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MINUTES
REGULAR MEETING OF
LAKEWOOD LIQUOR AND FERMENTED MALT BEVERAGE
LICENSING AUTHORITY
June 11, 2009
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 2:00 p.m.
ITEM 2 – SHOW CAUSE HEARING
Beer & Wine License
Steve B. Gordon & Assoc., Inc.
d/b/a Frontroom Pizza
13795 W. Jewell Ave.
Mr. Miller stated that there was a time when he had provided legal services for Mr. Gordon and his entity. Mr. Miller stated that it was a number of years ago and that when the complaint was brought before the Liquor Authority, he had indicated that if the matter went to hearing, he would recuse himself. Mr. Miller stated that he understood that there was a stipulation and that he did not see any reason to bring someone else in as the hearing officer, unless Ms. Roth or Mr. Gordon had an objection.
Ms. Roth, Lakewood Chief Municipal Prosecutor and Mr. Gordon, owner of Frontroom Pizza stated that they had no objections.
Steve Gordon, 3321 Greenwood Road, Sedalia, CO 80135, was sworn in.
Ms. Roth stated that she had reached an agreement with the licensee, Mr. Gordon, and that the licensee would admit to the violation, Sale to a Minor. Ms. Roth stated that this was their first offense and that she would recommend a ten-day suspension with five days held in abeyance for one year. Ms. Roth stated that the licensee was asking to pay a fine in lieu of suspension.
Mr. Gordon stated that this was their first violation in 23 years and stated the circumstances surrounding the violation. Mr. Gordon stated his policies regarding the sale of alcohol, which he had had in place for 23 years.
Mr. Miller stated that he would accept the stipulation between Ms. Roth and the licensee. Mr. Miller found that the violation that was alleged in the complaint had occurred on April 8, 2009 and the following penalty be imposed upon Steve B. Gordon & Assoc., Inc., d/b/a Frontroom Pizza. A suspension of ten days be imposed and that five of the days be held in abeyance for a period of one year, commencing on April 9, 2009, and if there were no further violations of the Colorado and Lakewood codes during the next year, the period held in abeyance would be dismissed. In the event a violation did occur within one year from April 9, 2009, regardless of when the hearing on such violation should be held, the five days held in abeyance be imposed after such hearing in addition to any other penalty. The balance of the suspension would begin at 7:00 a.m. June 12, 2009 and end on June 17, 2009 at 7:00 a.m. Mr. Miller found that Steve B. Gordon & Assoc., Inc., d/b/a Frontroom Pizza, be permitted to pay a fine in lieu of five days actual suspension imposed.
Mr. Miller moved the items on the Agenda.
ITEM 3 – SHOW CAUSE HEARING
Hotel & Restaurant License
Legacy Hotel Group, LLC
d/b/a Holiday Inn Lakewood
7390 W. Hampden Ave.
Ms. Roth stated that she had reached an agreement with the licensee and that the licensee would admit to the violation, Sale to a Minor. Ms. Roth stated that this was their first offense and that she would recommend a ten-day suspension with five days held in abeyance for one year. Ms. Roth stated that the licensee was asking to pay a fine in lieu of suspension.
Aaron Dexter, 4580 E. 112th Place, Thornton, CO 80233, was sworn in and stated that he was the manager of Holiday Inn Lakewood and this was their first violation in 24 years. Mr. Dexter stated the circumstances regarding the sale to the minor. Mr. Dexter stated the steps they had taken to train their employees since the violation occurred and the measures they had taken to prevent another violation. Mr. Dexter stated that they have a no tolerance policy and that the employee who served the minor was terminated.
Mr. Miller stated that he would accept the stipulation between Ms. Roth and the licensee. Mr. Miller found that the violation that was alleged in the complaint had occurred on April 8, 2009 and the following penalty be imposed upon Legacy Hotel Group, LLC, d/b/a Holiday Inn Lakewood. A suspension of ten days be imposed and that five of the days be held in abeyance for a period of one year, commencing on April 9, 2009, and if there were no further violations of the Colorado and Lakewood codes during the next year, the period held in abeyance would be dismissed. In the event a violation did occur within one year from April 9, 2009, regardless of when the hearing on such violation should be held, the five days held in abeyance be imposed after such hearing in addition to any other penalty. The balance of the suspension would begin at 7:00 a.m. June 12, 2009 and end on June 17, 2009 at 7:00 a.m. Mr. Miller found that Legacy Hotel Group, LLC, d/b/a Holiday Inn Lakewood, be permitted to pay a fine in lieu of five days actual suspension imposed.
