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MINUTES
REGULAR MEETING OF
LAKEWOOD LIQUOR AND FERMENTED MALT BEVERAGE
LICENSING AUTHORITY
December 11, 2008
A Regular Meeting of the Lakewood Liquor and Fermented Malt Beverage Licensing Authority was held on this date in the City Council Chambers.
ITEM 1 – CALL TO ORDER
Hearing Officer Richard Miller called the meeting to order at 2:05 p.m.
ITEM 2 – NEW APPLICATION
Hotel & Restaurant License
Great Wall Super Buffet, Inc.
d/b/a Great Wall Super Buffet
3215 S. Wadsworth Blvd.
Wen Ling Lu, 3215 S. Wadsworth Blvd., Lakewood, CO 80227, was sworn in and stated she was one of the owners of Great Wall Super Buffet.
Esther Choi, Interpreter for the licensee, was sworn in and stated the language she would be interpreting was Mandarin Chinese.
Paul Kennebeck, Lakewood Deputy City Attorney, stated that his office had reviewed the file and that this restaurant had been in operation for several years and was now applying for a liquor license.
Ms. Lu stated that she had been in business for four years and that their customers had been asking that they serve beer and wine and she decided to apply for a liquor license.
There was a question and answer period between Mr. Miller and Ms. Lu.
In answer to Mr. Kennebeck’s questions, Ms. Lu stated that she was familiar with the Colorado Liquor Code regarding serving minors and intoxicated persons. Ms. Lu stated that she had never had a liquor license before and that she had not attended the Lakewood Alcohol Awareness Class.
Mr. Kennebeck asked the Liquor Licensing Authority to recommend that Ms. Lu attend a TIPS class or the Lakewood Alcohol Awareness Class, if the license was approved.
Ms Wamboldt stated that she had the new class schedule for the Lakewood Alcohol Awareness Class and gave it to Ms. Lu.
Ms. Lu stated that she had taken a TIPS class and had a copy of her certificate with her. Ms. Lu stated that her employees had not taken a class yet but that she was going to have an in-house training for her employees.
Lenora Moore, Lakewood Liquor Inspector, stated that on rare occasions, she and Lakewood Police Agent Sarnacki, who also taught the Lakewood Alcohol Awareness Class, had gone to establishments that were just opening to do a class. Ms. Moore stated that it was much easier to do the training at City Hall but for a large group of employees, they were willing to go to an establishment.
Kelly Pietrs, 2792 S. Race St., Denver, CO 80210, was sworn in and stated that she was the Managing Member of Esquire Petitioning Services. Ms. Pietrs stated the procedures used to do the petitions and explained the results of the survey.
Mr. Miller having found that all of the requirements for a Hotel & Restaurant License had been satisfied, approved the application for a Hotel & Restaurant License for Great Wall Super Buffet, Inc., d/b/a Great Wall Super Buffet, located at 3215 S. Wadsworth Blvd. Mr. Miller stated that he was requesting that the applicant attend the Lakewood Alcohol Awareness Class and that she arrange for some training for her employees.
ITEM 3 – MANAGER’S REGISTRATION
Hotel & Restaurant License
MP II Colorado, LLC
d/b/a The Oven
7167 W. Alaska Dr.
Brian Cauley, 1055 Clarkson St., Unit 6, Denver, Co, 80218, was sworn in and stated he was the Operations Manager for The Oven.
Stephen Townsend, 447 Wright St., Unit 315, Lakewood, CO 80228, was sworn in and stated he was the General Manager for The Oven.
Mr. Kennebeck stated that the Lakewood Police Department did a background check on Mr. Townsend and found some information in Mr. Townsend’s background that had not been revealed on his application. Mr. Kennebeck stated that a letter stating that fact was mailed to Mr. Townsend and that Mr. Townsend had then requested an appeal hearing before the Lakewood Liquor Licensing Authority. Mr. Kennebeck stated that Mr. Townsend failed to accurately supply information on two different application forms, one was the State of Colorado form and one was the City of Lakewood form. Mr. Kennebeck stated that The Oven holds a Hotel & Restaurant License and that State Statute 12-47-411(8) states that each Hotel & Restaurant Licensee shall register the manager of each liquor licensed premises. Mr. Kennebeck stated that State of Colorado Regulation 47-310(D) states, “All information submitted to any licensing authority, by application for license or otherwise, shall be given fully, faithfully, truthfully and fairly. Mr. Kennebeck stated that besides the statutory citations, several times on the application forms, it was made clear that the questions must be answered completely and fully, otherwise it was considered perjury.
