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Beverage Licensing Authority - Minutes - 09/19/2012 CITY OF BOULDER BEVERAGE LICENSING AUTHORITY ***MINUTES*** WEDNESDAY, SEPTEMBER 19,2012,4:00 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: September 19, 2012 NAME & PHONE OF PERSON Mary Mead, Licensing Assistant (303.441.3091) PREPARING SUMMARY: Mishawn Cook, Tax & License Manager (303.441.3010) NAMES OF MEMBERS, STAFF, AND INVITED GUESTS PRESENT: Board Members: Harriet Barker, Timothy McMurray, Lisa Spalding, Richard Tucker and Dave Zessin. Staff Present: Sandra Llanes, Assistant City Attorney; Mishawn Cook, Tax & License Manager; Mary Mead, Licensing Assistant QUASI-JUDICIAL MEETING OUTLINE OF AGENDA 1. Roll Call, July 6th and July 18th Hearing Minutes Review, and Hearing Conductor Assignments Approval Roll call was completed with all five BLA members present. Ms. Cook stated she will take changes to the minutes for August 15th and August 28th, but they will be tabled to next month to give proper public notice. For July 6th minutes, changes were submitted. Member McMurray moved, Tucker seconded, to approve the minutes as amended and motion passed 4-0. Chair Zessin abstained due to absence. For July 18th minutes, changes were submitted. Member Tucker moved, Barker seconded, to approved the minutes as amended and the motion passed 5-0. BLA 9.19.12 Final Minutes Page 1 of 8 There was no public comment concerning hearing conductor assignments. Member McMurray moved, Spalding seconded, to approve hearing conductor assignments. Motion approved 5-0. 2. Matters from the Boulder Police Department Officer Carlene Hofmann reported that she did 59 compliance checks and only had 5 violations. Member Tucker questioned Officer Hofmann concerning the reports for 1100- 1120 Lawrey Lane, regarding numerous incidents in the proximity of Sundown Saloon. Member Spalding suggested RHG should talk to the Sundown Saloon. Carlene Hofmann said she would keep an eye on that area. 3. Matters from the Responsible Hospitality Group Iva Townsend introduced herself and spoke on behalf of the RHG. Ms. Townsend first provided general information about the RHG. Ms. Cook noted that the BLA was previously provided with the September RHG attendance records/membership list in their hearing packet. Ms. Townsend stated that the next meeting would be held at 2:30pm on Wednesday October 3rd at the Hotel Boulderado. The RHG sponsored a door staff fake Id seminar and had 75 attendees present. The RHG plan to participate on the proposed land and use zoning code changes. There are 2 new members that the RHG endorsed for this hearing regarding Agenda item 7 for Fate Brewing Company and Agenda item 8 for Under the Sun Eatery & Taphouse. Ms. Townsend noted for Item number 6 that K's China representative had attended RHG meetings in June, July, and August and that they also attended the Fake ID staff door training. Ms. Townsend advised that there are currently 67 dues paying RHG members. Ms. Townsend said that the Sundown Saloon are not current members, but she would be happy to reach out to them. 4. Matters from the Licensing Clerk: A) Neighborhood Boundaries for October 17, 2012 hearing: i) None B) Informational items: i) September Special Events and Temporary Modifications ii) Liquor License renewal list for this month iii) Liquor Rulemaking at state liquor enforcement division email iv) Email comment regarding Boulder Police Department and past K's China hearing BLA 9.19.12 Final Minutes Page 2 of 8 Mishawn Cook noted that materials related to above items i to iv had been provided to the BLA members in the hearing packets. v) Land Use Alcohol code changes: Karl Guiler with Planning and Development Services was present to provide an overview of the project to BLA: Karl Guiler spoke on behalf of City Planning stating that council will be looking to at new zoning definitions, low intensity establishments vs. higher intensity establishments, and renewals of use reviews or check ins every 3 years to see if business operating in accordance with conditions. Mr. Guiler also noted that the 500 foot waiver for CU campus is being considered as to whether it would be revoked or modifying the rule to beer and wine licenses. At the August 21St council meeting City Council directed that they want options to be explored and they want to decide if these new rules should apply to just University Hill or possibly City wide. Mr. Guiler will go back to City Council in mid- November, and he will be returning on October 17th to a public item at that BLA hearing to have a discussion to be forwarded on to City Council regarding liquor and over- consumption matters. 