ITEM 4 – SHOW CAUSE HEARING
Hotel & Restaurant License
The Penalty Box, Inc.
d/b/a The Penalty Box Bar and Grill
1862 S. Wadsworth Blvd.
Ms. Roth stated that the City was prepared to go to hearing.
Andrew Hogle, Registration No. 39760, stated he was representing the licensee.
Ms. Roth stated that regarding the food sales issue, she had met with Mr. Hogle and his client, as well as a representative from the Lakewood Finance Department and Lenora Moore, the Lakewood Liquor Inspector, and they went over exactly what documentation needed to be provided. Ms. Roth stated that the licensee had brought that documentation to the City today. Ms. Roth stated that the City would not be going to hearing over that issue at this time, but that the City would be going to hearing on the alleged Conduct of Establishment violation.
Mr. Miller stated that in the future, if this issue was brought forward again, it was his judgment that the burden of proof for the 25% food requirement would be the licensee’s since the licensee had full control of the records and the City would have no way to prove that the condition was not being met if there were no records available.
Ms. Roth stated that the Lakewood Liquor Licensing Authority would hear evidence that on February 2, 2009, the Lakewood Police Department had responded to St. Anthony’s Hospital to speak to the victim of an assault that had occurred earlier at The Penalty Box Bar and Grill. Ms. Roth stated that the Authority would hear from the victim of the assault and that he would testify that the assault occurred inside The Penalty Box. Ms. Roth stated that it was the City’s position that this conduct was in violation of State of Colorado Regulation 47-900A.
Mr. Hogle stated that the Authority would be hearing testimony from two witnesses who were disputing the facts stated in the police report and the level of exaggeration as to those facts and that the incident was overblown as described. Mr. Hogle stated that the incident, in and of itself, was not sufficient to merit a violation of the portion of the statute regarding “knowingly permitting rowdy behavior”.
Adam Montoya, 4724 S. Xenon Way, Morrison, CO 80465, was sworn in and in answer to Ms. Roth’s questions, stated that he was at The Penalty Box on February 2, 2009 and arrived there between 7:00 and 8:00 p.m. Mr. Montoya stated that people were meeting him there later but that he was by himself when the incident occurred. Mr. Montoya stated that he had been at a friend’s house watching the Super Bowl on that day and had gone to The Penalty Box immediately afterwards. Mr. Montoya stated that he had consumed alcohol before going to The Penalty Box and he also had consumed alcohol while he was at the bar. Mr. Montoya stated that he had only been at the bar for two minutes, there were some people sitting at the bar and there were some other people playing cards in the back, and he walked over to the juke box where a woman was using it. Mr. Montoya stated that the woman started to walk away and he asked her if she was done using the juke box. Mr. Montoya stated that the woman’s boyfriend came up to him and asked him why he was talking to his girlfriend. Mr. Montoya stated that the boyfriend had assumed that he was flirting with the woman. Mr. Montoya stated that the situation escalated and the man got in his face and started yelling at him. Mr. Montoya stated that the man’s friends got on each side of him and it appeared that they were intoxicated and looking for trouble. Mr. Montoya stated that he was assaulted that night but that he did not remember exactly what happened because he suffered a concussion that night and that his memory was kind of hazy. Mr. Montoya stated that he remembered getting punched and that the two guys on either side of him grabbed him and someone grabbed him from behind and they started hitting him and he went to the ground. Mr. Montoya stated that once he was on the ground, they continued to hit him until some people from the bar came and broke it up and threw the guys out that had assaulted him.
Mr. Montoya stated that after the incident, he stayed there for a little bit longer. Mr. Montoya stated that he thought he was fine but later that evening, his nose kept bleeding and his sister and brother took him to the hospital. Mr. Montoya stated that he learned that he had a concussion and that his brain had started to swell and that was why his nose kept bleeding. Mr. Montoya stated that he heard from other people, who were at the bar at the time of the incident, that he had been hit with a bottle in the face and that he got hit with a que ball. Mr. Montoya stated that after that, it was really hazy and he did not remember the specifics.
Mr. Montoya stated that he talked to the police later that evening after he went to the hospital and the police were called. Mr. Montoya stated that he did not talk to the police while he was at The Penalty Box. Mr. Montoya stated that he did remember talking to Agt. Martinez that night at Swedish Hospital and he spoke to him after he had a CAT scan and x-rays, which was about two or three o’clock in the morning. Mr. Montoya stated that he remembered ordering a drink but he did not remember what it was.