Robert Major, Lakewood Police Sergeant, was sworn in.
Mr. Kennebeck gave Exhibit #1 to Mr. Miller, the Hearing Officer, which contained the Background Investigation Report for Managers, Model Summons & Complaint or Penalty Assessment dated March 16, 2008, Model Summons & Complaint or Penalty Assessment dated September 2, 2007 and the Colorado Department of Revenue Individual History Record and the driving record for Mr. Townsend. Mr. Kennebeck stated that he had given copies of Exhibit #1 to Mr. Townsend and to Sgt. Major.
Mr. Kennebeck asked Sgt. Major to read the paragraph on the first page, the paragraph on page six and question #58 of the Background Investigation Report for Managers.
In answer to Mr. Kennebeck’s questions, Sgt. Major stated the response to question #58. Sgt. Major stated that, as a result of the police department’s investigation, there were some additional arrests in Mr. Townsend’s background that were not disclosed on the Background Investigation Report. Sgt. Major stated the additional arrests. Sgt. Major stated the response to question #60. Sgt. Major stated that the investigation indicated that Mr. Townsend did not disclose all of his traffic charges and Sgt. Major stated the traffic charges that were not disclosed on the form.
Mr. Kennebeck gave Sgt. Major documents relating to failure to disclose, one dated September of 2007, where Mr. Townsend had no drivers license in Lakewood and one dated March of 2008, where Mr. Townsend had a “Driving under Revocation” ticket. Mr. Kennebeck stated that although the language that Sgt. Major had read earlier about failure to disclose items can lead to perjury, it was these two recent charges that Mr. Kennebeck was interested in. Mr. Kennebeck stated that the he and the police department were not interested in the traffic tickets that occurred a decade ago.
In answer to Mr. Kennebeck’s questions, Sgt. Major stated the charge listed on the Model Summons & Complaint or Penalty Assessment dated March 16, 2008, which stated that Mr. Townsend was charged with driving a vehicle when his driver’s license was under restraint, revoked or denied. Sgt. Major stated that one of his detectives had called the courts and gotten the disposition of that case. Sgt. Major stated that this case was pled down to a charge of “allowed unauthorized minor to drive.” Sgt. Major stated the charge listed on the Model Summons & Complaint or Penalty Assessment dated September 2, 2007, was “drove vehicle without valid driver’s license.” Sgt. Major stated that this charge was dismissed. Mr. Kennebeck asked Sgt. Major to read the section of the Colorado Individual History Record entitled “Oath of Applicant”. Sgt. Major stated the response to questions #10 and #12. Sgt. Major stated that the same charges that were not disclosed on the Background Investigation Report were not disclosed on the Individual History Record.
Mr. Townsend had no questions for Sgt. Major.
In answer to Mr. Miller’s questions, Sgt. Major stated that he had copies of the reports relating to for the charge in 1995 regarding a deadly weapon and one in 1992 for forgery. Sgt. Major stated that he did not have the disposition for either case. Sgt. Major stated that he did have a document that stated that Mr. Townsend was ordered by the courts to forfeit the knife that he had that was a result of the illegal weapons charge. Sgt. Major stated that he did not have the disposition of the charge in June of 2003 for “Failure to Appear” that stemmed from the D.U.I. arrest in 2003 in El Paso County.
Exhibit #1 was admitted into evidence.
In answer to Mr. Miller’s questions, Mr. Townsend stated that he had never applied for a liquor license before and did not realize the severity and lengthy detail that was required on the forms and stated his apology. Mr. Townsend stated that he did read the introductory notice on the Lakewood Background Investigation Report for Managers which states that the information would be checked for truthfulness and he did read the certification on the back of the form. Mr. Townsend stated that it was a matter of carelessness on his part and that he was not trying to conceal anything.
In answer to Mr. Kennebeck’s questions, Mr. Townsend stated that he did not deny the truthfulness of Sgt. Major’s testimony.
In answer to Mr. Miller’s questions, Mr. Townsend stated that he was currently working at The Oven and that Mr. Cauley was the current registered manager.
Mr. Cauley stated that he was recently approved as the manager at another restaurant that was opening up in Belmar. Mr. Cauley stated that his manager’s position at the new restaurant had been put on hold until after this hearing.
