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HomeMy WebLinkAboutminutes.council.19790618 Mayor Edel called the meeting to order at 5:00 PM with Councilmembers John Van Ness, Susan Michael, Charles Collins and Tom Isaac present. Also present were City Manager Mick Rick's Americ~ Mahoney, City Attorney Ronatd Stock, City Sanitarian Tom Dunlop, Fire Marshal Bob Jacobs, Cafe hearing Chief of Police Rob McClung, Police Officer Chester Zajac and Liquor Inspector Chuck Dotson Mayor Edel stated that the purpose of this meeting is to discuss the liquor~license'of Rick American Cafe. He opened the public hearing. Stock entered the following items-into the public recOrd: ~otice of the hearing delivered to the licensee dated May 31, 1979, the order to show cause of the same date also served upon the licensee, and a memo from Chet Zajac dated March 28, 1979. He also noted a return receipt certificate of delivery to the licensee of the order to show cause. He asked the Mayor and Council to consider the testimony of Officer Zajac and Chuck Dotson. He asked that their testimony be under oath given by the clerk.and the licensee should have the right to cross examine. Boots Ferguson, representing the licensee, noted that they are considering the matters raised in the notice served upon Entertainment, Inc. d/b/a Rick's American Cafe. He felt they should first consider the allegations of violation of the Ordinances of the City of Aspen and second the renewal of the license. Deputy City Clerk: "Do you swear to tell the truth, the whole truth and nothing but the truth, to the best of your knowledge?", Chuck Dotson, "I do". Stock asked Dotson if he had any evidence that he wished to present to the Council rec the licensee and the specific incidents in question. Dotson said his information was the same as the Officer's. He spoke With JOhn Barber, owner of Rick's, regarding the type of contest run at the establishment~ Dotson said, based on the information provided by Barber there was not a violation of the license. He felt, based upon the Officer's report, there was evidence that should be brought before the Council. May6r Edel asked Dotson's reaction to the incident. Dotson noted there were complaints of the T-shirt contests going on in the Aspen area, there was a letter sent from the City Attorney's office regarding these contests and, subsequent to that, there was an alleged violation. He considered this more serious since they were informed of the laws. Councilmember Isaac asked if they had any previous violations. Dotson said no. Councilmember Van Ness asked how this violates the liquor~code. Dotson read Section 47105.1 of the Colorado Liquor Code which states, "Each licensee shall conduct its establishment in a decent, orderly and respectable manner and shall not permit within or upon the licensed premises the loitering of habitual drunkards, or intoxicated persons, lewd or indecent displays, profanity, rowdiness, undue noise, or other disturbance~or activity offensive to the senses of the average citizen, or to the residents of the neighborhood in which the establishment is located." He pointed to the passage on lewd or indecent displays as the violation. Councilmember Van NeSs asked if ~ ~ he read it to mean the lewd or indecent displays must also be offensive to the senses of the average citizen or are those two separate phrases. Dotson read it to be two separate phrases. Stock noted that they are not claiming this a~the section violated. In the notice delivered to the licensee, they sited four section of the City code: 4-24, the right of the Council to suspend or revoke a license for a violation, 4-22, a condition of the license is that the licensee shall abide by any ordinance, state law or regulation, 4-23, a licensee's reponsibility for any activity that occurs on his premise even though that activity may occur as a result of an employees act or the act of a patron at the premises and 13-27, it is unlawful for any person to willfully appear in the state of nudity or in any indecent or lewd dress or condition in any public place or in a place open to public view. Councilmember Van Ness noted that the nude people were not employees. Stock said that was not the argument. Dotson noted that this item was delayed because it is easier to conduct a hearing on possible renewal or nonrenewal than a suspension or revocation hearing. Stock asked if DotSon had a recommendation to the Council. Dotson opted to hold his recommendation. Ferguson objected to this request for his recommendation. Council. member Van Ness asked if the complaints he received were the same as the Police Department': Dotson said he was referring to the police report. Ferguson asked if the only complaints he received were those in Zajac's memo. Dotson said yes. The Deputy City Clerk swore in Officer Chester Zajac. Stock nOted that Zajac's memo did not prove any item within the memo, it only shows to the Council and the record that it was written. The purpose of Zajac's testimony is to prove what events took place and what Zajac witnessed personally. Zajac said he was on a routine bar check with Officer Gary White on March 28, 1979. They entered Rick's American Cafe at approximately 12:15 AM. There was to be a wet T-shirt contest sponsored by Rick's. Stock asked how long they were in Rick's. Zajac said from 12:15-1:30 AM. Stock asked how long they usually stay on a normal bar check. Zajac said depending upon the situation, anywhere from 5 minutes to 1-1½ hours, this check lasted long