Mr. Montoya stated that he did remember telling Agt. Martinez that a Hispanic male had punched him in the face about ten to fifteen times and that he did remember that occurring. Mr. Montoya stated that he did remember telling Agt. Martinez that he fell to the ground and covered up but the men continued to hit and kick him. Mr. Montoya stated that he did remember telling Agt. Martinez that he got back up and a beer bottle flew at him and hit him on the cheek. Mr. Montoya stated that he did vaguely remember that happening and that it was right near the end of the assault when the men were running out of the bar. Mr. Montoya stated that one of the men grabbed a bottle and threw it at him and he remembered it coming right at him. Mr. Montoya stated that he did remember telling Agt. Martinez that after the incident with the bottle, he believed he blacked out but that he did remember another hard object hitting him in the face. Mr. Montoya stated that he did not know what had hit him but that other people said it was a billiard ball. Mr. Montoya stated that the incident happened really fast.
Mr. Montoya stated that a lot of people did not see the incident happen because they were playing cards. Mr. Montoya stated that the only people sitting at the bar that night were the people who assaulted him. Mr. Montoya stated that he did not remember who told him that the billiard ball had been thrown at him. Mr. Montoya stated that after the incident occurred, he did not call the police and that, to his knowledge, no one else called the police.
Mr. Montoya stated that the police did not come to the bar while he was there and that he was at the bar an hour or two after the incident occurred. Mr. Montoya stated that he had approximately 20 hairline fractures in his cheek, a concussion and bruises, cuts and scrapes. Mr. Montoya stated that the doctor did indicate that the injuries were serious and that he definitely had to take it easy and could not get any more concussions for awhile. Mr. Montoya stated that he had to go see a Specialist regarding his face but after the doctor looked at his injuries, he said it was fine. Mr. Montoya stated that the doctor said it was like an egg being cracked but as long as nothing else happened, his face would heal fine and it did.
Ms. Roth gave Mr. Montoya a report that was marked as Exhibit #1.
In answer to Ms. Roth’s questions, Mr. Montoya stated that the form was a Physician’s Statement for Serious Bodily Injury. Mr. Montoya stated that the form indicated that he was the patient and that it stated the date of treatment as February 2, 2009. Mr. Montoya stated that the form listed the injuries he had on February 2, 2009, which were fractured interior and posterolateral, right maxillary sinus and fractured nasal bones but not displaced. Mr. Montoya stated that it was signed by the physician and that the form did indicate that he had serious bodily injury.
Ms. Roth asked that Exhibit #1 be admitted into the record.
Mr. Hogle stated that he had no objections to Exhibit #1 being admitted into the record.
Mr. Miller admitted Exhibit #1 into the record.
In answer to Ms. Roth’s questions, Mr. Montoya stated that he did not know the individuals who attacked him that night and had never seen them before. Mr. Montoya stated that after the attack ended, he never saw them again. Mr. Montoya stated that in his opinion, the men appeared to be intoxicated when they attacked him. Mr. Montoya stated that they had been drinking in the bar and that people did not start a fight like that when they were sober. Mr. Montoya stated that when he arrived at the bar, he said hello to the men who were seated at the bar and that he sat about ten to fifteen feet from where they were sitting. Mr. Montoya stated that they were drinking alcohol at the time he sat down at the bar.
In answer to Mr. Hogle’s questions, Mr. Montoya stated that he did not remember what time he arrived at The Penalty Box on February 2, 2009. Mr. Montoya stated that he thought he had arrived between 7:00 p.m. and 8:00 p.m. that night but he was not certain of the time. Mr. Montoya stated that he had never met the men who attacked him before that night. Mr. Montoya stated that the men approached him when he went to the juke box to put on some songs. Mr. Montoya stated that the boyfriend came up to him and started “going off” on him. Mr. Montoya stated that he did not remember yelling or cursing at the man but that he probably did say some things to him. Mr. Montoya stated that he did not remember shoving the man prior to getting hit. Mr. Montoya stated that he had been drinking at a friend’s house prior to going to The Penalty Box. Mr. Montoya stated that he had been drinking beer at his friend’s house and had probably consumed about a six-pack of beer. Mr. Montoya stated that he remembered getting hit with the bottle but not the que ball. Mr. Montoya stated that after he got hit, he went to the ground right away and was getting hit while he was on the ground. Mr. Montoya stated that after the incident occurred, he did remember receiving an ice pack. Mr. Montoya stated that the employees of the bar did a pretty good job of breaking up the incident right away and they threw the men out. Mr. Montoya stated that the men were violent to the employees of the bar from what he heard and from what he remembered seeing.
