No one is quite sure how it happened, how he got past security or went unnoticed for so long. But on Dec. 14, a man sat at a dimly-lit back table in The Sundown Saloon and put away drink after drink after drink, glasses piling up on the unbussed table, until he was discovered passed out, covered in his own piss and in need of medical attention.
It was a serious incident, and a major lapse in public safety, but it was by no means a standard weekend at one of Boulder’s most iconic bars. Bar staff claim, and the police who responded confirm, the Sundown staff didn’t serve the man directly, but the owners agree he should have been seen.
The subsequent liquor violation The Sundown received was the first in its 33-year history.
When Sundown owners Anthony Milazzo and Jon Tuschman were called on March 19 to defend their liquor license to Boulder’s Beverage Licensing Authority, the board that oversees liquor licenses in the city, they outlined changes the bar had made since the incident: They fired the three people working that section of the bar that evening, hired 30 percent more staff, outfitted them with radios to communicate cross-bar, upgraded the lighting, installed cameras and started having the doormen write down physical descriptions of patrons turned away at the door.
“No one is more embarrassed than we are,” said Tuschman. They also received testimony in their favor from Boulder Police Department Liquor Enforcement Officer Carlene Hoffman, who spoke to the bar’s reputation for confiscating fake IDs, its decades without a liquor violation and the time she personally witnessed them refuse service just a few months prior.
The Sundown’s hope was that it could pay a fine.
The board didn’t buy it. The Sundown was ordered to close for six days as punishment, with an additional 12 days put in reserve (abeyance) to be used as an additional penalty if the bar is cited again.
During that same meeting, The Walrus, another downtown staple, was ordered closed for nine days after going 40 years without a violation, and Buffalo Spirits Liquor on North Broadway was rigorously interrogated, then ordered closed for several days. Its crime? Opening on Christmas due to employee error.
For months now, Boulder, a town internationally renowned for its craft beer and with a high college population, has been quietly suffering a bureaucratic war on alcohol, and local bar owners are increasingly aware of their status as cannon fodder.
Jim Sonn, owner of The Pearl Street Pub made that pretty clear when he had to appear before the BLA in January of this year. The Pearl Street Pub had 14 years without a violation — and has a doorman who teaches workshops on spotting fake IDs — before getting dinged for over-serving twice in 2013 and the board wanted to know what had changed.
“The enforcement,” he said.
The BLA didn’t like that answer. The Pearl Street Pub was ordered to close for eight days, with another 13 days put in abeyance to kick in on top of any other penalties if Pearl Street Pub gets another violation. And at least one BLA member, Lisa Spalding, wanted to see the bar closed outright.
But here’s the thing: Sonn was right.
The number of bars or restaurants called before the BLA to defend their liquor licenses averaged between one and three per month for the last two years. Then in the final quarter of 2013 it spiked, with seven bars defending their licenses in December, and nine doing so in January. For context, there were only 20 bars that defended to their licenses to the BLA in all of 2013.
The Boulder Police Department says the spike is related to when bars are scheduled to appear before the BLA, not to enforcement itself, and there is some truth to that. The number of bars defending their licenses dropped to two in February, and four in March, and there have been spikes before, with seven bars defending their licenses in April 2011, eight in January 2011 and 10 in December 2010. As reported in Boulder Weekly’s article, “Buzz kill” in February 2011, much of that spike was due to a $34,700 grant from the Colorado Liquor enforcement division. This time, there’s no grant money, just a new series of stings executed as a partnership between the BPD and state liquor enforcement officials targeting bars for overserving.
While BPD refused to comment on the stings, multiple bar owners BW spoke to for this article pegged their start to the last quarter of 2013, a timeframe that was backed up by BLA member Lisa Spalding in March’s meeting.
“These overserving stings just started last year,” she said.
But what Sonn and numerous other bar owners have told BW has changed of late is not just the number of busts, but the tone of liquor enforcement.
“We used to work with the police, even invite them in to look for fake IDs,” says Sonn. “Now there seems to be an antagonistic relationship instead of working together.”
Bar owners told BW stories of liquor enforcement officials issuing citations without getting the drunk person’s ID or contact, of undercover BPD officers camping out in bars for hours waiting to see someone that appeared intoxicated, of being told that certain kinds of music would guarantee the bar would receive liquor violations and more.
Sonn likened it to a cop following a driver for 50 miles searching for any excuse to pull them over, something that appears fine and dandy with the city.
“The stepped up stings are great,” BLA member Harriet Vincent Barker said at January’s BLA meeting. “And the word about them needs to spread fast and hard.”