because of the complaints. Mayor Edel asked how many people complained and who. Zajac estimated 12 people, locals and tourists. Zajac noted his supervisor advised him to stay at Rick's, take complaints and do what he felt best. He continued to observe the activity, record the complaints and then left the to dictate the memo. Mayor Edel asked if he advised the management of the complaints. Zajac said no, he did not feel it was his place to do so and did not feel it was wise to try to interupt the program. Stock asked if those people who complained stayed for the show. Zajac said no. Mayor Edel asked Stock what powers an officer has in this type of situation. Stock noted that, prior to this incident, he gave an order to the PD that if they saw any nudity in a bar because of a wet T-shirt contest, they were to make a report by memo to him and not take any direct action at the time of the incident. He felt there is more authority in the liquor licensing provisions th~n in the legislation of morals through the normal criminal statutes. Stock asked Zajac if he could continuously view the stage during the 1% hours. Zajac said yes. Stock asked Zajac to explain the performance. Zajac said they took one performer at a time, female, doing a modern type of disco dancing to recorded music narrated by someone he assumed was an employee of Rick's. Mayor Edel asked if this person was in charge. Zajac did not knoW, he said he was conducting the operation by telling people when to come out and leave, when the judges should judge, etc. Ferguson noted that this person could be an independent contractor. Mayor Edel said he would still be an employee of the corporation. Councilmember Van Ness said he could also just have been doing it for fun. Mayor Edel wanted this person identified. Stock asked Zajac if he could identify any of the performers or the MC. Zajac said he could identify them by photo but did not know them personally by name. He described the MC as a white male, about 5'10", 150 lbs. with a black afro style hairdo and said he could identify him. He called the girls on stage, one by one, by name, and told them to begin their show. The5 would dance for a brief time and the MC would throw some type of liquid (liquor or water) on their upper bodies, they would continue.dancing and take off their shirts. Mayor Edel asked if everyone took off their shirts. Zaja¢ said yes and a majority of them took off the lower portions of their outfits and were totally nude. Councilmember Isaac asked how many participants there were. Zajac said approximately 8-9, his memo said six. Rick's Am~ricanl Cafe hearing Ferguson asked, when confronted with the complaints, why Zajac was afraid to stop what was happening. Zajac said it was a standing room only crowd, very wild and drinking heavily. Ferguson asked if they were enjoying the show, Zajac assumed so. He noted that every time the MC said "Well, the police are here", everybody would turn around and moan and being the only officer, he did not feel equipped to stop the~events. He did not solicit complaints. Ferguson asked if he took written notes of the complaints. Zajac said no, all his notes were in the memo. Councilmember Isaac asked if he was assigned to Rick's that night. Zaj~ said it was a routine visit. Councilmember Isaac asked if he knew of the events. Zajac said there was a big sign in front. Councilmember Isaac asked if he saw advertisement before the event. Zajac could not recall. Mayor Edel asked if it was advertised. Owner John Barber said yes. Ferguson asked if any of his superiors in the police force had prioI knowledge of the contest. Zajac did not know. Stock asked if there was a fee for entry. Zajac could not recall. Zajac stepped down. Stock said this was the evidence from the City and asked if the licensee had any witnesses to present. Ferguson asked if he could assume that the hearing on the violation and the show cause are being consQlidated in this hearing. Stock said yes. The Deputy City Clerk swore in John Barber, owner of Rick's American Cafe. He is a stockholder in the corporation and the manager. Ferguson asked if Barber was aware of the T-shirt contests. Barber said yes Ferguson asked if he was on the premises at the time of this particular incident, March 28. Barber said yes, he was there for the beginning of the contest and went to his office.. He noted that he spoke with the City Attorney about these contests and how to conduct them in a manner that would not be offensive to the public. He stated that he informed the City Attorney of the contests. He stated that he has been in the bar business for 15 years and never attended this type of hearing. Barber stated that he specifically told all his staf~ that there was to be no nudity whatsoever. He stated that had he seen the event, he would have stopped it immediately. Mayor Edel noted that he told his staff no nudity and they did not stop the proceedings. Barber stated the first time he heard there was nudity was when he Went to get the license renewed. Stock read the letter written from his office regarding wet T-shirt contests sent to Rick's, Little Nell!s and the Chesire Cat. It state that the contest was legal but that nudity was not to be tolerated and warned them of the consequences. Barber stated that his attorney received the letter and advised he get in touch with Stock. Mayor Edel stated that this was not their concern. Ferguson said Barbe~ was trying to say he was not aware of the incident. Ferguson asked Barber if the MC was an employee