Mr. Montoya stated that after the incident, the employees were asking him if he was ok and they gave him an ice pack and were concerned about his well-being. Mr. Montoya stated that he did not remember whether the staff asked him if he wanted them to call the police nor did he remember telling them not to call the police. Mr. Montoya stated that he waited to seek medical attention because he thought he was fine but later realized that he was actually hurt pretty bad. Mr. Montoya stated that after he had a bloody nose for about an hour, he decided to go to the hospital. Mr. Montoya stated that after he left The Penalty Box, he went home and did not go to another bar. Mr. Montoya stated that after drinking at a friend’s house, he went to The Penalty Box and ordered a beer. Mr. Montoya stated that he was served alcohol and not water. Mr. Montoya stated that after the incident, he was served alcohol at The Penalty Box. Mr. Montoya stated that he was “buzzed” when he went in there but he got more drunk after the incident.
In answer to Ms. Roth’s questions, Mr. Montoya stated that he was “buzzed” when he went to The Penalty Box and that he had only ordered the one beer before the assault, and after the assault, he was served more alcohol. Mr. Montoya stated that the bartender probably thought he was hurting pretty bad and she gave him another beer or two after the assault.
Chad Martinez, Lakewood Police Agent, was sworn in and in answer to Ms. Roth’s questions, stated that on February 2, 2009, he responded to Swedish Hospital at approximately 2:30 a.m. Agt. Martinez stated that he had received a report of a cold assault, which was an assault that had occurred earlier and was not ongoing. Agt. Martinez stated that when he arrived at Swedish Hospital, he spoke with the victim, Adam Montoya. Agt. Martinez stated that Mr. Montoya told him that he had arrived at The Penalty Box Bar and Grill at about 23:50 hours that evening and that he had sat down at the bar, ordered a beer, went to the juke box to play some music and there was a female already standing at the juke box. Agt. Martinez stated that Mr. Montoya said that he asked if he could play a song and that he was approached by two Hispanic males that thought he had been “hitting on” the woman and that the Hispanic males asked him, “Why are you hitting on my girl or why are you talking to my girl?” Agt. Martinez stated that Mr. Montoya said that the next thing he knew, one of the Hispanic males grabbed him in a bear hug fashion from behind and the first Hispanic male, who had asked him if he was talking to his girlfriend, started hitting him in the face.
Agt. Martinez stated that Mr. Montoya said that he was punched probably about ten to fifteen times and that he fell to the ground and began to cover up and that they continued to hit and kick him while he was on the ground. Agt. Martinez stated that Mr. Montoya said that after that, he remembered being hit with a beer bottle. Agt. Martinez stated that Mr. Montoya said that the fight broke up because the two suspects fled out of the Penalty Box but that he remembered being hit by another hard object. Agt. Martinez stated that Mr. Montoya said that he was told later on by the bartender that he was hit with a billiard ball. Agt. Martinez stated that Mr. Montoya said that he did not call the police after the incident and that Mr. Montoya had said that the bartender had told him that the police had been called. Agt. Martinez stated that he checked with Dispatch and no report had been received from The Penalty Box.
Ms. Roth gave Agt. Martinez a document marked as Exhibit #2.
In answer to Ms. Roth’s questions, Agt. Martinez stated that Exhibit #2 was a Call Log Event Summary from Lakewood Dispatch. Agt. Martinez stated that the Event Summary started on February 1, 2009 at 23:00 hours and ended on February 2, 2009 at 02:31 hours. Agt. Martinez stated that the Summary Report was a listing of every call that had come in to Dispatch during those hours. Agt. Martinez stated that he had reviewed this report and there were no calls from The Penalty Box during those times.
Ms. Roth asked that Exhibit #2 be admitted into the record.
Mr. Hogle stated that he had no objections to Exhibit #2 being admitted into the record.
Mr. Miller admitted Exhibit #2 into the record.
In answer to Ms. Roth’s questions, Agt. Martinez stated that after he spoke to
Mr. Montoya, he had one of the crime scene investigators go to Swedish Hospital to take photographs of Mr. Montoya’s face. Agt. Martinez stated that he spoke with the doctor and asked him if there were any injuries that constituted serious bodily injury and the doctor told him that there were, that there had been several minor fractures in his face. Agt. Martinez stated that the doctor agreed to sign the Serious Bodily Injury form, which he submitted with the report. Agt. Martinez stated that he observed a softball size swelling on Mr. Montoya’s cheek area and that his skin was discolored and bruised. Agt. Martinez stated that his report indicated that on the right side of Mr. Montoya’s face, there was a softball size swollen area and his right eye was almost completely swollen shut and there were some minor scrapes and cuts around his neck area.
Agt. Martinez stated that he went back to The Penalty Box to see if he could locate any other witnesses but the bar was closed.
In answer to Mr. Hogle’s questions, Agt. Martinez stated that he did not go back to
The Penalty Box the next day or any other day to contact anyone to verify
Mr. Montoya’s statement. Agt. Martinez stated that whether he goes back to the scene of an incident depends on whether time allows him to go back and usually once a report has been completed, it goes on to the Investigations Department, but if there was time during the night, he usually tried to go back out to the scene of the incident.