5. Public hearing and rule making hearing of member Tucker's memo and amendments to Recommended Penalty Schedule's Aggravating and Mitigation Factors for Violation Show Cause Hearings. Member Tucker moved, McMurray seconded, to continue this item to the October hearing. Motion passed 5-0. 6. Public hearing and continued consideration to an April 6, 2012 application from Changlee Inc. d/b/a K's China, 1325 Broadway, Unit 201, Boulder, CO 80302; Bo Mai, President and Registered Manager, and Xiaoguang Xu, Secretary, with a business mailing address 3165 East Yarrow Circle, Superior, CO 80027, on a renewal of Hotel-Restaurant type liquor license. Ms. Llanes clarified that the agenda notice should be amended on the record to remove, "deliberation on an emergency 15 day license suspension". Mike Whitney recorded his appearance as BPD prosecuting attorney. Officer Carlene Hofmann was sworn in. Bo Mai, licensee co-owner, and Kyle McNamara, bar manager, were also sworn in. Bo Mai confirmed premise posting for the required 10 day period and provided testimony. Ms. Llanes had housekeeping items, stating that 3 exhibits need to be marked as Agenda Items, noting the letter from Jenny Long, and the amended stipulation. Ms. Cook stated the updated stipulation from Mr. Whitney was put into the record as Agenda item 29. Mr. Mai waived the procedural rules. Member Tucker was the designated hearing conductor. Member Tucker confirmed there were no ex-parte communications or conflict of interest for BLA members. Member Tucker asked if there was any public comment and asked that they sign in to identify themselves and state if they are in the neighborhood boundaries. BLA 9.19.12 Final Minutes Page 3 of 8 Kevin Hotaling, Vincent Pimentel, Adam Weindling, Chris Williams, Gregory Gargaro, and Cristina King McNamara all signed in to speak and all were sworn in, however only Mr. Pimentel and Mr. Weindling were either residents or business owners or managers of a location within the designated neighborhood so they were the only 2 who were considered interested parties. The BLA stated that the other 4 people could provide comment, but would not be considered parties of interest. Ms. Llanes asked the BLA if all five members listened to the recording of the last 3 meetings. All five BLA members confirmed that they had listened to the recordings of hearings when they were not present. Ms. Llanes then gave a summary of K's China previous hearings at the last three BLA hearings regarding several violations. Member Tucker confirmed Mr. Mai did not have an attorney and wants to proceed without an attorney. Mr. Whitney proposed to the BLA the stipulation with conditions marked as agenda item 29 and asked the BLA whether they would accept this stipulation or move forward with the renewal hearing. Member Tucker confirmed that this hearing record will incorporate the testimony from the June 20, July 6, and August 15 hearings. Chair Zessin stated that he would want changes to the stipulation with conditions document if the Authority were to approve it. Member Spalding moved, Zessin seconded, to move forward with the hearing without accepting the offered stipulation with conditions as submitted. Motion passed 3-2 with Members McMurray and Tucker voting against. Detective Heather Frey with Boulder Police Department was sworn in and provided testimony about a K's China bartender that was intoxicated while on duty on November 1St' 2008. Officer Rebecca Bostrack from the Boulder Police Department was sworn in and provided testimony and summary about a July 3, 2010 dispatch call of a noise complaint where she encountered and spoke with Bo Mai. Officer Bostrack wrote a ticket for unreasonable noise ticket referenced as 68602 under exhibit 6. Mr. Mai said he objected to Officer Bostrack's testimony since the incident took place over 2 years ago. Member Tucker overruled the objection and submitted the police testimony as evidence. Mr. Whitney moved to admit prosecutor's exhibit 1 police report for unreasonable noise ticket. Member Spalding asked about the narrative that the other two officers with Officer Bostrack had added, one of which was Officer Mike Marquez. The narrative describes the doorman prevented the Officer entry and the Officer had to push him out of the way. Helen Wu, co-owner's wife, stood up in the audience to object. Ms. Wu was then sworn in and provided testimony. Ms. Wu asked if this is relevant given how long ago certain incidents happened and is this necessary. Member Tucker explained that this is relevant and the BLA members will decide what will be taken into