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Thursday, February 24,2011

Buzz kill

City nabbing more bars, restaurants in liquor-license stings

By Jefferson Dodge
The city of Boulder has seen a dramatic spike in the number of liquor-license violations doled out in recent months.

The question is, what is causing the spike? Is it simply a grant the city received to fund additional sting operations? Is the economy causing desperate bars and restaurants to cut corners around enforcement to maximize profit?

Is it the new city attorney who started last summer, bringing with him a controversial reputation for cracking down on nightlife while working in a similar capacity in Seattle? Or is it simply a sense of letdown among bars and restaurants after a period of heightened awareness about underage drinking prompted by the Gordie Bailey tragedy?

According to city records, the Beverage Licensing Authority (BLA) reviewed 32 violations during the last six months of 2010, almost double the 17 violations filed during the entirety of 2009.

And it’s not just the college dive bars being targeted. It’s also upscale places like Frasca, Mateo, the Boulder Cork, Trattoria, Restaurant 4580 and the Boulder Chophouse, all of which have appeared on the BLA’s agenda since May of last year.

Local bar and restaurant workers have noticed the uptick in enforcement efforts, and they share varying rumors about how they are carried out.

“I know they have been doing more stings lately, because a lot of places have been hit in the last six months,” says Elliot Forsyth, general manager of Brasserie TenTen.

Forsyth says his restaurant’s ID-checking skills have been tested by police twice in the past year instead of the usual once, and the establishment passed both times.

Bar and restaurant employees agree that selling alcohol to a minor can be a costly mistake. Not only does it usually carry a fine and a multi-day closure, but the server is often fired.

Ken Hess, a chef at Conor O’Neill’s, says he’s heard many stories from doormen about recent “stings” by police, all of which the bar has passed with flying colors. Sometimes, he says, they send in a man who is clearly older than 21 but has no ID or has an expired ID, to see if he is refused entry. Other times, it will be a young woman who arrives without ID, is turned away, and then returns with a fake one. When the bar’s doormen confiscate the ID, Hess says, she returns shortly with two officers who congratulate them for passing the test and ask for the fake ID back so they can continue their rounds.

One server at a downtown establishment agrees that there have been a lot more bars and restaurants around the Pearl Street Mall being slapped with violations than usual. He says police aren’t allowed to use fake IDs in their stings because it could be construed as entrapment. Usually, stings are carried out by operatives who are just a few months shy of being 21 and present their valid ID to see if servers are just looking at the birth year, or actually taking the birth month into their age calculation.

A manager at another downtown restaurant says police operatives aren’t allowed to lie, either, or else they risk entrapment charges. When presented with one of the relatively new vertical format IDs issued to those under 21, her employees still often ask, “Are you 21?” Occasionally, if it is a sting, the would-be customer will reply “No,” and leave.

Similarly, operatives are not permitted to actually drink the alcohol if they are served successfully, she says, so when someone pays for a drink but leaves without touching it, it’s a sign to servers that they’ve been stung.

The manager adds that she’s heard police will soon be sending in operatives who act extremely drunk, in an effort to test adherence to laws against over-serving someone who’s obviously intoxicated. One new arrival on the Boulder bar scene says two compliance checks a year is not unreasonable.

“I haven’t been stung yet,” says John Fayman of Backcountry Pizza, which recently opened in the old Dolan’s location. “If they sting me six times in six months, maybe I’ll feel different. But twice in a year seems par for the course.”

Fayman adds that members of Boulder’s Responsible Hospitality Group, a public-private organization dedicated to addressing community alcohol issues, often get a lighter sanction than nonmembers, especially if it’s a first offense.

The stinger

According to Officer Carlene Hofmann, youth alcohol enforcement officer for the Boulder Police, some of the rumors about stings are true — and some are not.

Hofmann says her department tries to run a liquor-license compliance check on every licensed establishment at least once a year, but this past year was different. In 2010, all licensees were checked at least twice, thanks in part to a $34,700 grant from the Colorado Liquor Enforcement Division that the Boulder Police received in October 2009 that lasts until the end of March. (The department received a similar grant in 2008, but at that time it was directed primarily to education efforts for high school students.)