Agt. Martinez stated that he was assuming that he was busy and could not find the time to go back. Agt. Martinez stated that he did not give Mr. Montoya a blood alcohol test and he did not know if the hospital had done a test. Agt. Martinez stated that he could not say if Mr. Montoya was intoxicated when he saw him. Agt. Martinez stated that he did not see any signs of a concussion when he saw Mr. Montoya. Agt. Martinez stated that he had seen other assault victims before and the injuries that he saw on
Mr. Montoya indicated that he was definitely hit with a hard object. Agt. Martinez stated that he had not seen too many injuries where a person had been just punched or kicked that had facial fractures. Agt. Martinez stated that Mr. Montoya’s injuries were consistent with being hit with a beer bottle or billiard ball. Agt. Martinez stated that his report was based solely on Mr. Montoya’s testimony.
Patrick Delants, 7574 Haleys Dr., Littleton, CO 80125, was sworn in and in answer to Mr. Hogle’s questions, stated that he was one of the owners of The Penalty Box and had owned it for about three and a half years. Mr. Delants stated that he did not get rowdy crowds regularly and that every now and then there was an incident. Mr. Delants stated that he operated his bar in a decent, orderly and respectable manner. Mr. Delants stated that he was at The Penalty Box on the night of February 2, 2009. Mr. Delants stated that it was Super Bowl Sunday and that the bar was not crowded that night. Mr. Delants stated that the only employees working that night were himself and the bartender. Mr. Delants stated that he recognized Mr. Montoya when he entered the bar and that he was a regular at the bar. Mr. Delants stated that Mr. Montoya was intoxicated when he entered the bar. Mr. Delants stated that he did not serve Mr. Montoya any alcohol while he was at the bar and his bartender said that she did not serve him, either. Mr. Delants stated that his bartender said that she gave him water because he said he was waiting for his friends to arrive. Mr. Delants stated that he had seen the other two Hispanic men that were involved in the incident maybe once before. Mr. Delants stated that the other two Hispanic men were not regulars. Mr. Delants stated that he did not recall the two men causing trouble before that night. Mr. Delants stated that he was not aware of any feud or dispute between the two men and Mr. Montoya before the incident occurred. Mr. Delants stated that he was not aware of any situation that was brewing between the men before the incident occurred. Mr. Delants stated that he witnessed the incident and he saw the woman who was at the juke box playing music and he watched Mr. Montoya go over to her and did not think anything of it. Mr. Delants stated that he was playing cards and then he heard some loud “f*** yous” and when he looked up, he saw Mr. Montoya push the one gentleman and the other gentleman grabbed Mr. Montoya. Mr. Delants stated that Mr. Montoya was hit roughly four to five times in the face and that he could not defend himself because the one gentleman had his arms. Mr. Delants stated that as soon as he saw Mr. Montoya push the one gentleman, he jumped up and started running over there. Mr. Delants stated that the incident was approximately fifteen feet away from where he was sitting. Mr. Delants stated that he did not, at any time, see Mr. Montoya fall to the ground and cover himself up. Mr. Delants stated that he did not, at any time, see Mr. Montoya get kicked. Mr. Delants stated that he and his cousin and the poker dealer and the poker dealer’s wife and two other people playing poker separated the individuals. Mr. Delants stated that he took the individual that was doing the punching and a friend of his took the individual that was holding Mr. Montoya and escorted them out of the bar, while his cousin, Jimmy, held Mr. Montoya and stood in front of him while the other two men were being escorted out of the bar. Mr. Delants stated that one of the gentlemen tried to throw a bottle and it went up in the air and the beer came down and splashed all over his cousin, Jimmy, and the poker dealer. Mr. Delants stated that the beer bottle never came anywhere near Mr. Montoya. Mr. Delants stated that he saw a billiard ball thrown by one of the gentlemen but it did not hit Mr. Montoya. Mr. Delants stated that the billiard ball hit the wall and put a hole in it. Mr. Delants stated he does not have security officers at the bar and has not felt the need to hire security officers. Mr. Delants stated that it was usually a pretty quiet crowd and that the people who played poker did not like to fight. Mr. Delants stated that he runs poker tournaments four nights a week. Mr. Delants stated that having security guards at the bar the night of the incident would not have prevented the incident from occurring. Mr. Delants stated that besides being closer to the incident when it started, there was nothing he could have done to have prevented the assault. Mr. Delants stated that it was his policy to call the police when there was an incident but he did not call the police that night because Mr. Montoya asked him not to.