account. Officer Mike Marquez from the Boulder Police department was sworn in and provided testimony about a contact that he had with co-owner, Mr. Xiaoguang Xu, on June 20, 2010 for a noise violation. Officer Marquez paced 100 paces (about 300 feet away) from the BLA 9.19.12 Final Minutes Page 4 of 8 rooftop patio of K's China and it was noted that the ticket was included in exhibit 6 as ticket G85984 for unreasonable noise. Mr. Whitney submitted the ticket as prosecutor's exhibit 2. Officer Marquez also testified about February 11th, 2012 when he dealt with an intoxicated female, at K's China for ticket 12-1948. Officer Marquez testified that the ticketed female told him there were several other patrons under the age 21 at the bar and many underage patrons drank at that bar, and that she also said she knew the bar manager, Kyle McNamara, who let her in, without showing any ID. Mr. Whitney then submitted Ticket G 90455 as prosecutor's exhibit 3. Officer Rick French from the Boulder Police Department was sworn in and provided testimony about the night of May 2, 2012 when he cited two intoxicated and underage people at K's China. Officer French further stated that he has not had any noise complaints since June 20th, 2012. Mr. Whitney entered Officer French's tickets as prosecutor's exhibit 4. Officer Kelly Haralson, state liquor enforcement officer, was sworn in and provided testimony about a random inspection of K's China on February 29, 2012, during which she observed several violations of the liquor code. Officer Sterling Ekwo from the Boulder Police Department was sworn in and provided testimony about observations from May 16, 2012 when he was in the area of K's China at bar close time when a fight started at K's China. Mr. Whitney entered Officer Ekwo's ticket from May 16 as prosecutor's exhibit 5. Officer Eric Talley, from the Boulder Police Department was sworn in and provided testimony about a traffic stop under the K's China rooftop patio on June 20, 2012. Officer Talley observed that a pitcher was thrown off the upper right corner of the rooftop 2-3 feet from the police vehicle and Officer Talley entered the rooftop patio at that time to investigate. Mr. Whitney entered Officer Talley's report of this matter as prosecutor's exhibit 6. K's China provided evidence as follows: agenda 6, exhibit 30 was a letter from Marc Ost and agenda 6, exhibit 31 were K's summary of improvements, alcohol procedures and incident log. K's China also provided testimony from several employees' that may be summarized as explanations of incidents at K's China as below listed. Mr. Casey Crowder, a K's China bartender, recounted an issue with an intoxicated patron who tried to come back behind the bar. The patron, Mr. Nick Boschert, reported the bartender had then punched him several times after he tried to go behind the bar for water. Mr. Crowder then gave a different story that the patron had worked there, that he was intoxicated, and he tried to go behind the bar for alcohol. Neither the bartender nor the patron pressed charges. BLA 9.19.12 Final Minutes Page 5 of 8 Phil Hemgemuhle, K's China, was sworn in and provided testimony on behalf of K's China about his employment at the restaurant. Kyle McNamara, bar manager, also provided testimony on behalf of K's China. Mr. McNamara testified that he has turned in fake IDs to officers on University Hill and that since June 20th he has turned in 20-26 fake IDs, but prior to that less than a dozen licenses were turned in. Now K's China is only turning IDs into Officer Carlene Hofmann and they are now keeping a log of when they turn the IDs in. They are also now keeping an incident logbook too. Mrs. Christine King McNamara, Kyle McNamara's mother, was sworn in and provided testimony in favor of K's China. She stated that she has frequented the establishment for numerous events, and often the music they heard when the parked in the parking lot of K's China was coming from other areas, but that it was not from K's China. Adam Weindling, student at CU who works as a DJ on the hill, was sworn in and provided testimony on behalf of K's China. Mr. Weindling stated that after K's China was shut down for the 15 day emergency suspension, the culture at the business has changed. Member McMurray asked if Mr. Weindling had Wed on the K's China rooftop patio since July 6th when the condition not to have DJ's on the rooftop patio was enacted. Mr. Weindling testified he had Wed on the K's China rooftop patio. Member McMurray noted then that K's China had just violated the most recent agreement which stated they were not allowed to have DJ's on the rooftop. The