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MINUTES
REGULAR MEETING OF
LAKEWOOD LIQUOR AND FERMENTED MALT BEVERAGE
LICENSING AUTHORITY
June 25, 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 2:15 p.m.
ITEM 2 – SHOW CAUSE HEARING
Hotel & Restaurant License
The Penalty Box, Inc.
d/b/a The Penalty Box Bar and Grill
1862 S. Wadsworth Blvd.
Paul Kennebeck, Lakewood Deputy City Attorney, stated he was representing the City of Lakewood.
Andrew Hogle, Registration No. 39760, stated he was representing the licensee.
Mr. Miller stated that he had emailed his written findings to Mr. Hogle and to the City. Mr. Miller stated that he had determined that there were two violations of State of Colorado Regulation 47-900A, Conduct of Establishment. Mr. Miller stated that the violations occurred on February 1, 2009 and February 2, 2009. Mr. Miller stated that the evidence supported the conclusion that the licensee allowed a person described as “very intoxicated” to enter the premises and remain on the premises, which led to an altercation in which that person was more than mildly injured with facial fractures and a concussion. Mr. Miller stated that the fact of allowing the person to enter and remain on the premises, knowing that the individual was “very intoxicated”, as was described by the licensee’s own witnesses, and that the intoxicated person had been served an alcoholic beverage violated Regulation 47-900A. Mr. Miller stated that he found that the fact that the licensee failed to call the police was very disturbing and troublesome.
Mr. Miller stated that because they did not call the police, no adequate investigation could be done concerning the facts of the assault. Mr. Miller stated there was no ability to evaluate Mr. Montoya and determine if, in fact, he was seriously injured and in need of medical attention. Mr. Miller stated that he did not subscribe to the explanation that this was done out of generosity or concern for the injured person, who asked that the police not be called. Mr. Miller stated that Mr. Montoya stated that he did not request that the police not be called but even if he had, Mr. Miller stated that there was a public interest here that needed to be served that would outweigh his request.
Mr. Kennebeck stated that there was a prior violation for a Sale to a Minor that occurred on May 16, 2007 and the hearing date was July 26, 2007. Mr. Kennebeck stated that that was a first violation and the licensee received a penalty of a ten-day suspension with five days held in abeyance for one year, which has passed. Mr. Kennebeck stated that the licensee had paid a fine for the five days in lieu of suspension. Mr. Kennebeck stated that under Lakewood’s sanctions, since this violation occurred within the prior two years, the normal sanctions would be a fourteen day suspension with seven days held in abeyance for one year and seven days to be served.
Mr. Hogle stated that The Penalty Box would still dispute some of the findings in terms of accuracy but, personally, he did not disagree with the Authority’s conclusions. Mr. Hogle stated that the decision not to contact the police was made in good faith by his client and was not an effort to skirt any circumstances or avoid the authorities. Mr. Hogle stated that his client was actually trying to take the victim’s wishes into consideration.
In answer to Mr. Miller’s question, Ms. Wamboldt stated that the liquor license for The Penalty Box was issued on October 26, 2005.
Mr. Miller found that the violation that was alleged in the complaint had occurred on February 2, 2009 and the following penalty be imposed upon The Penalty Box, Inc., d/b/a The Penalty Box Bar and Grill. A suspension of fourteen days be imposed and that ten of the days be held in abeyance for a period of one year, commencing on June 25, 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 25, 2009, regardless of when the hearing on such violation should be held, the ten 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. July 24, 2009 and end on July 28, 2009 at 7:00 a.m.
Mr. Kennebeck stated that the City still had the issue that was being held in abeyance regarding the 25% food requirement. Mr. Kennebeck stated that there were a couple more pieces of information that the Finance Department would like to establish regarding this issue and then make a decision. Mr. Kennebeck stated that the charge would be continued to July 23, 2009 if the licensee would state to the Authority that they would apply for a Tavern Liquor License within the next 30 days and then the City would dismiss the charge.
Mr. Miller stated that the matter concerning The Penalty Box, Inc. in the original complaint for the alleged violation of the food service requirement be continued to
July 23, 2009 at 2:00 p.m. for disposition.
ITEM 3 – NEW APPLICATION
Hotel & Restaurant License
Giovanni’s Italian Café, LLC
d/b/a Giovanni’s Italian Café
3355 S. Yarrow St., Unit E131
Mr. Kennebeck stated that his office had reviewed the file and that everything was in order.
Salvatore Giacalone, 8996 W. Swarthmore Dr., Littleton, CO 80123, was sworn in.
Carla Stevens, 8996 W. Swarthmore Dr., Littleton, CO 80123, was sworn in and stated that she and her husband were the applicants. Ms. Stevens stated they wanted to offer their customers beer or wine with their dinner and some after dinner coffees. Ms. Stevens stated that she did the petitioning and explained the process she used to do the petitioning.