In answer to Ms. Roth’s questions, Mr. Delants stated that he was present at the bar when the incident occurred. Mr. Delants stated that when Mr. Montoya arrived at the bar, he was very intoxicated. Mr. Delants stated that Mr. Montoya arrived between
7:00 p.m. and 8:00 p.m. Mr. Delants stated that he knew Mr. Montoya was intoxicated because he was having trouble speaking and walking. Mr. Delants stated that he had seen Mr. Montoya before that night. Mr. Delants stated that the incident started about 45 minutes after Mr. Montoya arrived at the bar. Mr. Delants stated that after the incident, he kicked the two Hispanic males out the door but that Mr. Montoya stayed at the establishment. Mr. Delants stated that Mr. Montoya stayed in the bar a couple of hours after the incident occurred. Mr. Delants stated that they would not let
Mr. Montoya leave because he was intoxicated and he had driven to the bar.
Mr. Delants stated that they served Mr. Montoya water when he arrived and he would not let Mr. Montoya leave because he was so intoxicated and had friends who were coming to pick him up. Mr. Delants stated that Mr. Montoya did not leave until his friends picked him up. Mr. Delants stated that he did allow an intoxicated person to stay on the premises for approximately three hours because he thought that was a better idea than letting him drive. Mr. Delants stated that there were some loud “f*** yous”, then Mr. Montoya pushed one of the men who ended up hitting him. Mr. Delants stated that he did not know if Mr. Montoya’s intoxication caused him to push the individual.
Mr. Delants stated that there were six people that tried to help but he took one gentleman, a friend of his took another gentleman, and his cousin had Mr. Montoya. Mr. Delants stated that there were probably about ten people in the bar that night.
Mr. Delants stated that he did not observe, at any point, a hard object striking
Mr. Montoya and that that he saw just the gentleman’s fists strike Mr. Montoya.
Mr. Delants stated that Mr. Montoya could not defend himself because the gentleman behind Mr. Montoya had his arms so Mr. Montoya’s face was exposed. Mr. Delants stated that he could not tell how hard Mr. Montoya was being hit. Mr. Delants stated that he did not call the police because Mr. Montoya asked him not to. Mr. Delants stated that Mr. Montoya had a raspberry on his cheek after the incident and they gave him a bag of ice to put on it. Mr. Delants stated that he thought it was necessary to call the police but since Mr. Montoya asked him not to call them, he assumed Mr. Montoya was in trouble.
Jim Osborne, 11222 W. Utah Place, Lakewood, CO 80232, was sworn in and in answer to Mr. Hogle’s questions, stated that he was at The Penalty Box on February 2, 2009. Mr. Osborne stated that he arrived at the bar after the Super Bowl, approximately 7:15 p.m. to 7:30 p.m. Mr. Osborne stated that he noticed Mr. Montoya prior to the incident and that he knew Mr. Montoya. Mr. Osborne stated that he played cards three times a week at The Penalty Box. Mr. Osborne stated that when he saw Mr. Montoya, he did not have any reason to suspect that Mr. Montoya might become violent or get involved in an incident. Mr. Osborne stated that when the altercation occurred, he was sitting behind the table, watching a poker game. Mr. Osborne stated that he noticed Mr. Montoya at the juke box and there was a tall Hispanic female next to him. Mr. Osborne stated that he turned away and then he heard some “f bombs” being dropped and he turned around and saw Mr. Montoya and a Hispanic gentleman in front of Mr. Montoya. Mr. Osborne stated that they were squared off in each other’s faces and he saw Mr. Montoya step into the other gentleman and give him a shove. Mr. Osborne stated that the gentleman started to do a right-left combination and that Mr. Montoya was swinging back. Mr. Osborne stated that when he saw what was happening, he got up and headed over to the altercation. Mr. Osborne stated that the larger Hispanic male had Mr. Montoya in a bear hug. Mr. Osborne stated that he got the Hispanic male in a reverse rear neck choke and pulled him off of Mr. Montoya. Mr. Osborne stated that he saw between five and seven punches landing on Mr. Montoya’s face. Mr. Osborne stated that he never saw Mr. Montoya hit the ground or get kicked. Mr. Osborne stated that when the two Hispanic males were being escorted out of the bar, his back was turned and he had Mr. Montoya in front of him. Mr. Osborne stated that Mr. Montoya wanted to go after the two gentlemen and he was holding him back. Mr. Osborne stated that he did not see the beer bottle being thrown but he felt something wet on his back and he turned around and saw the one larger gentleman. Mr. Osborne stated that he never saw a billiard ball get thrown. Mr. Osborne stated that he thought the whole altercation lasted about 10 to 15 seconds. Mr. Osborne stated that it took about two minutes to separate the men and escort the gentleman from the bar. Mr. Osborne stated that he had fifteen years experience working as a security guard, working at After the Gold Rush, Pitchers, and Bakers Street Pub and Grill. Mr. Osborne stated that he had seen other fights and, in his opinion, there was not anything The Penalty Box could have done to prevent this incident from starting. Mr. Osborne stated there was nothing more they could have done to quash the incident and that it was diffused pretty fast. Mr. Osborne stated that he had seen injuries from other fights and that to say that a fist could not fracture a facial bone was incorrect. Mr. Osborne stated that as far as the orbital bone, cheek bone or jaw, he had seen fractures with one punch from males who weighed 145 lbs. Mr. Osborne stated that he would guess that Mr. Montoya and the other party were around 160 to 170 lbs. Mr. Osborne stated that a punch could definitely have caused the fractures.