Asked whether the spike in violations is due solely to the ramped-up enforcement efforts, Hofmann says, “That’s a hard question. The economy is poor, so that’s a problem. Businesses are struggling, so maybe they’re not checking as diligently.”

Hofmann says youth alcohol enforcement used to be a side job assigned to an officer in addition to his or her other duties. But a few years ago, it was converted into a full-time job. She did it on the side from 2005 to 2007, then took it on again full-time a couple of years ago.

Hofmann says officers will usually be waiting outside the bar, restaurant or liquor store when they send in an operative for a compliance check. The operative is always an underage person with a valid ID, she says. And Hofmann adds that while other jurisdictions allow operatives to lie about their age or use a fake ID, Boulder Police do not. Boulder Police operatives won’t beg for a drink if refused, and if they are asked if they are 21, they won’t lie.

“I want the places to comply,” she says, explaining that while there is no law against having the operative be dishonest, it complicates the situation and makes it a gray area. “They can, but are you really serving a purpose doing it?” (That’s not to say that she doesn’t try to track down and prosecute those suspected of using a fake ID when those are confiscated by servers.)

Asked whether allowing operatives to lie or use fake IDs would border on entrapment, Assistant City Attorney Sandra Llanes says that while she doesn’t prosecute the city’s liquor-related cases, it does seem cleaner to be above board with the compliance checks than to introduce deception.

“I’m a former prosecutor, and just from my own perspective, if I were having to prosecute a case like that, it would be difficult because you create a lot of ambiguity, and so to get away from that you would want to make sure you don’t cross any lines of entrapment,” she says. “That line of entrapment is a little bit blurry, so you want to stay away from that as much as possible, and the way to do that is to consistently do it the same every time. You want to make sure there aren’t any influences, like lying or whatever else it is, so we stay away from that to make sure it’s clean. … It’s not about tricking people. It’s about whether they are in violation or not.”

The consequences

The operative wears a recording device that is transmitted to an officer’s receiver, but sometimes the reception is faulty, so when the sting is done and the operative needs to contact the officers, “usually a text or a phone message is what I get,” Hofmann explains.

When servers pass the test, she says, the operative hands out a card congratulating them for passing the compliance test. If they fail, Hofmann says she or another officer will come in and speak with both the manager and the server, issuing a municipal ticket to the server for selling alcohol to a minor. The manager is told to expect a notice from the Beverage Licensing Authority to attend a hearing regarding the violation.

Hofmann says an establishment that is a first-time violator can be closed down for anywhere from one to 14 days, depending on the circumstances. For example, she notes, about a year ago Harpo’s saw the first violation on that premises in about 25 years, so it only served a one-day suspension. On average it’s a three-day suspension, she explains, but repeat offenders can have their liquor licenses revoked by the BLA.

Hofmann says she primarily used underage Boulder County Sheriff ’s Office cadets as operatives for the stings in 2010. Thanks to the grant, the cadets were compensated for their participation.

“They were very willing to spend their Fridays and Saturdays with me,” she says. “In the past I’ve used other officers’ kids.”

Police can’t hire operatives who have alcohol-related violations on their record, Hofmann explains, and police officers’ kids are ideal candidates because she knows their family and their backgrounds. She says the department doesn’t use professional actors, despite rumors to the contrary.

When police want to run compliance checks to make sure visibly intoxicated patrons aren’t being served, Hofmann says, they don’t send in an operative who is acting drunk, they just send in cops in plain clothes to monitor who is served. And she says she doesn’t send in older operatives with expired IDs to do compliance checks.

She adds that servers don’t usually appreciate the stings, and sometimes become verbally abusive toward police, a reaction that can lead the BLA to hand down a more severe sanction.

“A lot of times they get upset even when they’ve passed,” Hofmann says. “We’ve had a couple yell and curse at our operatives.”

City attorney involved?

Tom Carr, who started as city attorney last summer, brought with him a reputation for cracking down on night life during his tenure as Seattle’s city attorney.

