HomeMy WebLinkAboutminutes.council.19680328S
Public Hearing 'Aspen City Council March 28~ 1968
Me~ting was called to order at 3:45 p.m. with Councilmen Bergman, Benninghoff, Clymer
Administrator Wurl and Attorney "Tam" Scott.
Liquor violation
Discussed Attorney Scott running the hearing due to Mayor Barnard's absence.
Hearing "Pub"
Council agreed to have Attorney Scott run the hearing.
Also present, Donald Swales, owner of the Pub and represented by Attorney William
Clark.
Attorney Clark and Mr. Swales had no objection to Attorney Scott running the hearing.
Hearing called on 4 alledged violations of the Wheeler Public House.
Attorney Scott - Lorraine, I think you have a recorder going, don't you?
City Clerk ~ Yes
Attorney Scott - The participants should be advised that everything that comes forth
in this hearing will be a matter of record on tape which will be in the custody of the
Clerk of the City and if you have an questions about that, I think you should make that
right now. Make your objections to the way the City is tr~ing to provide or keep a
record, make them now, so we don't have to hassle about that later. That is the way
it will be done, so that if you ever want to have the tapes they are in the custody of
the City Clerk, and usually she makes her version of a verbatim transcription of the
proceedings by playing tapes back out loud with a foot pedal, making a complete record
of the proceedings. Can be transcribed that way by her or conceivably by yourselves
under the proper circumstances.
Attorney Clark - We have no objection to the hearing being recorded, i~ fact, we approve
of it. If a~ter the hearing we request a full copy of the transcript, it will be
agreeable.
754 '
Public Hearing Aspen City Council March 28, 1968
Liquor Violation
Attorney Scott - I think that is agreeable from the standpoint of the City. It might Hearing "Pub"
go without saying, but I will mention it for the record that this hearing is being held
by the City Council pursuant to Regulation No. 21 of the Regulations of the Colorado
State Liquor Code, it prescribed for the holding of the hearing by local licensing
authorities. Whenever a written complaint or complaints are brought to their attantion
which in their estimation shows that there is probable cause to believe that any given
licensee has violated any of the laws, rules or regulations, under the State Liquor
Code and further that the procedures are very loosely and generally governed by certain
things contained within that Same regulation as far as ground rules amd Concerned. Does
anyone have any question about that part of this hearing. Chief, I think you are advised
as far as the witnesses for the City, would you like to call the first witness; I think
the first alleged violation of a regulation as pointed out to me occured on'September
10, 1967. Just for the record let the record shOw that I have taken the liberty of
serving copies of the various written complaints which r~at~ to the enumerated alledged
violations and show cause letter to or on th~ licensee, Mr. Swales to his Attorney
William Clark just prior to this hearing. Chief, would you call your first witness to
testify as to the circumstances concerning an alleged violation of Regulation No. 19B
under the rules and regulations of the State Licensing Authority; Call your first
witness and I think he should be sworn and possibly take a seat there and simply give a
narrative testimony within the realms of keeping his testimony to the pertinent facts,
not testify to heresay. Explain actually what he knoWs what he did in connection with'
his investigation of this alleged viOlation.
Chief Scott - Mr. Scott and members of the Council. In that case, sited under that date,
the witness would be Officer Holmbeek.
Attorney Scott - Officer Holmbeck why don't you take a Seat there and
Chief Scott - With your permission, I will hand him a reporduced copy of his report on
that incident.
No objection
(Officer Holmbeck sworn in by the City Clerk)
Attorney Scott - Officer, If you would like to review your notes, let the records show
that these are the same notes which are contained in the violation written report which
all participants have copies of. Let me say one thing further for the benefit of the
Council. If you have any questions after the Officers have given their testimony on these
alleged violations. I think it would be more orderly if you would wait until they are
finished or almost finished before you asked your questions.
(Officer Holmbeck reviewed report)
Attorney Scott - Go ahead Officer Holmbeck, I don't think it is necessary to follow
court room procedure with questions and answers. Give your testimony in a narrative
fashion, try to explain what you know of this situation, that would be the best way to
handle it.
Officer Holmbeck - Aspen Police Department - This incident is an incident of assult and
battery. It happened ob 10, September, 1967 at approximately 9:00 p.m. Myself and anothe
Officer were on patrol in the City area and we were approximately at the 400 block of
East Hyman when a passerby or I should say a pedestrian ran up to us and said, "there
has been a fight at the pub". So Officer Gordier and myself immediately wentto the Pub
and went downstairs and looked around and asked some questions about a fight. Nobddy
'knew anything about any fight there. We couldn't get any information. We went upstairs
Attorney Scott - Maybe it would be better if I interjected a question or two right here.