of Rick's. Barber said no, they had several people that liked to do it. Ferguson asked if the MC was compensated in any way. Barber said no. Ferguson asked if any of the participants were employees of Rick's. Barber said no. Ferguson asked if they were paid. Barber said they were given prizes. Councilmember Michael asked if the MC was given free drinks. Barber said probably so. Councilmember Isaac asked how many par- ticipants received prizes. Barber said they all received prizes, T-shirts, free dinners, cash awards, etc. Councilmember Van Ness asked if there was a cover charge. Barber said yes. Councilmember Wan Ness asked if anyone asked for a refund. Barber said two gentlemer complained about the hour of the contest and wanted their money back. Their policy was if the show went, they gave no refunds. Councilmember Van Ness asked if there were any reque~ s for refunds because of the nudity. Barber said no. Stock asked what type of advertising was used. Barber said their marquis, the newspaper and radio. Stock asked if there was any type of limitation on the type of individual allowed to enter, besides being 21. BarbE said no. Ferguson asked if Barber spoke with Stock before this contest. Barber said yes, he called before each contest. Ferguson asked why. Barber said he wanted to work closely with the City. Councilmember Isaac asked if it was Standing Room Only. Barber said it wag but the crowd often stood to see. He noted they only sold as many tickets as they had per- mission from the Fire Marshal to sell. Stock asked the top prize cash award to the winner. Barber did not recall, he guessed 50 dollars or a free dinner. Councilmember Van Ness asked what Barber plans for the future. Barber said he promised there would be no more wet T-shirt contests ever again at Rick's American Cafe. He agreed with the City that anything that was offensive to Aspen would be offensive to him. Councilmember Isaac asked if he planned to reopen. Barber said yes. Mayor Edel asked when. Barber said hopefully very shortly. Stock advised the Council that it's their position that the burden of proof rests with the City and in order to find a violation of these sections, they must find that nudity did occur and that this is a public place. He noted that a place may only be private if it is private 100% of the time. He read a section that he felt clearly showed the responsibilit of the licensee. The Deputy City Clerk swore in Ronald Stock. He believed one or two T-shirt contests occurred after the letter of February 22, 1979. The first one was proper in decorum and dress and well regulated by the licensee. He noted that the licensee has shown a great willingness on his part to live by the ordinances and codes of the City. He asked the Council to consider this. He stated that Barber spoke with him before the contest and told him of his intentions. Stock advised him of his position and Barber said he would call him the next day and tell him of the events. Stock advised him there should be no nudity. Stock agreed that he did not take as much effort as needed to prevent the violation but he did take some steps. Stock noted he appreciated Barber's statements to the media by supporting the City's position and understanding their reasons for regulating wet T-shirt contests. He asked that the Council find a violation has occurred and recom- mended suspending the license as little as one day effective during the winter season. Ferguson said one of the violations was to section 13-27 and others to the state code. He felt both the state regulations and the city code are unconstitutionally vague as far as what is indecent exposure, what are private parts of a!~person, etc. He noted that this is not the first year that wet T-shirt contests have happened in Aspen, nor is this the first one that has gotten out of hand but this is the first proceeding against a licensee. He did not believe that the conscience of the community was shot by the activities. He asked that they not hold Rick's out on a scaffold but that they impose a sanction that is reponsive to the violations that were made in light of Barber's efforts to comply. He agreed with the City Attorney's ~ecommendations and warned against the severity of refusin~ to renew the license altogether. He felt Barber had gone out of his way to understand the- parameters of the law and felt he had learned his lesson. Mayor Edel closed the public hearing. Mayor Edel noted that they must find if it is a public place and if a violation occurred. He felt it was a public place and asked the Council. Councilmember Van Ness asked how to Rick's Americ~ define public vs. private. Stock said a public place is any place that during the term of Cafe Hearing its license as open to the general public and allows the general public to enter even if entry is made by payment of an admission fee. Mayor Edel also felt a violation did occur and asked the Council. Councilmember Van Ness questioned whether it is proper procedure to not charge them on the spot and bring them to court immediately and let the judge decide. He felt they were setting themselves up as a court and felt uneasy about that. He did not like waiting for their renewal to come up and noted the licensee did not know of the problems until a month and a half later. He was not comfortable with imposing their value judgements and felt it a very unfair way to proceed and possibly illegal. Mayor Edel stated that they are a liquor licensing board and it is their job to judge. Councilmember