Officer Heather Frey appeared on behalf of the BPD and updated the BLA on the investigation of K's China. Officer Frey stated that based on all information received during the investigation, the BPD felt there was not enough evidence for a conduct of establishment show cause action. Officer Frey noted that during the investigation, she discovered some internal policy issues with K's China. The owners agreed to meet on Friday April 24'h with Officer Frey and RHG members to discuss some possible changes. Vice Chair Wallace noted that K's China was not an RHG member and Mr. Wallace asked if the lack of membership might be because of a language disparity. Officer Frey did confirm a language issue with one owner, but stated that she communicated through a family member so she did not know if it kept them from being an RHG member. Member Spalding asked that BPD conduct regular bar checks at the location and discuss noise violations with the licensee because of the outdoor patio. Officer Frey and BLA members discussed if liquor licensees intended to not serve alcohol on CU graduation morning. Officer Frey replied that she always encourages new licensees to become RHG members and encourages RHG members to avoid alcohol service at such times. Ms. Cook noted that in future one of the options presented to Council is a new licensee mentoring program, whereby Ms. Cook, Officer Frey, an RHG member and city staff from economic development meet with new licensees during their inspection. This group would then provide resource contact information for new licensees and explain the statistics of the risks new licensees face in their first year of liquor licensed operations. Officer Frey also summarized the BPD warrant round-up that was conducted April 13 and 14, from 4 - 9 p.m., by six officers each night, four from BPD and two from CU. BPD started out with 97 warrants for failure to appear on original charges of minor in possession and the group of officers had 12 resulting arrests. 3. Matters from the Responsible Hospitality Group (RHG). Chris Emma, RHG Treasurer, recapped the group's last RHG meeting and he stated that Sunrise Liquor is now an RHG member. Mr. Emma commented on the outreach for peer-to-peer meetings. He stated that three RHG members attended a meeting with Baker Street Pub and that several more meetings were 04/15/09 BLA Final Minutes Page 2 of 10 scheduled, including K's China. Mr. Emma also advised that RHG plans to meet with three new licensees in April or May, which include The Rib House, Larkburger and Gindi Cafe. Mr. Emma commented on last night's study session, stating that RHG was mentioned prominently by staff, but that he felt RHG does not hold the same value for City Council. Mr. Emma noted that RHG submitted a letter, on RHG's opinion that existing regulations are sufficient and that the cooperative actions undertaken by RHG are the proper avenue to address issues with licensees, presented to the Council for their study session on April 14 and that the members were in consensus of the content of the letter. Member Spalding asked Mr. Emma what his concept was of low risk and high risk establishments as a planning definition included in the study session. Mr. Emma replied that he would like to discuss these definitions at an RHG meeting before commenting. Member Spalding asked Mr. Emma about the RHG outreach meetings based on last drink data and Mr. Emma replied that he could pursue this data from BPD. Member Zessin asked Mr. Emma if the RHG had performance metrics for RHG members regarding formal training, certifications, performance, etc.. Mr. Emma replied no. Member Zessin asked how lie might find out more information on RHG and what the group does. Mr. Emma describing RHG as an all volunteer business peer group of experienced licensees, which charges a $50 yearly membership fee, with suggested best business practices. Member Spalding asked if a BLA member might attend and Mr. Emma welcomed all BLA members. 4. Show Cause Hearing concerning October 26, 2008 violations and whether the Hotel- Restaurant type liquor license held by Playa Azul, Inc., d/b/a Playa Azul, 1600 38th Street, Boulder, CO, should be suspended or revoked. Member Spalding was the assigned hearing conductor. Ms. Cook commented that the BLA members had an exhibit item before them that had also been provided to the licensee's attorney, which would possibly be discussed regarding this agenda item. David Olivas, Esq. appeared as licensee's attorney and waived hearing procedures reading. Aurora Curiel, Licensee's President, and Jose "Pepe" Curiel, Ms. Curiel's brother and on-duty employee at the restaurant on the night of the alledged violations, were both sworn in. Member Spalding asked the BLA if anyone had ex-parte communications or conflicts of interest to disclose, to which Member Cheval disclosed that he briefly spoke with a BPD officer about the incident. However, Member Cheval stated that he had not obtained any additional information beyond what has already been presented to him here and he advised that he felt he would be able to snake a fair and impartial decision. No other ex-parte communications