In answer to Mr. Miller’s question, Ms. Lenora Moore, Lakewood Liquor Inspector, stated that on June 16, 2009, she did check the petitions that were turned in and determined that three of the signatures were outside the neighborhood boundaries. Ms. Moore stated that outside of the three signatures, the others appeared to be good, valid signatures. Ms. Moore stated the criteria that she used to check the petitions.
Ms. Stevens stated that they had between 12 to 15 employees and stated that their management team would be going to the Lakewood Alcohol Awareness Class. Ms. Stevens stated what their procedures for serving alcohol would be, once they received their liquor license.
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 Giovanni’s Italian Café, LLC, d/b/a Giovanni’s Italian Café, located at 3355 S. Yarrow St., Unit E131, contingent upon a positive recommendation by the Lakewood Police Department after the background investigation has been completed.
ITEM 4 – SHOW CAUSE HEARING
Tavern License
SFH Enterprises, LLC
d/b/a Cleopatra’s
6045 W. Alameda Ave.
Thomas Dunn, Registration No. 9395, stated he was the attorney representing the licensee.
Mr. Kennebeck stated that he had reached an agreement with Mr. Dunn and that the licensee would admit to the violation, Conduct of Establishment, that occurred on November 28, 2008 and that the City would dismiss the violation that occurred on December 3, 2008. Mr. Kennebeck stated that this was their second offense and that there was a prior violation that occurred on June 8, 2006 for a Sale to a Minor. Mr. Kennebeck stated that the penalty for that offense was a ten-day suspension with five days held in abeyance for one year and that the licensee paid a fine in lieu of suspension. Mr. Kennebeck stated that it was past the two year period but it was within a three year period. Mr. Kennebeck stated that he would recommend a twelve-day suspension with seven days held in abeyance for one year. Mr. Kennebeck stated that this was slightly more lenient than the guidelines, but in talking to Ms. Jennifer Roth, Lakewood Chief Municipal Prosecutor, she had indicated that the Lakewood Police Department agents that dealt with the liquor licensing had tried on the November 3, 2008 case to subpoena the victim in the assault and that victim was out of state. Mr. Kennebeck stated that in the November 28, 2008 incident, the police agent tried to serve subpoenas to two parties that were alleged to be involved in the incident and could not serve them. Mr. Kennebeck stated that, as a result, the City had a police agent, who arrived on scene and would favorably testify to what was set out in the complaint for the incident on November 28, 2008, but regarding some of the issues involving intoxication, there was no BAC taken and it would be the agent’s testimony only. Mr. Kennebeck stated that because of the nature of the case and the unavailability of the witnesses, the City offered the recommended sanction.
Mr. Dunn stated that the stipulation was a twelve-day suspension with seven days held in abeyance for a period of a year and that the licensee could pay a fine in lieu of suspension for the remaining five days. Mr. Dunn stated the circumstances surrounding the incident. Mr. Dunn stated that the license had existed in that location for approximately ten years and that the licensee had successfully passed several compliance checks. Mr. Dunn stated that Mr. Hussari had been drinking in his own establishment the night the disturbance took place and that he had exercised some bad judgment. Mr. Dunn stated that Mr. Hussari understood that putting himself in that position was putting his license at risk and that Mr. Hussari had taken the position that he would not be drinking in his establishment except on a special occasion when he was a part of a private party being held there. Mr. Dunn stated the steps Mr. Hussari was taking to prevent another incident at the bar. Mr. Dunn stated that Mr. Hussari and his staff would be attending the Lakewood Alcohol Awareness Class.
Mr. Miller stated that he would accept the stipulation between Mr. Kennebeck and Mr. Dunn. Mr. Miller dismissed the violation that allegedly occurred in paragraph three of the complaint that occurred on December 3, 2008. Mr. Miller found that the violation that was alleged in the complaint had occurred on November 28, 2008 and the following penalty be imposed upon SFH Enterprises, LLC, d/b/a Cleopatra’s. A suspension of twelve days be imposed and that seven of the days be held in abeyance for a period of one year, commencing on June 25, 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 25, 2009, regardless of when the hearing on such violation should be held, the seven 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 26, 2009 and end on July 1, 2009 at 7:00 a.m. Mr. Miller found that SFH Enterprises, LLC, d/b/a Cleopatra’s, be permitted to pay a fine in lieu of five days actual suspension imposed.
ITEM 5 – GENERAL BUSINESS
There was no general business to be discussed.
ITEM 6 – ADJOURNMENT
There being no further business to come before the Authority, Richard Miller adjourned the meeting at 3:02 p.m.
Richard Miller, Hearing Officer, Lakewood Liquor and Fermented Malt Beverage Licensing Authority
Joyce Wamboldt, Liquor Licensing Specialist
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