Collins agreed with Van Ness. He felt if there were violations, citations should have been issued at that time. They are then a matter of record and when ~he renewal comes up, it is in the records and the licensee and Council are aware of them. Councilmember Michael noted that she will not be voting on this because of a conflict of interest but reserved the right to comment on community standards. She agreed that they should not wait for the renewal but felt the Council has a function to make a judgement in terms of community standards. She would like to see a discussion on how to handle this better in the future. She felt there was a clear violation and agreed Rick's is a public place. She did not believe that Barber was not aware that there was a violation until much later. She did not agree that Aspen was not shocked by this behavior. She agreed that the3'e were contests that were not advertised and just happened but something of this nature is very different and many residents were shocked. Mayor Edel noted the commercial benefit of this type of venture and promotion. Councilmember Van Ness did not think people knew there would be nudity and this was not their main promotion. Mayor Edel and Councilmember ~ichael said it was expected. Coungilmember Van Ness said they could not punish them for what people think. Councilmember Isaac felt the Council should make a policy statement on how they will handle this situation in the future. He felt there was a violation but the City was negligent in providing due process of law. Councilmember Van Ness stated that he is opposed to nudity an public. He noted that the owner of an establishment is responsible for the conduct therean but felt this should be clarified. He felt they should write into that law that it has ~o be within the proprietor's reasonable ability to control that behavior. Councilmember Isaac moved that there was a violation, Councilmember Van Ness seconded. All in favor, motion approved. (Councilmember Michael abstained.) Councilmember Van Ness was in favor of a light penalty. He felt the police officer might have been able to stop the activities. Mayor Edel noted that the police were given specifi~ instructions not to stop the proceedings. He was also troubled with the anonymous com- plaints and questioned their seraousness. He noted that March is a very rowdy time in the bars of Aspen and urged that they give them a warning. Councilmeraber Isaac agreed with Stock's recommendation for a one day suspensaon during the winter season. Mayor Edsl felt it should be more severe than one day but would go along with one day. Councilmember Isaac moved to suspend their license for January 5, 1980, there was no second, motion died. Councilmember Collins was not in favor of suspending the license for one day. Mayor Edel did not feel this would be effective. Councilmember Van Ness noted that they gave the Hotel Jerome a warning because of a violation and had no further problems. Councilmember Van Ness moved that they be given a warning, there was no second, motion died Mayor Edel moved that they have indeed committed a violation, that we recognize the viola- tion, that they recognize the violation and that because of prior practise, ending tonight we simply give them a warning and no more warnings, Councilmember Van Ness seconded. Mayor Edel amended his motion to strike the last line, Councilmember Van Ne~S withdrew his second. Councilmember Van Ness moved that we give them a warnang, Councilmember Isaac seconded. Vote Count: Councilmembers Van Ness, Collins and Isaac in favor, Mayor Edel against, Councilmember Michael abstained. Motion passed. Mayor Edel noted that Rick's owes the City of Aspen S2,130.42 as of the 15 of May for utilities. He also noted they owe Ashley and Associates, a local business, $260. They owe Gene Fisher plumbing and heating s25 for work performed December 5, 1978. He also asked the status of the tickets for a concert scheduled for last year, the performer was injured and did not perform and the ticketholders were told to hold their tickets for a performance to be scheduled. Tom Dunlop noted that he sited violations at his last inspection. Barber said these lations had been corrected but because the establishment has been closed, Dunlop was not able to determine their status. Mayor Edel asked what the violations were. Dunlop said there were employee hygiene related violations, constructions items not an compliance, equipment needing repair and restroom repairs. He said he would give an update on their status when he is able to inspect the premises. City Manager Mick Mahoney said he was not really concerned with the nudity. He said the Council was trying to determine a theme and a social consciousness for ~he community. He noted the first indication he has that a business is going bad is the honky-tonk promo- t~~ tions and specials. The Council is charged with determining what type of liquor establish- ments they wish to have operate within the city. Ferguson objected to Mahoney's comments as they may relate to Rick's. Barber said they let the Music Studsnts use their establishment for free, held benefits for certain organi- zations. He did not feel their establishment was using the honky-tonk promotions that Mahoney warned the Council to watch for. Mayor Edel asked if he had any signed contracts for the upcoming year. Barber said he did not have one signed contract all last year. All the performers of last year wish to return. Councilmember Va~ Ness said he felt this