Mr. Townsend stated that since he received the letter recommending denial of his application to be the manager at The Oven, he had taken the Lakewood Alcohol Awareness Class. Mr. Townsend stated that during the most recent Lakewood Police Department Compliance Check, one of his staff members, whom he had trained, passed the compliance check. Mr. Townsend stated that he took his job very seriously and that he was not the most responsible person with his personal finances and that had constituted to some of his charges, directly with the failure to pay child support payments. Mr. Townsend stated that since then, he had been having those payments deducted from his paycheck and that he was current on all of his payments. Mr. Townsend stated that he had been a manager with The Oven for a little over two years. In answer to Mr. Miller’s questions, Mr. Townsend stated that the “Failure to Appear” in June of 2003, as a result of a D.U.I. in July of 2001 in El Paso County, was a result of a failure to comply with his probation. Mr. Townsend stated that he lost the paperwork stating that he had completed all of his community service. Mr. Townsend stated that when he turned in his paperwork, he was under the impression that he was turning in all of the required information and did not realize he was missing the proof of community service. Mr. Townsend stated that he was living in Jefferson County at the time and commuting back and forth from Lakewood to Colorado Springs, dealing with the court system and, in the process, lost his paperwork for the community service and a warrant was issued. Mr. Townsend stated that he was not aware that a warrant had been issued until he was arrested for his second D.U.I. Mr. Townsend stated that he was held in jail for 33 days.
Mr. Kennebeck did not make any closing arguments.
Mr. Cauley stated that Mr. Townsend had been working for The Oven for quite a few years now and had been the General Manager for about 15 months. Mr. Cauley stated that Mr. Townsend had been responsible for all the hiring and training, especially the alcohol-training program. Mr. Cauley stated that they had never had any issues as far as over serving or serving underage. Mr. Cauley stated that there were several restaurants in Belmar who had been fined for serving minors but that The Oven had never had any issues with that. Mr. Cauley stated that Mr. Townsend had been doing an excellent job as far as the hiring and training were concerned. Mr. Cauley stated that Mr. Townsend took the alcohol training extremely seriously.
Mr. Miller stated that the violations that had been pointed out by the City that were not disclosed on the forms probably would not have formed a basis on which to deny the manager’s registration. Mr. Miller stated that while he could not condone or trivialize the failure to accurately complete the documents, he did not find that there was any evidence that there was a conscientious attempt to mislead the City in any way.
Mr. Miller stated that it was certainly not appropriate and was certainly careless, but he could not find that there was an intentional attempt by Mr. Townsend to misrepresent his record or to conceal from the City any of the violations. Mr. Miller stated that it was troubling and that he respected the City and the police department in bringing these issues to the attention of the Authority but the nature of the violations, themselves, would not be a basis for denial.
Mr. Miller moved to approve Mr. Townsend as manager of The Oven.
ITEM 4 – SHOW CAUSE HEARING
Hotel & Restaurant License
BMJ, Inc.
d/b/a Eck’s Saloon
Ms. Wamboldt stated that the City had asked for a continuance of the hearing for Eck’s Saloon in order to have time to subpoena their witnesses. Ms. Wamboldt stated that the hearing was administratively continued to February 12, 2009.
ITEM 5 – SHOW CAUSE HEARING
Hotel & Restaurant License
The Penalty Box, Inc.
d/b/a The Penalty Box Bar and Grill
1862 S. Wadsworth Blvd.
Andrew Hogle, Registration No. 39760, stated that he was the attorney representing The Penalty Box, Inc.
Mr. Kennebeck stated that the City had issued a complaint based upon the fact that a fight had occurred at The Penalty Box Bar and Grill. Mr. Kennebeck stated that all of the parties would admit that there had been a fight but that their defense would be something other than the fight had occurred on their premises. Mr. Kennebeck stated that it was the City’s position that the fight did occur on the licensed premises and that was a violation of State of Colorado Regulation 47-900A, Conduct of Establishment. Mr. Kennebeck stated that it was a clear violation to have a fight and disorderly conduct. Mr. Kennebeck stated that he had a witness who would testify regarding the fight.
Mr. Hogle stated the City had characterized this incident as a fight and that it was their contention that this was actually an assault. Mr. Hogle stated that according to multiple witnesses, as well as the Lakewood Municipal Court, itself, this was an assault. Mr. Hogle stated that a fight involves two or more parties actively involved in an altercation. Mr. Hogle stated that according to witnesses and the police report, the victim, Mr. Pugh, did not fight back when he was attacked. Mr. Hogle stated that Mr. Pugh was struck over the head by a beer bottle and then pummeled while he was on the ground and the assailant then fled. Mr. Hogle stated that he had witnesses who would testify that this was a single, isolated incident. Mr. Hogle stated that the bar did not have a reputation for rowdiness or disturbing the peace. Mr. Hogle stated that the event was entirely unforeseeable and that the staff and patrons did everything they could to stop the incident from escalating further. Mr. Hogle stated that the staff did not serve visibly intoxicated patrons or otherwise enable the incident in any way. Mr. Hogle stated that considering the staff acted responsibly and reasonably, The Penalty Box should not be held liable under the statutes or under the common law. Mr. Hogle stated that his should not be considered a violation of Regulation 47-900A.