In answer to Ms. Roth’s questions, Mr. Osborne stated that Mr. Delants was his cousin and that he had been going to the bar since Mr. Delants had purchased it. Mr. Osborne stated that on February 2, 2009, he had been at The Penalty Bar no more than 15 to 20 minutes before the incident occurred. Mr. Osborne stated that he did not watch the game at The Penalty Box. Mr. Osborne stated that he had not been drinking that day because on that weekend his kids were with him. Mr. Osborne stated that he had not had anything to drink at The Penalty Box before the incident occurred. Mr. Osborne stated that in his experience at all of the different establishments where he had worked, he saw that drunken patrons definitely did seem to be more prone to get into fights. Mr. Osborne stated that he did not talk to Mr. Montoya when he first saw him but after the altercation, when he was holding Mr. Montoya, he could tell that Mr. Montoya was intoxicated.
Ms. Roth stated that the Authority had heard testimony from Mr. Montoya that on February 2, 2009, he was at The Penalty Box and that when he arrived; he had been drinking prior to going to the bar. Ms. Roth stated that Mr. Montoya had testified that when he arrived, he ordered and was served a beer. Ms. Roth stated that Mr. Montoya testified that he was involved in an altercation with a couple of other patrons in the establishment where Mr. Montoya was punched approximately ten to fifteen times in the face, was kicked, hit with a beer bottle and possibly hit with a billiard ball. Ms. Roth stated that the injuries that Mr. Montoya received that evening were determined by a doctor to be serious bodily injury. Ms. Roth stated that no one from the establishment felt it necessary to call the police that evening. Ms. Roth stated that the police were called after Mr. Montoya went to Swedish Hospital for treatment. Ms. Roth stated that when the police were called and tried to investigate the incident, they could not interview any witnesses from the establishment because it was already closed. Ms. Roth stated that Mr. Montoya testified that he was “buzzed” when he went into the bar and that he ordered the beer, the assault occurred and then after the assault, he drank one or two more beers. Ms. Roth stated that there was testimony from the licensee that, in his opinion, Mr. Montoya was visibly intoxicated and stated that Mr. Montoya was very intoxicated when he came into the establishment, yet allowed Mr. Montoya to stay on the premises for approximately three hours, which that in and of itself was a violation of Regulation 47-900A, allowing a visibly intoxicated person to loiter on premises. Ms. Roth stated that there was testimony from Mr. Osborne that an intoxicated person was more prone to get into a fight and that may have contributed to this incident. Ms. Roth stated that the licensee allowed a visibly intoxicated patron to stay there, there was a fight that occurred that resulted in serious bodily injury and that no one in the bar felt it important to call the police that night. Ms. Roth stated that the City was asking the Authority to hold the licensee responsible and that this was a violation of Regulation 47-900A.