or conflicts of interest were disclosed by other Authority members. Bob Keatley, BPD prosecutor, appeared on behalf of the BPD and advised that a stipulation to the facts of some of the violation counts and a potential penalty agreement had been reached. Mr. Keatley acknowledged that this is an unusual situation and that he had been advised by Mr. Olivas that if there is a significant period of suspension, it would financial doom Playa Azul. The proposed stipulation was for one count of sale of minor and one count of after-hours sale, with the conduct of establishment violation to be dismissed. The suggested penalty is 8 suspension days served with 16 days in abeyance, but they have 04/15/09 BLA Final Minutes Page 3 of 10 stipulated to 30 days in abeyance. Mr. Keatley also stated that if the Authority did not accept the stipulation, he would be forced to ask for a continuance because he was unable to get one of his witnesses to this hearing. Mr. Keatley commented that he bad contacted Ms. Cook prior to the hearing to inforni her that he would need a continuance if the stipulation was not accepted and Ms. Cook replied that upcoming hearing dockets were relatively open. Member Cheval moved, seconded by Wallace, to accept the stipulation, with the suggested amendment that there be no private party rentals and all employees should be retrained. No action was taken on the motion because of a 2:2 split vote, with Members Spalding and Zessin opposed. Member Spalding then moved, seconded by Cheval, to continue this hearing to next month. Motion approved 3:1, with Member Cheval opposed. Mr. Olivas requested that this hearing be continued to the BLA hearing on June 17, 2009, due to a scheduling conflict in May. Vice Chair Wallace asked Mr. Keatley if it would be a problem for his witnesses to attend the June hearing. Mr. Keatley responded that he did not anticipate it would be a problem. Member Cheval then moved, seconded by Wallace, to arrrend the continuance of this show cause hearing to the BLA June 17, 2009 hearing. Motion approved 4:0. Member Spalding asked Ms. Cook to include information on the licensee's previous show cause in the BLA packet for the June hearing. Ms. Llanes responded that the information could be provided to the BLA just prior to sentencing, rather than before the hearing, if appropriate and that she would work with Ms. Cook to determine what documents should be included. However, Ms. Cook stated that this information would also be provided to Mr. Olivas and Bob Keatley for their review. 5. Special Event Liquor Permit hearing for March 24, 2009 application from Bands For Lands event at Flatirons Theater at 1089 13t" Street on Friday April 24, 2009 from 12 Noon to 2AM; Bands for Lands, a Non-profit Corporation with a business address of 501 East Cannon, Lafayette, CO. Ms. Cook advised that the applicant requested to withdraw their special event liquor permit application so no hearing was convened. 6. Public Hearing and Consideration of a January 27, 2009 application from Everest Delights Cafe, Inc., d/b/a Everest Delights Cafe, 2850 Iris Avenue, Unit D, Boulder, CO; Pranaya Shrestha, President, and Prasanna Shrestha, Vice President, Secretary and Registered Manager, with a premise business mailing address for a transfer of ownership of Hotel-Restaurant type liquor license. Member Zessin was the assigned hearing conductor. Prasanna Shrestha, Vice President and Registered Manager, was sworn in, provided testimony on this transfer, and confirmed premise posting under oath for the required 10-day period. Hearing procedures were read. No ex-parte communications or conflicts of interest were disclosed by Authority members. No third parties requested interested party status and there was no public comment. Mr. Shrestha stated that he owns two other businesses, a Conoco gas station at 30"' and 04/15/09 BLA Final Minutes Page 4 of 10 Diagonal in Boulder and another business in Aurora, but that this is his first time owning a restaurant. Mr. Shrestha indicated that he does not have training in alcohol service, but he stated that the cook at the establishment is the only trained employee and the only one who serves alcohol and checks IDs. Mr. Shrestha further indicated that alcohol sales are minimal at the restaurant. The Authority members encouraged Mr. Shrestha to have more employees trained in the service of alcohol so that they would have better employee flexibility. Vice Chair Wallace moved, seconded by Cheval, to approve this Hotel-Restaurant liquor license transfer of ownership application. Motion approved 4:0. 