Alicia Harris, Lakewood Patrol Agent, was sworn in and in answer to Mr. Kennebeck’s questions; Agt. Harris stated that on July 26, 2008 at approximately 7:30 p.m., she responded to The Penalty Box for an assault that had occurred. Agt. Harris stated that when she arrived on scene, medical personnel were attending to the victim so she talked to the patrons to try to find out if they had seen what had happened. Agt. Harris stated that she did not speak to the victim until she responded to the hospital. Agt. Harris stated that the victim was taken to the hospital due to an injury to his head. Agt. Harris stated that she spoke to Phillip Stock, who said that he saw the suspect hit the victim with the beer bottle and that the suspect “went off” on the victim and then started punching the victim. Agt. Harris stated the name of the suspect was Joshua Vossel. Agt. Harris stated that she spoke to one of the bartenders and that the bartender said that she saw Mr. Vossel and the victim arguing over a chair at a poker table. Agt. Harris stated that the bartender said she saw beer being thrown and saw Mr. Vossel hitting the victim. Agt. Harris stated that she spoke to the victim, Joshua Pugh, in one of the exam rooms at the hospital and he said that somebody tried to sit in one of the chairs and he told the man that the chair was saved. Agt. Harris stated that Mr. Pugh said that the guy started to walk away and then made a statement, “Here’s where I walk away or kindly kick you’re a**” and Mr. Pugh said, “Whatever” to Mr. Vossel. Agt. Harris stated that Mr. Pugh said that Mr. Vossel came back towards him with a beer bottle and Mr. Pugh said he ducked and got hit in the head with the beer bottle. Agt. Harris stated that, for the most part, the other patrons confirmed the events Mr. Pugh had said. Agt. Harris stated that there was some confusion as to whether Mr. Pugh got hit with the beer bottle or if the beer bottle was thrown towards him. Agt. Harris stated that Mr. Pugh complained of injuries to the back of his head, pain in his left hand and a scratch on his right shin. Agt. Harris stated that Mr. Pugh had said that he and his girlfriend got to The Penalty Box around 6:30 p.m. that night. Agt. Harris stated that when Mr. Vossel went to court in November, he was convicted and found guilty of assault.
Mr. Kennebeck gave Mr. Miller a copy of the Record of Actions, which indicated the result of Mr. Vossel’s court case, and was marked as City’s Exhibit #2. Mr. Kennebeck stated that he had given a copy to Mr. Hogle and to Agt. Harris.
In answer to Mr. Kennebeck’s questions, Agt. Harris stated that the violation date on the Record of Actions was July 26, 2008. Agt. Harris stated that this was the record of the trial for Mr. Vossel where she had testified on November 17, 2008. Agt. Harris stated that the Record of Actions stated that Mr. Vossel was found guilty.
Mr. Miller stated that City’s Exhibit #2 was admitted into the record.
In answer to Mr. Hogle’s questions, Agt. Harris stated that she was not present at The Penalty Box when the incident occurred. Agt. Harris stated that Mr. Vossel was not at the bar when she arrived on scene and that Mr. Pugh was still at the bar but was in the process of being taken to the hospital. Agt. Harris stated that she saw Mr. Vossel on July 28, 2008, which was two days after the incident occurred. Agt. Harris stated that she could not say whether Mr. Vossel or Mr. Pugh had been visibly intoxicated on the night of the assault. Agt. Harris stated that everything in her report was based on witness testimony.
In answer to a question from Mr. Miller, Agt. Harris stated that there were no witness descriptions as to the condition of Mr. Vossel on the night of the incident.