Among other things, he was criticized for a sting called “Operation Sobering Thought.” In 2007, Carr and the Seattle Police Department claimed that about two dozen people either illegally served minors or let undercover officers who didn’t have valid ID into bars. But critics called the campaign overzealous and sloppy. In one instance, police jailed a bar employee for 11 hours, allegedly for serving a drink to a drunk man, but according to the Seattle Times, the police report said the bartender “poured him a glass of water.” Carr charged the bartenders and doormen with gross misdemeanors, punishable by a year in jail, but none of the cases resulted in a conviction, and some were tossed out. In addition, in 2009, an assistant attorney at Carr’s office warned bar owners that police would approach apparently intoxicated pedestrians, ask them where they’ve been drinking, and try to shut down any bars they name.

But Carr told Boulder Weekly that until his initiative, Seattle police had not done regular compliance checks like Boulder Police do.

“We got all sorts of grief because we did 25 establishments,” he says. “Here, they do it all the time.”

When asked whether he had any role in the spike in violations that Boulder has seen since he took office, Carr replies, “You think I have the power to make people violate more? … That does seem to coincide with my term here. If, in fact, I am creating better conditions in Boulder, that’s great, but I don’t think it has anything to do with me, frankly. 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.”

“I think Boulder already takes it pretty seriously. Our job is just to support them. As I said, I don’t have anything to do with alcohol.”

Carr does offer an alternative suggestion for what might have caused the spike, though, and he doesn’t chalk it up to the enforcement crackdown.

“I would say there’s a chance it is violation-based and not enforcement-based,” he says. “It’s always possible that when you’re detecting more violations, people are violating more.”

He says one possibility is that there has been some letdown among liquor licensees in the years since the 2004 alcohol-induced death of CU fraternity pledge Gordie Bailey.

“My experience with any enforcement program is you get compliance in the beginning and kind of a dropoff in compliance later on, so it’s possible that what you’re doing is detecting more violations,” he says. “You get compliance when there’s a tragedy or an emphasis, and then it’s human nature to slack off.”

‘Business as usual’

Similarly, when asked whether Carr is driving any increase in enforcement efforts that might have caused the spike in violations, Assistant City Attorney Llanes replied, “I would emphatically say no. He hasn’t had anything to do with that. It’s been business as usual.”

Llanes, who sits on the Boulder Beverage Licensing Authority as a legal advisor, is effectively the liaison between the city attorney’s office and the liquor license enforcement effort.

“I can say without a doubt that, as far as alcohol and licensing, there hasn’t been a change or new direction or anything like that, and I’m the person who advises the licensing authority, so I would know for sure,” she says.

Like Llanes, Responsible Hospitality Group President Chris Emma, store manager of Liquor Mart, dismisses the idea that Carr’s presence has had anything to do with the spike in violations.

“I haven’t heard anything directly as a result of him being in charge now,” Emma says. “I don’t know that he’s been around long enough that he could have any direct effect on it. … You’re always going to get a little grumbling from the folks who get in trouble, but that’s the nature of the beast.”

Emma acknowledges that active membership in his group can benefit establishments that receive violations, because it is one of the “mitigating factors” that those found guilty of a liquor license infraction can use to argue for a lighter sanction.

“It took years for our organization to gain the legitimacy of the city council and Beverage Licensing Authority, to have us on the list of mitigating circumstances that you can work in your favor in the penalty phase,” he says.

Emma chalks the spike in violations up to enhanced enforcement, not more violators.

“I really attribute it to one thing and one thing only, and that’s the diligence and regularity with which the liquor enforcement officer is doing the stings,” he says.

Officer Hofmann says the spike may not have appeared until the last half of 2010 because it was several months before the ramped-up compliance effort got under way, and there is sometimes a two- or three-month lag between when a violation occurs and when it appears on the BLA’s agenda.

Llanes says the Beverage Licensing Authority members themselves may be part of the reason for the increase in citations.

“They want to see more compliance checks, generally,” she says. “Alcohol issues are a hot button for the community.”

The grant funding for the extra stings probably didn’t hurt either.

“I think that’s probably the main reason,” Llanes concludes. “I don’t think people are trying to break the law.”

—Katherine Creel and Dominic Holden contributed to this report.

Respond: letters@boulderweekly.com

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Good luck with Carr.  There is a reason that he was not re-elected here in Seattle.