7. Public Hearing and Consideration of a February 13, 2009 application from Tonic Inc., d/b/a Tonic, 2011 10th Street, Boulder, CO; Heinz Valenta, President, and Mark Ehrlich, Secretary and Registered Manager, with a premise business mailing address for transfer of ownership of a Beer & Wine type liquor license. [Chevall Member Cheval was the assigned hearing conductor. Heinz Valenta, President, was sworn in, provided testimony on this transfer, and Mr. Valenta confirmed under oath premise posting for required 10 day period. No ex-parte communications or conflicts of interest were disclosed by the Authority members. Hearing procedures were read. Mr. Valenta stated that the business was actually a healthy alternative to drinking, and that they serve elixirs, tonics, oxygen, and organic and raw food. Mr. Valenta stated the reason they needed the liquor license is because one of their products, a fennented drink called Jun, has a low alcohol content, but a high enough level to require a liquor license. Member Spalding noted that the applicant's original questionnaire states they will be open on Sunday from 1 - 7 p.m, however, the Planning Department said they would need to go through a use review in order to be open on Sunday. Ms. Cook stated that the applicant has been in contact with the Planning Department and is currently going through the review process for Sunday hours. Member Spalding then asked that the original questionnaire be amended to reflect being open on Sunday would depend on the outcome of the use review. Ms. Cook asked if they could add "pending approval by Planning Department" to the questionnaire and Member Spalding said she was okay with doing it that way. Because of the alcohol content of the Jun drink, Officer Frey provided comment that the BPD had issue with the previous owners serving Jun without a liquor license. Officer Frey's stated concerns stemmed from the additional fennentation that could occur during shipment of this drink from Oregon. Mr. Valenta replied to Officer Frey's question, that Mark Ehrlich, upon arrival of a shipment, opens the bottles and checks the alcohol levels and that he then immediately refrigerates the bottles, to avoid additional fermentation. Sandra Llanes asked Mr. Valenta if the patrons were informed of the alcohol content of the drink and Mr. Valenta stated the alcohol content was on the menu. No third parties requested interested party status and there was no public comment. Vice Chair Wallace moved, seconded by Zessin, to approve the Beer and Wine liquor license transfer of ownership application. Motion approved 4:0. 04/15/09 BLA Final Minutes Page 5 of 10 8. Public Hearing and Consideration of a February 17, 2009 application from Tangier Moroccan Cuisine, LLC, d/b/a Tangier Moroccan Cuisine, 3070 28`h Street, Unit 2, Boulder, CO; Khalil Benmellah, LLC Member and Registered Manager, with a business mailing address of 10527 Clermont Way, Thornton, CO 80233, for a new Hotel-Restaurant type liquor license. In Member McMurray's absence, Vice Chair Wallace acted as the assigned hearing conductor, Khalil Benmellah, LLC Member and Registered Manager, was sworn in, provided testimony about this new license application, and Mr. Benmellah confirmed premise posting under oath for the required 10-day period. Hearing procedures were read. No ex-parte communications or conflicts of interest were disclosed by Authority members. Ms. Cook provided the Authority with an agenda exhibit, marked as agenda item 8, exhibit 1, which was an email that she received from a City and County of Denver investigator stating that there were no violations at a licensed premise in Denver during the time that Mr. Benmellah managed the licensed premise. Mr. Benmellah stated that he has 18 years experience. No third parties requested interested party status. There was no public comment. Member Cheval moved, seconded by Spalding, to approve this new Hotel-Restaurant liquor license application. Motion approved 4:0. 9. Public Hearing and Consideration of a February 17, 2009 application from Less Filling, LLC, d/b/a Terra on Pearl, 1047 Pearl Street, Boulder, CO; Robert Bradford Heap, LLC Member, and Carol Vilate, Registered Manager, with a premise business mailing address for a new Hotel-Restaurant type liquor license. Member Spalding was the designated hearing conductor. Robert Bradford Heap, LLC Member, was sworn in, provided testimony on this new license application and confirmed premise posting under oath for the required 10-day period. Hearing procedures were read. No ex-parte communications or conflicts of interest were disclosed by Authority members. Mr. Heap advised that he was co-owner of Full Moon Grill which only had one violation during his 10 years of ownership. Mr. Heap also advised that the he was a co-owner of the Chautauqua Dining Hall and that during his tenure there were no violations at that location. Mr. Heap's stated that his intention at this new restaurant is to have a lower price point, use local food products with a small seasonal menu, that the restaurant will be food-driven, but that they want to have a strong wine program with a casual atmosphere. Member Spalding asked about Sunday hours stating that she noticed on the city questionnaire it states they will be open Sundays 5 - 11 p.m., however, the Planning Department's Notice of Disposition says they will be closed at 10 p.m. on Sundays. Member Spalding asked Ms. Cook to clarify compliance with zoning laws with Brian Holmes of the Planning department to indicate the approved Sunday hours. Ms. Cook stated that the BLA license approval will be pending clarification of the Sunday hours and that the BLA approval will occur only after this clarification. No third parties requested interested party status and there was no public comment. 