Joshua Pugh, 1797 W. Powers Ave., Littleton, CO 80120, was sworn in and in answer to Mr. Hogle’s questions, stated that he arrived at The Penalty Box at approximate 6:30 p.m. Mr. Pugh stated that he went there to play poker and goes there a couple of times a week. Mr. Pugh stated that he was not served any alcohol while he was at the bar and had drunk only a glass of water. Mr. Pugh stated that he had drunk a pitcher of beer between 1:00 p.m. and 6:30 p.m. before arriving at The Penalty Box. Mr. Pugh stated that he had sat down at one of the tables and the seat next to him was saved. Mr. Pugh stated that Mr. Vossel tried to sit in the seat and he kindly told Mr. Vossel that the seat was saved. Mr. Pugh stated that Mr. Vossel stood up and walked away and said, “This is where I walk away or kindly beat you’re a**.” Mr. Pugh stated that he said, “Whatever” and the last thing he remembered was Mr. Vossel turning around with a bottle in hand and throwing it. Mr. Pugh stated that that was the last thing he remembered. Mr. Pugh stated that he had never met Mr. Vossel before that night. Mr. Pugh stated that he did not remember Mr. Vossel being loud or obnoxious or yelling at anyone. Mr. Pugh stated that he had no reason to suspect that Mr. Vossel would become violent. Mr. Pugh stated that he did not fight back when he was hit with the bottle. Mr. Pugh stated that he had been going to The Penalty Box for at least three years and, in that time, he had never seen anyone involved in a fight there.
Tina Moffitt, 1797 W. Powers Ave., Littleton, CO 80120, was sworn in and in answer to Mr. Hogle’s questions, stated that she was Mr. Pugh’s girlfriend. Ms. Moffitt stated that she had not had anything to drink that night at The Penalty Bar. Ms. Moffitt stated that when Mr. Pugh sat down to play poker, she saw Mr. Vossel approach Mr. Pugh. Ms. Moffitt stated that she walked over to listen in on the conversation. Ms. Moffitt stated that she had never seen Mr. Vossel before that night. Ms. Moffitt stated that she had no reason to suspect that Mr. Vossel might become violent until she heard the comment he said to Mr. Pugh. Ms. Moffitt stated that before the incident, Mr. Vossel was not yelling or being rowdy. Ms. Moffitt stated that she saw Mr. Vossel walk away and then he threw the beer bottle at Mr. Pugh. Ms Moffitt stated that Mr. Pugh tried to duck and was hit on the back of the head. Ms. Moffitt stated that Mr. Vossel proceeded to pummel Mr. Pugh while he was on the floor. Ms. Moffitt stated that she jumped on top of Mr. Vossel and started hitting Mr. Vossel to try to defend Mr. Pugh because he was not responding at all. Ms. Moffitt stated that the incident lasted about one to two minutes. Ms. Moffitt stated that the incident happened so fast that there was nothing anybody could have done to prevent it from happening.
In answer to Mr. Kennebeck’s questions, Ms. Moffitt stated that when she goes to The Penalty Box, it is mainly a poker crowd. Ms. Moffitt stated that they have fun, have a couple of drinks and play poker. Ms. Moffitt stated that there is a bar area, a bigger area where the poker tables are set up and a separate room in the back of the building. Ms. Moffitt stated that the fight occurred in the area where the poker tables are. Ms. Moffitt stated that there were probably about 30 to 40 people in that area the night of the incident, standing around and talking. Ms. Moffitt stated that she signed the petition in favor of The Penalty Box and that she knew a lot of the people who signed the petition.
In answer to Mr. Miller’s questions, Ms. Moffitt stated that Mr. Vossel had a beer in his hand but she did not know how long he had been at the bar. Ms. Moffitt stated that he was not slurring his words and that he seemed pretty sober. Ms. Moffitt stated that she was either pushed off of Mr. Vossel or pulled off of him and that someone pulled Mr. Vossel off of Mr. Pugh. Ms. Moffitt stated that Mr. Vossel ran out the door and left right away.
Patrick Delants, 7574 Halleys Drive, Littleton, CO 80215, was sworn in and stated that he was the owner and manager of The Penalty Box. In answer to Mr. Hogle’s questions, Mr. Delants stated that when he took over the bar, there were some bad elements there but that changed within the first six months that he owned it. Mr. Delants stated that they now have a pleasant crowd that comes in and they don’t usually have any altercations. Mr. Delants stated that he tried to operate his establishment in a decent and orderly manner. Mr. Delants stated that he was at the bar on July 26, 2008. Mr. Delants stated that on poker nights, the bar fills up. Mr. Delants stated that he had one bartender and one bartender-in-training on duty that night. Mr. Delants stated that he did not witness the incident, himself. Mr. Delants stated that he saw Mr. Vossel when he entered the bar and that Mr. Vossel was a Tuesday night regular. Mr. Delants stated that Mr. Vossel was served a bottle of Budweiser. Mr. Delants stated that he had seen Mr. Vossel both intoxicated and sober, and he was sober on the night of the incident. Mr. Delants stated that he did not see Mr. Pugh enter the bar but saw him later. Mr. Delants stated that he had seen Mr. Pugh sober and intoxicated and that Mr. Pugh was sober that night. Mr. Delants stated that Mr. Pugh was drinking water. Mr. Delants stated that Mr. Vossel and Mr. Pugh had never started any fights or been rowdy or troublesome in the past. Mr. Delants stated that he had no reason to suspect a feud between the two men.
