Buzz kill

City nabbing more bars, restaurants in liquor-license stings

Jefferson Dodge | Boulder Weekly

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.

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.

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.)

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

“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

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.

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

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.

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.”

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

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.

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?

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.

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.

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.”

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.”

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.”

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

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.”

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.

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’

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

“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.

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.

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.”

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.

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.

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.

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.