04/15/09 BLA Final Minutes Page 6 of 10 Vice Chair Wallace then moved, seconded by Cheval, to approve this new Hotel-Restaurant liquor license application. Motion approved 4:0. 10. Public Hearing and Consideration of a March 31, 2009 application from The Reef Piano Bar & Grill, Inc., d/b/a Shooters Grill & Bar (was 13"' Street Saloon), 1801 13th Street, Suite 190, Boulder, CO; Brad Hogan, President, Secretary and proposed Registered Manager, and Jay Lohuis, Vice President, with a premise business mailing address for a 100% Corporate Shares Ownership Change, Registered Manager Change and Permanent Modification of a Hotel-Restaurant type liquor license. Vice Chair Wallace was the designated hearing conductor. Vince Linden, Esq. appeared as licensee's attorney and waived hearing procedures reading. Brad Hogan, President, Secretary and proposed Registered Manager, and Jay Lohuis, Vice President, and Susan Duffy Schwall of Liquor Licensing Professionals petitioning company, were all three sworn in and each provided testimony about this application. Mr. Hogan confirmed under oath the premise posting for the required I0-day period. When asked if there were any ex-parte communications, Member Spalding stated that she went to the city's central records department to see if the Players Club file was still there, but it was not. No other ex-parte communications or conflicts of interest were disclosed by Authority members. Ms. Schwall provided testimony on the submitted petition results related to the need and desire of the designated Neighborhood for the proposed permanent modifications at the licensed premise. Vice Chair Wallace inquired as to why the applicant chose a corporate shares ownership change, rather than a transfer of the license. Mr. Linden stated he advised his client that an ownership change would save time and money in fees. Member Spalding asked to hear the circumstances and the outcome of the arrest of Mr. Lohuis in 2007, which was not initially disclosed. Mr. Lohuis provided testimony on this arrest. Allen Noradeen, who was also present at the time of Mr. Lohuis 2007 arrest, was sworn in and provided testimony. Mr. Linden stated that Mr. Lohuis provided the information in writing to his office, but that the 2007 arrest was inadvertently omitted when his office retyped the information onto the state individual history report form. Mr. Lohuis and the Authority members also discussed Mr. Lohuis receiving a ticket as a result of a failed compliance check at The Player's Club location. Officer Heather Frey provided corn ment indicating that during compliance checks according to state regulations underage persons can either use their own underage IDs or no ID. Mr. Linden provided the Authority with several letters of recommendation pertaining to both of his clients characters, those pertaining to Brad Hogan were marked as agenda 10, exhibit 1 and those pertaining to Jay Lohuis were marked as agenda 10, exhibit 2 by Ms. Cook. Mr. Linden also stated that they were prepared to provide additional information as proof of his client's good moral character. Member Zessin requested such testimony. Mr. Linden asked Mr. Lohuis if he had any other felony or misdemeanor convictions, other than the 2004 sale to minor conviction and 2007 obstruction of a police officer conviction, and Mr. Lohuis responded, "No, I do not." Mr. Lohuis stated he was on active duty in the 04/15/09 BLA Final Minutes Page 7 of 10 military from 1995-1999 and active reserve from 2001-2002 post 9/11, with an honorable discharge. Besides the convictions already discussed, Mr. Lohuis affirmed that he has no other criminal convictions in the United States or any other foreign countries. Member Cheval moved, seconded by Wallace, to approve the corporate shares ownership change of this Hotel-Restaurant liquor license. Motion approved 4:0. Member Cheval moved, seconded by Wallace, to approve the registered manager change to Brad Hogan as the new registered manager. Motion approved 4:0. Additional testimony was provided regarding the permanent modification. Mr. Linden stated that some changes were made, without approval, by the previous shareholders. Mr. Linden also stated that the applicant wanted to make some changes to location and contacted Ms. Cook to inquire as to whether prior approval was necessary. Ms. Cook went to inspect the location to better understand the proposed changes, but found that modifications had already been done without Authority approval. Ms. Cook felt it was best to bring the matter before the Authority to have all changes cleared up and to update the city's file. Mr. Hogan provided testimony about changes previously done and permanent modifications they have proposed. The removal of the mechanical bull was discussed as well. Mr. Hogan stated that they, on occasion, could temporarily wheel the mechanical bull out of the way to make room for additional tables and chairs for special events or private parties. Susan Duffy Schwall of Liquor Licensing Professionals petitioning company provided testimony on the petition results. Ms. Schwall testified that the survey was conducted by two surveyors on March 28, 2009 for seven hours total, that they attempted to contact a total of 381 businesses and residents, and that two surveyors obtained 37 business signatures (100% in favor) and 93 residential signatures (95% in favor). No third parties requested interested party status and no public comment was given about this application. Member Zessin moved, seconded by Cheval, to approve the permanent modification to the Hotel-Restaurant liquor licensed premise application. Motion approved 4:0. 