Mr. Hogle asked to Mr. Delants read excerpts from Colorado Statute 12-47-901.
In answer to Mr. Hogle’s questions, Mr. Delants stated that he did not have any notice that Mr. Vossel posed an unreasonable risk of physical harm to his patrons. Mr. Delants stated that while he was cooking food for a patron, one of the patrons came into the back and told him about the incident. Mr. Delants stated he then observed Mr. Pugh on the floor and patrons stated that Mr. Vossel had run out the side door. Mr. Delants stated that he ran out the side door to try and catch Mr. Vossel, but he had already left. Mr. Delants stated that they sat Mr. Pugh down and got him some ice for his head. Mr. Delants stated that Mr. Pugh said that he felt dizzy and the paramedics were called. Mr. Delants stated that poker nights are Tuesdays, Thursdays, Saturdays and Sundays. Mr. Delants stated that the poker nights do not normally inflame fighting and that he had never hired any security guards. Mr. Delants stated that Mr. Vossel tried to come back to The Penalty Box and was told he was not welcome there any more. Mr. Delants stated that when someone poses a problem, he is kicked out of the bar and not allowed to come back. Mr. Delants stated that if a patron refuses to leave, then they call the police. Mr. Delants stated that when the sign for the Show Cause Hearing was posted on the door, a lot of the patrons wanted to sign the petition and letters. Mr. Delants stated that the incident happened within a matter of seconds and there was no way he could have prevented it from happening. Mr. Delants stated there had not been any arguing or bolstering before the incident or any indication that Mr. Vossel was going to assault Mr. Pugh.
Mr. Miller called a recess at 3:39 p.m. and the meeting was back in session at 3:47 p.m.
In answer to Mr. Kennebeck’s questions, Mr. Delants stated that he did not have any security guards and that his bartenders check I.D.s. Mr. Delants stated that there were about 40 people in the bar the night of the incident. Mr. Delants stated that one bartender works the main bar and the other bartender is out on the floor. Mr. Delants stated that on poker nights, all four of the poker dealers work for him. Mr. Delants stated that one of his dealers, Phillip Stock, helped to separate the two patrons during the incident. Mr. Delants stated that the poker dealers are not trained as security guards. Mr. Delants stated that this was the first assault in three years and that he would not characterize it as a fight because both parties were not inclined to take part. Mr. Delants stated that if his bartenders see someone getting out of hand, they are to get him and call the police. Mr. Delants stated that he called the police once before when a gentlemen came from the bar across the street and tried to get served in The Penalty Box and wouldn’t leave when he was told they would not serve him. Mr. Delants stated that there were times in the past when people became rowdy and unruly and they phoned the police to remove the patrons instead of having them fight with other patrons. Mr. Delants stated that the assault took place in a matter of seconds and that he was not responsible for the assault. Mr. Delants stated that if he had had prior knowledge of the assault, then it would have been his responsibility. Mr. Delants stated that no one could stop a fight that was that abrupt. Mr. Delants stated that with the same circumstances, if it happened tonight, tomorrow night or the next night, he would not be responsible for the incident.
In answer to Mr. Hogle’s questions, Mr. Delants stated that he had no prior knowledge of Mr. Vossel’s character, other than what he had observed in the bar, which had been that of a peaceful, law-abiding citizen until the incident occurred.
In answer to Mr. Miller’s questions, Mr. Delants stated that Mr. Vossel hit Mr. Pugh three times, got up and left through the door. Mr. Delants stated that Mr. Vossel was roughly 6’6” tall and weighed about 280 lbs and that there weren’t a lot of people who could stop him if he wanted to attack someone else. Mr. Delants stated that if a group or person is asked to leave and there are any problems or hesitation, then they call the police. Mr. Delants stated that he has had to call the police maybe four times. Mr. Delants stated that he does serve food to his patrons and that he has a full menu. Mr. Delants stated that he cooks the food and the bartenders serve it.