establishment adds alot to Aspen. He felt the town would be alot more boring if they drove them out of town. Mahoney clarified that he did not wi~h to drive them out at all, he was warning the Council of the signs he saw by the promotions they were holding. Mayor Edel understood that he was not aiming his comments at them. He asked Barber why the City had not been paid. Barber said he had been out of town for thirty days and they are now Rick's ~erican putting together financing for the sum~er season. Mayor Edel said he did not want to be CAfe hea~ing in the business of financing businesses. He said he liked what the establishment was doin( but he felt they were running the place like a candy store. Barber said they are putting together the money. He was not aware they had shut off the electricity, he got the notice today. Councilmember Van Ness felt they should approve the renewal conditioned upon the bill being paid in full. He noted that liquor licensed establishments are not the only businesses that string out paying their utility bills. He also noted that if they can't open the doors, they can't make the money to pay the bills. Mayor Edel felt they were giving them interim financing and did not wish to set this precedent. Councilmember Isaac asked if they pay interest on the back bill. Mahoney said no, they get 90 days to pay. Lynn Dunlop of the finance department said the first evidence that the City has the abilit5 to turn them off goes ou5 45 days from the due date of the bill with 10 days to pay. Mayo] Edel asked when they intend to pay this bill. Barber said they are working on it now and hope to have it paid off by next week. Mayor Edel asked when their liquor license expires. Stock said he believed it expires June 28. Mayor Edel asked Stock if they could consider private bills that Rick's owes. Stock said the Council has had a policy in the past to require upon renewals and transfers full payment of all bills owed to the City or to vendo] or merchants within the community. There have been occasions when they do not require all bills be paid, such as out of town bills. They have approved licenses with the condition that these bills be paid before issuance. Mayor Edel asked if they would be out of busi- ness if they did not approve the license tonight. Ferguson said they could not serve alcohol. Councilmember Isaac moved to renew their license conditioned upon payment of the City electric bill and all other bills, there was no second, motion died. Stock explained that they can renew the license, send it to the state and hold it in the Clerk's office until the bills are paid. Dotson concurred with this. Ferguson recommende~ conditioning the approval upon payment of the City bills only. He did not feel it appro- priate to include the private bills. Stock said the vendors advise the City when their bills have not been paid. The Council then may hold a hearing for revocation or suspensloI for failure to abide by the conditions of the license. Councilmember Van Ness was hesitant to have the Council get into the bill collecting business. Ferguson said on one of the bills in question, no work was done, an estimate was presented that was unacceptable and they were billed for his time. Barber noted on another of the bills, he spent $1700 to put in new sump pumps, they broke down, he called the company and they said they could not help him and sent him a bill for $25. His bookkeeper sent him a letter of explanation but they continue to bill him. Councilmember Van Ness said this is exactly what he wants to avoid. Stock said with a transfer, they require all debts be paid, with a renewal, they require it if there is a letter presented to the Council. Ferguson suggested a mecha nlsm for disputed bills. Councilmember Van Ness moved to approve the renewal contingent upon the bill owing being paid, Councilmember Collins seconded. Mayor Edel felt the City was becoming financeers. Councilmember Michael agreed with Van Ness in becoming involved in these bills but also agreed with Mahoney that if they do not require private bills to be paid, it could create a very volatile situation. She felt they needed to decide on a firm policy. Councilmember Van Ness did not want to set the Council up as a court. He felt the best compromise was to require a license to clear up a judgment lien. Councilmember Collins felt that would be better evidence for suspensi ~n or revocation. Mayor Edel asked about the Jimmy Buffet tickets that were never refunded. Barber said he still wants to do the show and the tickets will be refunded if he does,not. Vote was taken: Councilmembers Van Ness and Collins in favor, Councilmember Isaac and Mayor Edel against, Councilmember Michael abstained. Motion denied. Councilmember Isaac moved to renew the liquor license for Rick's American Cafe contingent upon the payment of the utility bills and all reasonable proven private bills, Councilmem- ber Van Ness seconded. All in favor, motion approved. Councilmember Michael abstained. Stock asked the Council to authorize him to pursue annexation of a triangle of property necessary to the construction of the water plant employee housing. Councilmember Michael moved to allow Ron Stock to pursue the County agreeing to annex the portion of property under discussion, Councilmember Van Ness seconded. All in favor, motion approved. Councilmember Isaac moved to adjourn the meeting, Councilmember Collins seconded. All in favor, motion approved. Meeting adjourned at 7:20 PM. Sheryl $~men, Deputy City Clerk t/