It has. And the crackdown has made local bar owners scared. One even told BW they turned away a customer with cerebral palsy out of fear the police might interpret that person’s slurred speech and impaired movements as signs of intoxication.
It isn’t just college bars. High-end eatery Salt was forced to close down for two days and pay a large fine in December for the crime of having a sign about the dangers of alcohol partially obscured.
The most telling piece of evidence that things are different is the sheer number of bar owners BW spoke to for this story, almost all whom wouldn’t go on record for fear of retaliation.
“The people who are on this board are there for a reason, they have an agenda,” says Sonn.
The member of the board whose agenda seems the most defined is Lisa Spalding, whose rhetoric and demeanor fall somewhere between a moral crusade and an outright witch hunt.
At March’s meeting after the city made a motion to dismiss the charges against The Lazy Dog due to lack of evidence, Spalding threw a fit, demanding that the bar’s owner be drug before the board anyhow so he could defend his “moral character.”
“He wasn’t charged with anything,” said board member Tim McMurray.
“It doesn’t matter,” Spalding fired back.
Less than an hour earlier she’d referred to residents of Boulder’s homeless shelter as “those types of people,” and “habitual drunkards.”
Spalding frequently employs wild speculation and a questionable knowledge of the law to push for the harshest penalties available, which often means seeing a bar closed outright. Bar-owners also allege she has pushed to strip alcohol permitting from The Boulder Creek Festival and other community gatherings.
The general impression Spalding gives off is that of an almost cartoonishly firebreathing teetotaler, indifferent to what gets quashed in the name of curbing alcohol consumption.
Her argument for closing the Pearl Street Pub was that an eight-day closure was not a serious punishment. She said the same of the 20-day closure that was levied against Bohemian Biergarten at December’s meeting.
But here’s the numbers on those closures.
Both businesses do thousands of dollars in sales a day, sales that are crucial to making overhead, and their respective closures are estimated to have cost in the neighborhood of $20,000 apiece.
More than 20 people work at The Pearl Street Pub, closer to 40 at the Bohemian Biergarten, all of whom then had to either find other jobs or dip into savings.
“These are people who are not rich by any means. How are they going to pay their rent?” says Sonn.
Then there’s the lost city and state tax revenue generated by those sales, and the economic activity and taxes that come with its employees having disposable income.
And then there’s the fact that along with a closure, bars must display a sign explaining why they’re closed in the front window, like some sort of scarlet letter.
Though Zdenek Srom, owner of the Bohemian Biergarten wouldn’t talk to BW explicitly about the case because of the pending legal issues, he did tell BW that the bigger risk to him wasn’t the possibility of closure itself, but the long, multi-million dollar lease on the restaurant’s prime real estate space at 13th and Pearl, which he would still be responsible for paying even if the restaurant was forced to close from lack of revenue relating to the closure.
Penalties of that level mean that the crime of someone being served one beer too many could cost dozens of jobs, forcibly reshape local culture and force business owners who didn’t actually commit the crime themselves into bankruptcy. Bartenders can even face jail time.
Any reasonable analysis would say that these are serious penalties, and that causing a business to close by starving its revenue is still forcing it to close.
BW tried to clarify with Spalding if she truly didn’t believe these were serious penalties or was simply speaking off the cuff in the heat of the moment, but she refused to take BW’s questions via phone, hanging up on us several times and then later refused to respond to emailed questions.
And as Spalding’s hardline stance largely drives the board’s discussions, it’s all the other members can do to balance her out.
The largest counterweight is McMurray, the youngest member of the board and a managing partner at Mountain Sun Brewing.
If anyone on the board represents the interests of local bars and restaurants, it’s McMurray, who uses terms like “normative drunkenness” and says he thinks the penalties should be focused more toward educational ends than toward shutdowns.
“I don’t think it’s our practice or our job to force people out of business,” he told Spalding during one exchange.
“To me, an iron fist isn’t necessarily a deterrent,” he said in another.
It’s also a common sight during BLA meetings to see McMurray quietly shaking his head as Spalding monologues.
But what neither Spalding, McMurray nor any of the other board members caught in the middle of their game of tug-of-war has is accountability. Though the BLA are public officials with the power to shut down businesses that employ dozens of people and shape the culture of the city, its members are unelected. Terms are five years and members are appointed by the city council. Once in, they become a sort of kangaroo court, a second layer of prosecution that offers defendants few of the rights constitutionally guaranteed to the accused.
