The butcher’s bill

Two decisions by Boulder’s alcohol board spell trouble for some

Josh Gross | Boulder Weekly

Those that read “The New Moral Crusade,” Boulder Weekly’s March 27 investigation into Boulder’s recent crackdown on local bars, might have been surprised by the relative calmness of the Boulder Beverage Licensing Authority meeting on April 16, the first meeting subsequent to the story. Unlike the meetings detailed in the “Crusade” piece, there was little emotion, and few aspersions cast at bar owners’ “moral character.” By most measures, it was the sort of tame bureaucratic snoozefest that makes people lose interest in city government, even in times of scandal. A new member was confirmed and elected chair. A pending case was granted a stay to better prepare. Roberts’ Rules of Order were respected.

The real action was in what wasn’t discussed: new developments on two recent rulings by the BLA.

The first concerns downtown bar The Pearl Street Pub, and the eight-day closure the BLA levied against it in January for charges of “serving a visibly intoxicated person.”

In addition to facing the BLA to defend his liquor license against the charges in January, Pearl Street Pub owner Jim Sonn faced Class 2 misdemeanor criminal charges punishable by up to 12 months in prison for the same incident. Sonn told BW that he tried to get the BLA to delay its hearing until after the criminal trial, but that the board wouldn’t allow the requested stay. His trial was held April 8.

The day-long jury trial at the Boulder County Justice Center centered largely on the testimony of State Investigator Chelsea Rosipajla, who was undercover in Pearl Street Pub looking for signs of overservice. She thought she found one in a member of a wedding party who ordered a round of shots.

“I observed him swaying, which in and of itself isn’t anything, he could be tired,” said Rosipajla. “But when I got closer, I saw red, watery eyes.”

Those red, watery eyes observed — after midnight — were enough for Rosipajla to call for backup and to have a citation issued. State law doesn’t allow police to use a Breathalyzer in these stings, saying only that it’s illegal to serve someone who is “visibly intoxicated,” while not offering a precise legal definition of what visibly intoxicated means, often leaving bartenders and police with very different barometers. Defense council pressed Colorado Department of Revenue Alcohol Enforcement Officer Kelly Haralson on the lack of a definition, asking if it meant someone talking loudly over music or someone throwing up in the back alley.

“Person under the age of 21 isn’t defined either,” she fired back, leaving observers bewildered at the comparison.

In addition to the report of a man swaying on his barstool, a photo of two Coors Lights and a shot was entered into evidence.

“How far are we going to go with this law?” the defense said in its closing statements.

The verdict? Not guilty. 

That means the BLA levied a penalty against Sonn, his bar, and his employees for charges a jury exonerated him of.

“A criminal case has a very high burden of proof. It’s beyond a reasonable doubt,” says Senior Assistant City Attorney Sandra Llanes who provides legal advice to the BLA. “And an administrative case has a lower burden, it’s preponderance of the evidence, as it’s called.”

The evidence in question had largely to do with police reports. There were multiple undercover police officers in The Pearl Street Pub during the incident that lead to the charges against Sonn. Each of them filed a report detailing their experiences. But as most of the police officers had inadequate vantage points to offer anything more than speculation, most of those reports were ruled inadmissible in Sonn’s criminal trial. But for the BLA hearing, they were both considered as evidence, and uncontested by the lack of defense witnesses or crossexamination. The short version is that in the criminal trial, Sonn was able to present his own evidence and offer a defense and as a result he won, but at the BLA hearing, with little opportunity to defend himself or question those accusing him of a crime, the deck was seriously stacked against him.

“The reason why [there is a higher burden of proof in a criminal case] is that a criminal case can carry severe penalties, possibly even jail time,” Llanes says. The less-severe penalty levied by the BLA (a forced eight-day closure with 13 more days put in reserve for any potential future violations) is estimated to have cost The Pearl Street Pub as much as $20,000, and put its employees out of work for a week. And that fell far short of the permanent closure that was being pushed for by BLA member Lisa Spalding.

As for whether or not the outcome of Sonn’s trial will have any effect on the BLA’s ruling, the answer is no.

“There are different standards for different forums and one doesn’t really have any bearing on the other,” says Llanes.

The second development concerns an application for a liquor license for downtown’s newest addition, Kava Lounge, an application that the BLA denied in March.

Reasons cited for denying the application at March’s BLA meeting included concerns about the Kava Lounge’s inadequate kitchen facilities, a spotty previous record with alcohol laws at a Denver location and concerns about crowd control around its exits, analready congested alley that runs between downtown magnets like the Nitro Club and Absinthe House.

At the hearing, Boulder Police Alcohol Enforcement Officer Carlene Hoffman was especially concerned with the increased police presence that would be required for a club of that size in that location.

The result? 

Kava Lounge announced plans to open in late April or early May as an 18-and-up that will be open until 5 a.m. on weekends. After the BLA meeting, Kava Lounge had some plans to be a B.Y.O.B. (bring your own booze) establishment, an odd quirk that is legal in Colorado under certain circumstances, but the owners changed their mind after some meetings with the BPD.

True to its name, the 300-capacity Kava Lounge will also serve the mildlyintoxicating — over-the-counter in America, but banned in Canada, Switzerland and Germany — Kava root. No alcohol will be served.

The BLA’s quest to limit the problems of late-night crowds resulted in the unintended consequence of Kava Lounge deciding to be open later and serving a younger clientele. It seems unlikely that this was the result the BLA was attempting to achieve with its denial.

What the BLA did do at its April meeting was hear a testimony from Marc Stine, the Greek Advocate at the University of Colorado Boulder, who was emailed out of the blue and asked to appear before the BLA to brief them on alcohol consumption issues at fraternities.

“Alcohol is an issue for 18- to 24-year-olds no matter how you organize them,” he said.

Stine expressed concern about increased hard liquor consumption, something he’s seen rise in recent decades.

“I think that the increase of binge drinking is the direct result of the universal 21 drinking age,” Stine said, a statement BLA member David Timken quickly suggested reading to counteract. Stine further explained that he felt hard liquor binging had replaced 3.2 beer drinking for underage students and noted “you can’t get alchohol poisoning from 3.2 beer, we tried.”

After Stine discussed how frats must submit a plan to BPD 72 hours before having a party, and often provide third party security and/or onsite EMTs, Spalding pressed Stine about what level of control he had over rental houses that were not fraternity houses, to which he gave the obvious answer: not much.

Stine then said that he didn’t think trying to shift kids from The Hill to Pearl Street was a good idea.

“The police spend an enormous amount of resources on MIPs,” Stine told BW after his testimony. “And it doesn’t change a thing.”