hearing was closed for deliberation. Member Spalding spoke against the renewing the license. Member Barker stated that she was willing to look at the offered stipulation. Chair Zessin stated that he did does not feel they have complied with the requirements of their license. Members McMurray and Tucker noted willingness to look at the stipulation with conditions. The BLA members then had a lengthy discussion and determined amendments to the offered stipulation with conditions. Licensee agreed to the amended stipulation with conditions. The final signed document of the final stipulation as re-drafted by the Authority is attached to these minutes. Member McMurray moved, Barker seconded, to renew this Hotel-Restaurant liquor license, conditioned on compliance with attached license conditions. Motion passed 4-1 with Member Spalding voting against the renewal of K's China license. 7. Public hearing and consideration of July 16, 2012 application from Fate Restaurants LLC d/b/a Fate Ale House & Brewing Company, 1600 38th Street, Boulder, CO 80301; Michael Lawinski, Managing, Branks, LLC as 10% Owner (Sheryl Lawinski, Member), and Kalaloo LLC as 10% Owner (Raymond Clarke, Member), and with 7 other LLC members and none owing over a 10% interest, with a premise business mailing address, for a new Brew Pub type liquor license. BLA 9.19.12 Final Minutes Page 6 of 8 Mike Lawinski, applicant co-owner, was sworn in, and provided testimony about this new license application and confirmed premise posting for the required 10 day period. Chair Zessin conducted the hearing. It was confirmed that BLA members did not have any conflicts of interest or ex-parte communications. The licensee waived the reading of the procedure rules. No third parties requested interested party status and there was no public comment provided. Mr. Lawinski explained the details of opening of their new restaurant with a Brew Pub liquor license. The Authority discussed the new application. Member Spalding moved, Barker seconded, to approve the new Brew Pub license application. Motion passed 5-0. 8. Public hearing and consideration of a July 16, 2012 application from You Eat More Enterprises LLC d/b/a Under the Sun Eatery and Taphouse, 627 A S Broadway, Boulder, CO 80305;Kevin Daly, Managing Member and 30% Owner, Timothy McMurray, Managing Member, Proposed Registered Manager, and 25% Owner, and Paul Nashak, Managing Member and 25% Owner, and 4 other owners none owning over 10% Interest, with a business mailing address of 1535 Pearl Street, Boulder, CO 80302, for new of a Hotel-Restaurant type liquor license. Member Tucker and Member McMurray recused themselves for this item. Kevin Daly and Paul Nashak, applicant co-owners, were both sworn in, both provided testimony about this new license application, and Mr. Daly confirmed premise posting for the required 10 day period. Member Barker conducted the hearing. Member Barker confirmed with the BLA members that the remaining BLA members did not have any other conflicts of interest or ex-parte communications. The licensee waived the reading of the procedure rules. No third parties requested interested party status and there was no public comment provided. Mr. Daly explained the details of opening of their new restaurant. The authority discussed the new application. It was noted for the record that preliminary findings need to be amended to the correct address of 627 S. Broadway and that the IHR item 9 needs to be amended related to license violations. Member Spalding moved, Barker seconded, to approve this new Hotel-Restaurant liquor license. Motion passed 3-0. 9. Matters from the Assistant City Attorney No matters from the City attorney. 10. Matters from the Chair and Members of the Authority: Members Richard Tucker and Tim McMurray re-joined the BLA hearing. Member Spalding shared with the rest of the board that she felt they had the ability to make serious changes towards problem licensed locations, but after the matter with K's China, she does not feel the BLA has done their job related to enforcement issues. The BLA discussed this comment and the hearing in general. BLA 9.19.12 Final Minutes Page 7 of 8 ADJOURNMENT Member Barker moved, McMurray seconded, to adjourn the meeting. Motion passed 5-0, and thus the hearing was adjourned at 1:28 a.m. TIME AND LOCATION OF FUTURE MEETINGS, COMMITTEES OR SPECIAL HEARINGS: 3rd Wednesday of every Month at 4PM through September 19, then 3PM starting October 17, in City Council Chambers for 2012. Attested: Approved: 1 ~ Mishawn J. Cook, Tax and License Manager Beverage Lice nsin Authority Chair BLA 9.19.12 Final Minutes Page 8 of 8