Mr. Kennebeck stated he had two main points, one being the charge was not strictly that there was a fight on the premises but under Regulation 47-900, the incident raises a number of issues including rowdiness, undue noise and disturbances that were offensive to the senses of the average citizen or the residents of the neighborhood, including disorderly conduct as defined by the State Statute. Mr. Kennebeck stated that the State Statute lists a number of offenses including fights and unreasonable noise, as well as a caveat at the beginning, which states a person commits disorderly conduct if he intentionally, knowingly or recklessly allows these things to occur. Mr. Kennebeck stated that there was no testimony today that this incident happened intentionally or knowingly but there was the “recklessly” aspect. Mr. Kennebeck stated that the second point was that there wasn’t any question regarding the fact that this assault occurred. Mr. Kennebeck stated that the defense that there was no liability because of the way the incident occurred was a common defense that was raised in these situations. Mr. Kennebeck stated that according to Mr. Delants, if the incident occurred tonight, he would not be held liable and if it happened again tomorrow night the exact same way, he would not be held liable. Mr. Kennebeck stated that at some point, a licensee was responsible for activities in his establishment. Mr. Kennebeck stated that it was one thing to say that a person does not have constructive knowledge of certain events but in the arena of liquor licensing, which is highly regulated, cases over and over state that society has a concern about the way licensed premises are operated, and that the defense that simply because the licensee did not know it was going to happen makes him not responsible, does not apply.
Mr. Hogle stated that the City can speculate all it wants about what may or may not happen in the future or what duties may or may not be breached in the future, but as yet, there was not a pattern of bad behavior at The Penalty Box. Mr. Hogle stated that this was a single, isolated incident. Mr. Hogle stated that there was a record of three years and one incident. Mr. Hogle stated there was testimony that this was a very brief incident, lasting a matter of seconds that under any reasonable standard could not have been prevented. Mr. Hogle stated that there was testimony from multiple witnesses, including a petition by over 150 regular patrons attesting that this was a single incident and the bar was not prone to rowdiness, undue noise or other disturbances or activity offensive to the average citizen. Mr. Hogle stated that this was not the kind of place where those things happen, that maybe it was before three years ago, but it wasn’t any more. Mr. Hogle stated that he did not know of any bar in the state with multiple bouncers that could have stopped the incident from progressing any faster than the patrons did. Mr. Hogle stated that Mr. Vossel was removed from the bar almost immediately, whether by his own volition or with the help of the poker dealer. Mr. Hogle stated that when you have 30 or 40 people on a Saturday night conducting activities, that it was unrealistic to anticipate any and all possible security risks. Mr. Hogle stated that as to Regulation 47-900, there are a number of different prongs to this regulation. Mr. Hogle stated that he was not exactly clear as to which one the City was charging The Penalty Box with violating. Mr. Hogle stated that there was testimony supporting the notion that The Penalty box had conducted itself in a decent, orderly and respectable manner. Mr. Hogle stated that there was testimony that no visibly intoxicated persons were served that were involved in this incident. Mr. Hogle stated that as to Section 18-9-106, disorderly conduct, it does include “intentionally, knowingly or recklessly” language. Mr. Hogle stated that the regulation, itself, talks about knowingly permitting any disorderly conduct. Mr. Hogle stated that whether a single incident was considered reckless in and of its own occasion, the bar certainly did not knowingly permit this event to happen. Mr. Hogle stated that there was no prior knowledge of the propensities of either Mr. Vossel or Mr. Pugh. Mr. Hogle stated that this was not a situation where tensions were escalating or there was any arguing or whether there was any sort of indication that the situation was about to boil over. Mr. Hogle stated that this incident came completely out of the blue. Mr. Hogle stated that this came down to the last part of Regulation 47-900, “nor shall a licensee permit rowdiness, undue noise or other disturbances.” Mr. Hogle stated that obviously The Penalty Box did not condone this type of behavior.
Mr. Miller stated that this was the type of case that tests the limit of Regulation 47-900, Conduct of Establishment. Mr. Miller stated that there was no question that there was activity that occurred that would be offensive to the senses of an average citizen or to the residents of the neighborhood. Mr. Miller stated that there was certainly rowdiness and an example of conduct that would be characterized as not decent or orderly but there was a real question as to what the licensee or any licensee could do in a situation such as this. Mr. Miller stated that a single incident, occurring in a period of three years, without any notice or warning, no evidence of excessive use of alcohol, no evidence of something having occurred prior to this to provide notice or warning to the licensee, that it stretches Regulation 47-900 liability of the proprietor to the limit. Mr. Miller stated that there had to be some history of conduct that would put someone on notice that they had to do something and take additional measures. Mr. Miller stated that there was no history with this incident that would suggest that. Mr. Miller stated that it was a bazaar example of behavior by a person and that the incident could have taken place at a bus stop. Mr. Miller stated that there was no suggestion or evidence that it was even the presence of the establishment that created the situation. Mr. Miller stated there was no explanation for Mr. Vossel’s behavior and no way to anticipate it. Mr. Miller stated that even with security in every corner of the premises, the incident probably could not have been prevented. Mr. Miller stated that his conclusion was that the City had not carried the burden of proving there had been a violation of Regulation 47-900, Conduct of Establishment.