Who did you visit with as to something to do with the action at the Pub, who was on
duty, can you explain that?
Officer Holmbeck - I don't remember who the door checker was at that time, but it was the
door checker who I contacted. I can't remember at this time who it was. I wouldn't
venture to say. I imagine they have had quite a few door checkers or change in personnel
since September.
Attorney Scott - When you arrived at the Pub, was there any distrubance of any sort
relating to this complaint going on at that time?
Officer Holmbeck - No disturbance, just crowded.
Attorney Scott - Did you try and find the Manager, Mr. Keating, or the licensee Mr.
Swales? Did you visit with them?
Officer Holmbeck - I don't remember at that time, I think Mr. Keating was out at that
time as a recollect. Like I said, I;~only talked to the door checker at that time and I
was interested in the disturbance.
755
Public Hearing Aspen City Council March 28, 1968
Liquor Violatio~ Attorney Scott - What else happened as far as your investigation of the situation.
Hearing "Pub" What did it consist of?
Officer H01mbeck - Well we went back upstairs, on the investigation the pub, we
of
left
after we found that there was no disturbance and nobody knew anything of the disturbance
I went back Upstiars, Officer Gordier and I, and we were on the street, oh not more
than 2 or 3 minutes, when another witness to the fight there was a witness Mimi
Darley and I believe there was another girl with her at that time. The girl who was
with her stated sure there was a
Attorney Scott - Now wait a miniute~ I think that if the Police DePartment feels that
Mimi Darley or a f~iend of hers have something to testify to with respect to this,
they ought to be here to testify. I don't think you should testify under oath at a
hearing of this sort which is quasi-judicial what they said happened at the Pub.
Officer Holmbeck - Well I am not going to testify as to anything that happened in the
Pub, I am just going to relate the information that they gave to us which was that one
of the persons that was in the Pub fight had to go to the Aspen Valley Hospital. That
is the extent of their full statements to me.
Attorney Scott - And what else happened as far as your investigatiQn is concerned.
Officer Holmbeck - Officer Gordier and I went to the Aspen Valley Hospital and we
contacted there Mr. Jakobsson and he was quite beaten up with face lacerations and
he was in pretty bad shpae all the way around. I talked to him and I talked to his
wife and I asked his wife if she would go back to the Pub with me and try and identiy
the person that struck him. We went back to the Pub and at that time she identified
the man as a fellow named Storey. And at that time we placed Mr. Storey under arrest
and booked him for assult Charges.
Attorney Scott Is that the extent of your testimony as to the investigation of this
assult case.
Officer Holmbeck - Except the fact that we went down there the first time and couldn't
get any information whatsoever.
Attorney Scott - From the door checker, is that what you. mean?
Of~ficer HolmbeCk - Well people in the bar and the door checker at that time.
Attorney Scott ~ Did you try to talk to members of the crowd or patrons.
Officer Holmbeck - Yes I did.
Attorney Scott - Do any of the' members of the Council have any questions to ask Officer
Holmbeck.
Councilman Benninghoff - I would like to ask on your second visit to the Pub did you
then try to interrogate the management or visit with the management at all or talk to
them in regard to this incident as to whether it had actuall'y occured in the Pub and not
someplace else.
Officer Holmbeck - I did talk to and you can correct me if I am wrong, I did talk to
Bill Keating later on.
Councilman Benninghoff - On your second visit?
Officer Holmbeck - That is right. He did come back to the Pub. He was not in the first
time we went down.
Councilman Benninghoff - When you went back the second time then did you talk to hd~n?
Officer Holmbeck'- That is correct.
councilman Clymer - I have one question to ask. Would like to know did you establish
whether or not the fight did occur in the establishement or on the street.
Officer Holmbeck - Yes I did, by the Witness on the street. There was a fight in the Pu~.
Councilman Clymer- What about the man who you arrested.
Officer Holmbeck - Well they were across they were down in the Pub across the table romii
each other. They had a few words and if you want to know the details of the fight.
Councilman Clymer - Ail I Wanted to know was it inside or outside.
756
Public Hearing Aspen City Council March 28, 1968
Attorney Clark - Well Councilman Clymer's question was whether or not Officer Holmbeck Liquor Violation
determined whether the fight took place inside or outside the Pub. And you have Hearing "Pub,'
already gone into the area of Officer Holmbeck testifying to heresay evidence. It seem~
to me that what you are just now about to say clearly is heresay testimony. He has no ~-~
personal, knowledge whether or not the fight took place inside o~outside. As you
suggested earlier, one or more of the witnesses should have been called.