And though the BLA operates in a quasi-judicial manner, they are not judges and are not held to the same standards of conduct or burdens of proof. A bar or restaurant bringing a lawyer might receive a harsher penalty as the lawyer’s presence is interpreted as a sign of unrepentence. Instead of both sides presenting evidence to assess guilt, guilt is commonly presumed from the outset and the hearing is based almost entirely off police reports. And in perhaps the most problematic issue of all, those police reports are largely anecdotal.
“We’re not allowed by state law to bring a portable breath test into any establishment,” says BPD Liquor Enforcement Officer Carlene Hoffman. “We’re only allowed to use the machine when we handle DUIs.”
That means overconsumption tickets are issued to bars based on cops eyeballing actions like “talking loudly,” in a bar environment. Now that recreational pot is legal, they’re also on the lookout for people who might have bloodshot eyes at 1 a.m., something bartenders are also now being held accountable for. A bar that lets in a patron who consumed a slow-acting marijuana edible before its effects kick in can be held accountable when that patron orders a single beer, sits down and promptly passes out.
“At 12:30 a.m., 1 a.m. on a Saturday night, if they go looking for somebody with bloodshot eyes, somebody who’s speaking loudly, they’re going to find it,” says Sonn.
The big question to the crackdown is why. And no one is talking.
As mentioned before, BLA member Lisa Spalding refused repeated attempts to interview her. When BW attempted to get more information about practices and goals of liquor enforcement, BPD Public Information Officer Kim Kobel took several weeks to return our calls, allotting only several minutes to speak to us when she did. We asked about the increase in stings, which was discussed several times at January’s BLA meeting and confirmed again at March’s, and she said it didn’t exist. We asked why the numbers, the rhetoric of the board and the experiences of local bar owners seemed to point in the opposite direction and Kobel told BW we just needed to do more research.
We did. And discovered that, along with the existence of overconsumption stings, there are not one, not two, but three elephants in the room.
The first is city attorney Tom Carr.
As previously reported in BW, Carr came to Boulder in 2010 after being run out of Seattle for his undesired and constitutionally dubious crackdown on local bars.
“In 2007, Carr and the Seattle Police Department claimed that two dozen people either illegally served minors or let undercover officers who didn’t have valid ID into bars. But the campaign was widely considered overzealous and sloppy,” BW stringer Dominic Holden wrote. “Among the follies, police jailed a bar employee for 11 hours, allegedly for serving a drink to a drunk man — which would be considered over-service — but the Seattle Times wrote that the police report says the bartender ‘poured him a glass of water.’ Carr charged the bartenders and doormen with gross misdemeanors, punishable by a year in jail, but not a single case resulted in a conviction. Some cases were tossed out. One jury found a man not guilty in 20 minutes; two cases ended in mistrials. As a deluge of public criticism swelled — the entire sting appeared to be politically timed one week before the Seattle City Council was set to vote on strict new rules for nightclubs — Carr offered slap-on-the-wrist plea agreements for lesser charges to 17 of the defendants, most of whom had no criminal history.
“Just before the election last year , Carr faced more cries of political motivation against bars. An assistant attorney at Carr’s office warned bar owners — who had overwhelmingly come out to support Carr’s opponent — that police would approach apparently intoxicated pedestrians, ask them where they’ve been drinking, and try to shut down any bars they name. Carr claimed problems of over-service at bars in the Capitol Hill neighborhood were linked to rising assaults and robberies. But police records showed that robberies and assaults in the neighborhood were actually down,” Holden continued.
Eventually, Seattle grew so frustrated with the crackdowns that Carr was voted out of office by 28 points.
Then, based in some part on his history of liquor enforcement, he was hired as city attorney in Boulder, where the position is not elected.
Carr’s controversial past on bar crackdowns was actually viewed as a positive trait when he was hired by Boulder City Council. In 2010, then Boulder Deputy Mayor Ken Wilson, who had helped lead the search for a new city attorney, told BW that he was “particularly impressed by Carr’s ideas to regulate bars and defend the city’s ban on camping.”
A year later, in 2011, when asked by BW about that year’s spike in alcohol violations, Carr said, “I take underage drinking very seriously, but in this town the city attorney doesn’t really have a policy role there. We advise the liquor board on legal issues and help them do their hearings better, but we don’t give them policy direction. They’re pretty tough on their own.”
But it appears that they have gotten much tougher in recent days.
Last year, K’s China, a favorite University Hill drinking spot known for its cheap, strong drinks, got put through the ringer when a drunk minor was arrested, said that he was drinking at K’s China, and then later recanted, citing pressure from police to finger K’s China. The fallout included a BLA closure of K’s China even without a direct violation, a resulting lawsuit against the City of Boulder for “an end run around the rules of evidence,” and No Entiendo, the business that took over the space, also closing because of problems with purchasing K’s liquor license. The tactic of asking where people had been drinking was another of Carr’s foibles in Seattle.
