In October, Boulder’s City Council was warned.
As part of the fall overhaul of the city’s alcohol codes, staff advised the City Council to put the kibosh on the Beverage Licensing Authority (the volunteer board which oversees alcohol licensing) by bifurcating it into a board that reviews liquor license applications and a separate hearing officer who deals with violations. Staff stated in no uncertain terms that the current BLA structure was expensive, inefficient, inconsistently fair, out of step with both similar agencies elsewhere in the state and similar city boards, and that those elements made it less effective. Especially when it was paired with the sorts of overservice stings that were adopted around the same time, and reported in Boulder Weekly’s March 27 cover story, “The New Moral Crusade.”
“Prosecutions of these types of cases are typically more complicated from a legal and enforcement perspective than under-age compliance checks. Suspension or revocation of a liquor license requires what is essentially a trial. A legally trained hearing officer is much better equipped to handle these types of enforcement cases than a volunteer board,” reads the City Council’s information pamphlet distributed October 15, 2013.
The report also detailed the high cost of support staff, police hesitation to pursue serious cases when the judicial oversight is inconsistent, the length of hearings and the fact that other cities don’t have these problems, largely because they use hearing officers instead of a volunteer board.
Despite staff ’s recommendations to bifurcate or restructure the BLA, the City Council punted.
It adopted the other proposed changes to alcohol policy, such as rezoning on The Hill, but kept the BLA structure intact, with council members Macon Cowles, Lisa Morzel, Tim Plass, George Karakehian, and then Deputy Mayor Ken Wilson leading the opposition against bifurcation or restructuring.
This month, a scenario staff had warned council about played out in City Hall.
After more than two hours of contentious testimony at the May 21 BLA hearing, the board was forced to move the overservice hearing to decide if downtown barcade Press Play would be able to keep its alcohol license to a special day-long session that could accommodate the eight witnesses and six photo and video exhibits entered into evidence.
“[We’ve] done the math, we have had two witnesses and we have eight altogether. That would take us to two in the morning at our current pace. I don’t think that’s fair to everyone else who’s waiting. And I don’t think at two o’clock in the morning you’d like whatever we come up with,” said BLA chair David Wallace.
The June 5 special session didn’t go much faster, or much smoother. It had nine more witnesses, featured consistent sparring between defense lawyer Joaquin Padilla, city prosecutor Janet Michaels and legal advisor Sandra Llanes.
“Mr. Padilla, this is not a criminal trial. This is an informal administrative hearing. Please adhere to our rules of proceeding,” Llanes shouted after Padilla objected to his objection being overruled.
“You don’t need to raise your voice with me,” Padilla fired back at Llanes, after being admonished again shortly after.
“I didn’t think I raised my voice with you,” Llanes nearly shouted back.
“Mrs. Llanes, you don’t raise your voice with me. I want to make a clear record here. I’ve had enough of you, and your voice, and you will not do that anymore,” Padilla said.
Then there were the aspersions cast at one another’s professionalism.
“It’s a normal procedure,” said Padilla, after having an objection overruled.
“In a criminal procedure,” said city attorney Michaels.
“In a civil hearing as well,” said Padilla.
“It’s not,” said Michaels. “Maybe you should step into a civil courtroom sometime,” said Padilla.
But between the tossed barbs, there was an equally contentious case as well.
The city attorney alleged that at approximately 1 a.m. on the night of Feb. 9, several undercover officers had observed Carl Oskarsson struggle to order and pay for two drinks at Press Play, then struggle to walk with them back to his game of pool, which he was struggling to play, while struggling to stand. The city further alleged that when he was confronted by State Investigator Kelly Haralson, Oskarsson become combative and had to be put in cuffs, then transported to the drunk tank.
Defense counsel countered that Oskarsson wasn’t drunk, only became disagreeable when confronted and manhandled by police (who may not have adequately identified themselves) for a crime he was unaware of, and that while the seven officers were busy wasting their time with Oskarsson, they were either ignoring or refusing to help with the highly intoxicated man that bartenders and bouncers had to forcefully remove from the bar after he was cut off, then began stealing other people’s drinks and making a scene. This allegation included security camera footage and was driven, Padilla argued, by the police’s urge not to observe visibly intoxicated persons, but to punish businesses or cultures they find undesirable.
Lawyers quibbled over sight lines in the bar, how crowded it was, how dark it was, what constitutes “visibly intoxicated,” the difference between “leaning” and “laying” on the bar, a typo on a search warrant, and whether experience as a police officer makes you more or less able to detect inebriation. After Michaels questioned investigator Haralson about her decade-plus in police work, and her wealth of experience finding visibly intoxicated people, Padilla took the line of questioning right back apart.
“You don’t need your training and experience to detect someone that’s visibly intoxicated, correct?” he asked.
“No, sir,” said Haralson.
“So really, your testimony about your experience, your proclivities, your professional proclivities, really has no bearing on whether someone’s ability to detect whether somebody is visibly intoxicated or not, correct?” said Padilla.
“Correct,” said Haralson.
Documents were produced and disputed over whether Oskarsson had ordered a Coors Light or a Bud Light. Oskarsson himself said it might not even have been a light beer at all. A great deal of time was spent discussing beer foam mustaches, and whether it’s “normal” to lick them off or not.
And that all says nothing of the near-constant confusion over procedure and process.
Chair David Wallace frequently bore a look of confusion and frustration through the proceedings, a look matched only by Padilla, who was admonished for things like standing, a gesture of respect to the judge in the federal courtrooms he typically argues in front of, but a bewildering abnormality in the quasi-judicial world of the BLA. Wallace also made several comments bemoaning the length of the proceedings, and at least one insinuating that the BLA didn’t even have to bother with the hearing at all.
“We’re not going down this course again, are you clear?” Wallace said to Padilla after a line of questioning Wallace apparently didn’t want to hear. “If not, we don’t have to proceed.”
And all that time and effort from the members of the volunteer board, the salaries of three lawyers, the testimonies of six police officers, two bartenders, two business owners and Carl Oskarsson, and the work of several support staff was spent trying to ascertain if one man drank one too many Bud or Coors lights.
And after all that, the case still wasn’t resolved. Another special session had to be scheduled nearly six weeks later for Thursday, Aug. 14, the first available date that both the council chambers were available, and the various members of the BLA would not be out of town on summer vacation.
This was exactly the sort of debacle that the City Council was being warned about by staff in October. But the bigger concern is if the special session were not an isolated case, but standard operating procedure.
Were the time-frame for Press Play’s hearing applied to January’s BLA meeting, in which nine bars had to appear before the BLA for similar violations, that would represent hearing times of in excess of 18 full days, changing a one-evening-a-month volunteer board into nearly a full-time job for its five members and support staff.
That may be why on May 20, a memo went out to City Council reminding them of the vote, as well as staff ’s recommendation, and which meeting minutes they should refer to for a refresher on the issue. It also said the proposal could be brought back with the support of five council members.
BW emailed council members Karakehian, Plass and Cowles, and Mayor Matt Appelbaum, all of whom had been on council for the October vote and had a hand opposing bifurcating or restructuring the BLA, to ask them to further explain their reasons for tabling the proposal in October (rea sons cited in meeting minutes were that the council needed “more information”) and if the support of five council members had been found to bring the proposal back, and if they were one of them.
They didn’t respond.
We wrote a second time.
Again, there was no response.
Perhaps the chaos of Press Play’s hearing was the additional information council needed.