Mr. Hogle stated that there was conflicting testimony between Mr. Montoya and two other witnesses, who were sober that evening and disputed a number of alleged facts in Mr. Montoya’s statement to the police. Mr. Hogle stated there was a question as to the time that Mr. Montoya arrived and there was a question as to exactly what physically happened to him and the extent of the assault. Mr. Hogle stated there was conflicting testimony that suggested that at best, Mr. Montoya’s memory was questionable, whether due to alcohol or due to a concussion. Mr. Hogle stated that regardless, he was talking about a degree of responsibility for the establishment in terms of how they are expected to behave when dealing with a violent incident. Mr. Hogle stated that the actual language of the regulation talks about knowingly permitting any acts of disorderly conduct. Mr. Hogle stated that, legally, there were different levels of intention, whether it was recklessly, knowingly, or intentionally allowing certain behavior and that “knowing” being a standard that was fairly high. Mr. Hogle stated that if this was a case where the bar staff was not present and allowed a fight to take place on the premises, that might be considered to be “recklessly permitting”. Mr. Hogle stated that, obviously, this was not “intentionally permitting” but even “knowingly permitting” would imply that the bar staff perhaps saw the incident beginning and took no action, hoping perhaps that it would work itself out. Mr. Hogle stated that that did not obviously happen and that there was testimony stating that multiple bar patrons and staff immediately responded at the first sign of an altercation. Mr. Hogle stated that they separated the patrons and removed the patrons, who were responsible for the assault, from the bar. Mr. Hogle stated that the staff then gave medical care to the party who had been injured. Mr. Hogle stated that there seemed to be an implication or a suggestion from counsel that the mere fact that an intoxicated person was present, was allowed through the door and allowed to remain at the bar, constitutes loitering and was a violation of the regulation. Mr. Hogle stated that this was a friend of the bar staff and a regular patron, who they knew and cared about, and rather than allow him to drive home or wander off to another bar, they served him water and then gave him medical attention, asking him if he felt it was necessary to call the police. Mr. Hogle stated that Mr. Montoya was waiting for a ride the entire time and that he would argue that loitering was a bit of a stretch. Mr. Hogle stated that in terms of the violation, everything that was discussed in the last 30 minutes was somewhat irrelevant if there was a degree of responsibility that never allowed bars to let in an intoxicated person or every incident that happened on their premises should have been prevented. Mr. Hogle stated that if that was the case, then we were talking about a zero tolerance policy and there was really nothing more to argue about. Mr. Hogle stated that Mr. Montoya was treated and cared for after an incident that he started. Mr. Hogle stated that talking about an isolated incident does not meet “knowingly permitting disorderly conduct or permitting rowdiness”. Mr. Hogle stated that this was not a pattern of behavior but an isolated incident with this establishment. Mr. Hogle stated that he was asking the Authority to dismiss the charge.
Mr. Miller stated that he was continuing the matter to June 25, 2009 at 2:00 p.m. for the purposes of a entering a decision. Mr. Miller stated that the hearing was now closed and no further testimony or exhibits would be received.
ITEM 5 – SHOW CAUSE HEARING
Tavern License
Guido’s Nickel, Inc.
d/b/a Guido’s Nickel Bar
9500 W. Colfax Ave.
Bernice Winchip, 913 Newcomb St., Lakewood, CO 80215, was sworn in and stated that she was one of the owners of Guido’s Nickel Bar. Ms. Winchip stated that the bartender made a mistake and stated the circumstances surrounding the violation. Ms. Winchip stated that she was admitting to the violation.
Mr. Miller called a recess at 3:16 p.m. so that Ms. Roth could speak with Ms. Winchip. He reconvened the session at 3:20 p.m.
Ms. Roth stated that she had reached an agreement with the licensee and that the licensee would admit to the violation, Sale to a Minor. Ms. Roth stated that there was a previous Sale to a Minor violation and the hearing was held on January 12, 2006. Ms. Roth stated the City was recommending a fourteen-day suspension with seven days held in abeyance for one year and that the licensee would serve the remaining seven days suspension.
Ms. Winchip stated that she had owned the premises since August of 2004. Ms. Winchip stated that there was also a compliance check in 2007 and in 2008 and they passed both compliance checks. Ms. Winchip stated the policies she had put into place to prevent another violation. Ms. Winchip stated that after the violation occurred, all of their employees went to the Lakewood Alcohol Awareness Class. Ms. Winchip stated that most of her employees had worked for her a long time and that they were all between the ages of 35 and 60. Ms. Winchip stated that most of her patrons were older and came into the bar regularly.
Mr. Miller found that the violation that was alleged in the complaint had occurred on April 8, 2009 and the following penalty be imposed upon Guido’s Nickel, Inc., d/b/a Guido’s Nickel Bar. A suspension of ten days be imposed and that five of the days be held in abeyance for a period of one year, commencing on June 11, 2009, and if there were no further violations of the Colorado and Lakewood codes during the next year, the period held in abeyance would be dismissed. In the event a violation did occur within one year from June 11, 2009, regardless of when the hearing on such violation should be held, the five days held in abeyance be imposed after such hearing in addition to any other penalty. The balance of the suspension would begin at 7:00 a.m. June 12, 2009 and end on June 17, 2009 at 7:00 a.m. Mr. Miller found that Guido’s Nickel, Inc., d/b/a Guido’s Nickel Bar, be permitted to pay a fine in lieu of five days actual suspension imposed.
ITEM 6 – GENERAL BUSINESS
ITEM 7 – ADJOURNMENT
There being no further business to come before the Authority, Richard Miller adjourned the meeting at 3:30 p.m.
Richard Miller, Hearing Officer, Lakewood Liquor and Fermented Malt Beverage Licensing Authority
Joyce Wamboldt, Liquor Licensing Specialist
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