11. Matters from the Licensing Clerk: A) Neighborhood Boundaries: i) BLA consent or amendment to prior set Neighborhood Boundaries for The Reef Piano Bar & Grill, Inc. d/b/a Shooters Grill & Bar (was 13th Street Saloon)- Permanent Modification to Hotel-Restaurant liquor license- 180113 1h Street, Suite 190, Boulder, CO 80302. During agenda item 1, the Authority discussed the following: Bluff Street Extended on the North, Marine Street Extended on the South, 4"' Street on the West, and 20th Street on the East. Member Cheval moved, seconded by Zessin, to approve previously set neighborhood boundaries for this application. Motion approved 4:0. 04/15/09 BLA Final Minutes Page 8 of 10 ii) Neighborhood Boundaries for BLA May 20, 2009 Hearing for The Blending Cellar LLC d/b/a The Blending Cellar- Permanent Modification to Beer and Wine license- 946 Pearl Street, Boulder, CO 80302. The Authority discussed the following previously approved boundaries: Maxwell Extended on the North, University on the South, City Limits on the West, and 20'11 Street on the East. Vice Chair Wallace moved, seconded by Cheval, to keep the Neighborhood boundaries as previously set by the Authority for this location. Motion approved 4:0. B) Information Items: i) April Special Events and Temporary Modifications for 2009 Ms. Cook noted that the Authority has this month's special events list in their packet. ii) April 14th Council Study Session (complete copy - BLA and public copy) Ms. Cook gave an overview of the study session with City Council. Ms. Cook stated that Council seemed to be in favor of the general direction proposed, which was a combination of licensee incentives and education as non-regulatory options, along with regulation and enforcement options. Ms. Cook will be attending the next RHG meeting, which begins the public process of discussing the options in detail. These are not new regulations or laws, but current powers of the City of Boulder and the BLA. Ms. Cook noted that Council is interested in looking at the way petitions are done and the option of mandatory notification of all addresses within 300 or 600 feet. Sandra Llanes commented that the City Council is definitely interested in hearing what the BLA has to say about the options available. Member Zessin asked if the options would be brought to the BLA. Ms. Llanes stated that the Council gave Ms. Cook the direction to begin the public process, which would include having a public hearing with the BLA and that this public hearing would allow the Authority to discuss options, accept public comment, and then present the outcome of public process to the Council. The Authority determined that the first public hearing on the study session options would be scheduled for May 20, 2009. Member Spalding requested a copy of the last drink data for the next hearing. Member Zessin requested that the executive summary to Council state that of the 16 different penalties recommended by the state, the only violation type that was amended by the BLA was the conduct of establishment violation in response to Mayor Matt Appelbaum's question. Ms. Cook noted that she will accept her email to invite all BLA members to the study session as agenda 11, exhibit 1. iii) RHG emails and BARS program letter. iv) TIPS Newsletters concerning top 10 national trainers. Ms. Cook and the Authority members discussed the collection of emails about the BARS program. Ms. Cook said that, as recently as one month ago, she has been notified by the 04/15/09 BLA Final Minutes Page 9 of 10 state that they will not approve E-TIPS. Ms. Cook noted Jon Ballient, a local TIPS trainer, is in the top 10 trainers nationally in total numbers of students trained. Member David Cheval and Sandra Llanes left the hearing at this time. 12. Matters from the Assistant City Attorney No matters were discussed. 13. Matters from the Chair and Members of the Authority A) Debriefing from this hearing No matters were discussed. B) Other matters from the Chair and Members Member Zessin, Ms. Cook, and the other Authority members discussed Mr. Zessin's questions regarding documents in the City of Boulder code and regulations resource book. ADJOURNMENT Member Spalding moved, seconded by Zessin, that the hearing should be adjourned. Motion approved 3:0, thus the hearing was adjourned at 5:55 p.m. TIME AND LOCATION OF ANY FUTURE MEETINGS, COMMITTEES OR SPECIAL HEARINGS 1:00 PM - 3rd Wednesday of Every Month in City Council Chambers for year of 2009 Attested: Approved: Mishawn J. Cook, Deputy City Clerk Vtce-Chair 04/15/09 BLA Final Minutes Page 10 of 10