The case was dismissed.
Ms. Wamboldt stated that the Lakewood Finance Department had been trying to do an audit of the food and alcohol sales at The Penalty Box. Ms. Wamboldt stated that Jennifer Pingel from the Finance Department had left several phone messages at The Penalty Box and with Mr. Delants and her phone calls had not been returned. Ms. Wamboldt stated that Ms. Pingel had gone to The Penalty Box and the documents had not been made available. Ms. Wamboldt stated that Ms. Pingel was at The Penalty Box last Thursday and told the bartender that she needed to see the documents and asked that they be available the next day. Ms. Wamboldt stated that Ms. Pingel went back the next day and the documents were not available. Ms. Wamboldt stated that Ms. Pingel had tried to get in touch with Mr. Delants today and, so far, her attempts had been ignored. Ms. Wamboldt stated that the Finance Department was requesting the Liquor Licensing Authority to set a date whereby the records would have to be made available.
Mr. Miller stated that Regulation 47-700(B), Inspection of the Licensed Premises, states, “Each licensee shall retain all books and records necessary to show fully the business transactions of such licensee for period of the current tax year and the three prior tax years.” Mr. Miller stated that having the records requested and not being furnished is a significant problem. Mr. Miller stated that the licensee must contact Ms. Pingel either Friday, December 12, 2009 or Monday, December 15, 2009, at the latest, to make arrangements with her to see the records. Mr. Miller stated that the meeting must take place no later than Wednesday, December 17, 2009.
ITEM 6 – GENERAL BUSINESS
A. Mr. Kennebeck stated that there were two complaints being brought forward for motions to show cause.
1. Mr. Kennebeck stated the first complaint was against BMJ, Inc., d/b/a Eck’s Saloon, 9890 W. Girton Drive., for an alleged violation of Conduct of Establishment.
Mr. Miller found there was probable cause to believe that a violation of the Colorado and/or Lakewood codes had occurred and to serve a notice of hearing and order to show cause why the Hotel & Restaurant License held by BMJ, Inc., d/b/a Eck’s Saloon, 9890 W. Girton Drive., should not be suspended or revoked, such hearing to be held on February 12, 2009.
1. Mr. Kennebeck stated the second complaint was against LaBallerina, LLC, d/b/a LaBallerina, 5660 W. Colfax Ave., for an alleged violation of Conduct of Establishment.
Mr. Miller found there was probable cause to believe that a violation of the Colorado and/or Lakewood codes had occurred and to serve a notice of hearing and order to show cause why the Hotel & Restaurant License held by LaBallerina, LLC, d/b/a LaBallerina, 5660 W. Colfax Ave., should not be suspended or revoked, such hearing to be held on February 26, 2009.
B. Ms. Wamboldt stated that the licensee for Gaslamp Grill located at 9199 W. Alameda Ave. had been before the Liquor Licensing Authority on September 25, 2008 and at that time, the licensee was leaving the state and Gaslamp Grill was out of business. Ms. Wamboldt stated that the Liquor Licensing Authority had given the landlord 60 days to do a transfer of ownership of the liquor licenses. Ms. Wamboldt stated that if the City had not received a transfer application within the 60 days, then the liquor licenses were to be surrendered to the City. Ms. Wamboldt stated that the landlord, Mile High Church, had called and requested more time to allow them to find someone to lease the property and do a transfer of ownership of the liquor licenses. Ms. Wamboldt stated that because of the economy, Mile High Church was having trouble leasing the restaurant and they would like to keep the liquor license active for a while longer.
Mr. Kennebeck stated that the City had no objection to extending the deadline for Mile High Church.
Mr. Miller stated that he would extend the deadline for another 30 days.
ITEM 7 – ADJOURNMENT
There being no further business to come before the Authority, Richard Miller adjourned the meeting at 4:24 p.m.
Richard Miller, Hearing Officer, Lakewood Liquor and Fermented Malt Beverage Licensing Authority
Joyce Wamboldt, Liquor Licensing Specialist
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