“If they want to kill nightlife in Boulder — make bars go away, make music venues go away — Tom Carr is your guy,” David Meinert, an owner of Seattle restaurants and bars and a leader of the Seattle Nightlife and Music Association, told BW when Carr was hired in 2010.
The second elephant is the city’s recent efforts at Stepfordization.
According to real estate data site Trulia.com, the median sale price for a home in Boulder is around $430,000, far beyond the price most young people can afford to spend on a starter home. Boulder’s property-owning population invested in the city for the long term is wealthy, aging and tired of the city’s hedonistic reputation, especially when it comes to the university, and they’re flexing their political muscle.
In fall 2013, shortly before the stepped-up alcohol enforcement began, the city conducted a poll of more than 2,000 people about alcohol and land use in Boulder.
Question number five was “Do you think alcohol overconsumption is a problem in Boulder?” A whopping 75.4 percent of respondents said no.
Twenty-nine percent repeated that overconsumption wasn’t a problem when asked what the primary negative impacts of alcohol overconsumption was, and another 45.4 percent said the problems were insignificant and often exaggerated.
Eighty-six percent of respondents opposed additional zoning regulations for businesses that sell alcohol after 11 p.m.
The city promptly disavowed the results of the survey and proceeded onward, implementing its Action Plan to Reduce the Community Impacts of Alcohol Overconsumption in October.
The biggest item to come out of that was an amendment to the city’s “500-foot rule” regulating liquor sales near schools and universities, the effect of which would be to force bars on University Hill to close at 11 p.m. through the use of zoning restrictions.
Dozens of residents and business owners spoke against the proposal and only three spoke for it. One of them was BLA member Lisa Spalding.
The city went forward with the change anyhow.
In November, the University of Colorado Boulder launched its Be Boulder publicity campaign to rebrand the university’s image as a party school. In the past, the university had gone as far as pouring fish gut fertilizer on the central campus quad to put the kibosh on 4/20 celebrations, which makes it seem like no small coincidence that the PR effort kicked off just before the legalization of recreational marijuana went into effect, and at nearly the same time as efforts to crack down on drinking near the university.
And as anyone could have predicted, the effect of these policies was not a decline in alcohol consumption by university students who decided to rethink their lives thanks to the joys of legislated morality, but simply an exodus to Pearl Street bars when the Hill closed at 11 p.m., causing those bars to be more congested and further exacerbating the issues that come at closing time, including the risks of overserving, a risk that increases more with every bar the city forces closed that further concentrates the fixed drinking demand in a smaller supply of venues.
The third elephant in the circus is big development money.
Construction recently began on the redevelopment of the former Daily Camera building, the largest development project in downtown Boulder in years. Investors with deep pockets have financial interests in the area and plain truth is they get greater returns from the sorts of restaurants that serve $12 cocktails than they do from those that offer $3 pints.
The city strategy outlined in late 2013 included “land use code definitions for hospitality establishments to differentiate between lower and higher-intensity uses.” The less legalease version of that is the city is using zoning to push restaurants instead of taverns.
Downtown bar owners that spoke with BW for this story expressed concern that the same rezoning strategies that were used to shut down University Hill at 11 p.m. will soon be used to close down Pearl Street.
That fear was given weight during the discussion to deny a tavern permit to the Kava Lounge during March’s BLA meeting, in which one major focus of the board was that there were already enough similar establishments in the downtown area, and that it was likely to the be the sort of place that attracted large crowds. But as McMurray protested, Boulder only has a scant few business districts, all of them pre-built, and there isn’t really anywhere to put a bar like Kava Lounge except in that cluster of downtown nightlife spaces.
All those items put together is why every bar owner BW talked to for this story also said that, knowing what they now know, they wouldn’t choose to open a business in Boulder, with Longmont and Fort Collins being the top places they’d choose instead.
That alone should be cause for concern. But again, no one in charge is talking.
It’s simple to point out abuses of power or malpractice when they are illegal. But little if anything that the city has done as part of its alcohol crackdown is explicitly illegal. Instead, it is just opaquely conducted and questionably conceived.
Despite all the stress he’s been through, even Jim Sonn agrees.
“The laws are reasonable,” he says. “We [bar owners] have no problems with the laws. We want to follow the laws. We are concerned with the safety of the public and realize we have a large responsibility there. The problem is with reasonable enforcement.”