Attorney Scott - I think and as long as I am running the hearing, we might contain
some form of consistency. If there is some testimony it is up to the Police Department
to have some of these witnesses here. I think you can make your own inferences but
lets be consistent on giving testimony on what the other girl siad. I will uphold
Mr. Clark's objection.
Councilman Benninghoff - May I ask Mr. Holmbeck this question. When you talked to Mr.
Keat±ng, you did say that you did talk to Mr. Keating?
Officer Holmbeck - Yes
Councilman Benninghoff - Did Mr. Keating acknowledge that a disturbance had taken place=
in the Pub? Did ~e acknowledge to you that a disturbance hfid taken place in the Pub
in which the man you had arrested had been injured?
Officer Holmbeck - Yes he did.
Councilman Benninghoff - Is this in the report that this took place in the Pub?
Officer Holmbeck - That is right.
Attorney Scott - Officer, did Mr. Keating, Mr. Swales or anybody who works for them
call in the Police Department o~ anybody connected with the Police Department and make
a report of this disturbance situation or not.
Officer Holmbeck - No, they didn't.
Attorney Scott - Any further questions from Council. (no comments) In that case Mr.
Swales?
Mr. Swales - Going back to September to reconstruct what happened. At the time Bill
Keating said something to me and told me all about it the next day when I saw him.
And quoting and this is apparently what took place. They were sitting in a booth,
not a table and nobody kn~w that a fight was going on at all until Mr. Stein
Jakobsson got out of the booth with a bloody face. That is the first we knew about
it. First anybody knew about it was when he got up and left and that was the extent of
the fight. It was in a booth across the table from each other. If you can imagine
such a thing, that was the entire extent of the fight. Actually nobody paid that much
attention except that he was hurt. His wife took him out and then a day or two later
we were talking to the policeman and he said that whenver their is bodily injury
be sure and call the Police.
Attorney Scott - Was Mr. Keating on the premises when this occured?
Mr. Swales - Apparently nobody knew anything about this until they were leaving and we
were told by the Police Department that in the future if there is bodily injury to make
a report and we have followed this ever since.
Attorney Scott - Do any membersof the Coucil have any questions of Mr. Swales or do
you understand it.
(No further questions)
Attorney Scott - Next incident which according to my information gave rise to an
complaint on November 8, 1967. Chief' Scott according to your reports who should
testify from the Police Department as to that set of circumstances.
Chief Scott - Police Chief - On this report the Officers are Ritchey and Zimmer.
Zimmer is here.
(Zimmer was handed a copy of the report and took his seat vacated by Officer Holmbeck)
(Officer Zimmer was sworn in by the City Clerk)
(Officer Zimmer reviewed report)
757
Liquor Violatio~ Attorney Scott - Go ahead Officer Zimmer and relate to the best of your~ability as to
Hearing "Pub" the alleged violation of Regulationl9B which occurred November 8, 1967.
Officer Zimmer - As I recall on this incident of Nobember the 8th, it was in the early
morning hOurs we were called to the Pub in regards to a disturbance. Upon arrival,
contacted Mr. Keating and learned that there were three hunters drinking in the
establishment that were intoxicated or had been drinking.
Attorney Scott - Officer, who called you?
Officer Zimmer - It was by the car radio. I don't recall the dispatcher at the time.
It was by the Managerof the Pub that we were called there. It was related that their
was an incident that involved a Mr. Homer Cox who was accused by the hunters to
have taken $20.00 from them and their was some pushing and shoving and I guess things
quieted down one time and then it broke out again, and this was when we were called.
We were called on the secOnd time. At that time the parties had left the establishment
and our investigation just later revealed that the 3 gentlemen were in the Pub and they
had been drinking. They werenot on their ear as I would calssify them, but they had
been drinking, At that time there were no charges pressed by anyone present so that
more or less ended that incident. We just made a Contact on the parties and they
were not interested in pressing charges n~ one lese was~interested. We just made a
routine check on the parties and that were involved in it.
Attorney Scott - You filed a written report, didn't you? A written report of the
investigation.
Officer Zimmer - Yes
Attorney ScOft - Is that the extent of your testimony Officer.
Officer Zimmer - Yes there is only one other thing that I might add. I have been on
the night shift now for most of the winter and I usually make a routine inspection of
all of the bars and as far as the general running of the Pub the extent of fights and
things like that and which bar had more drunks. The only thing I would like to add
is upon most of my inspections in fact almost all my inspections, they always have
a door man on the door that does check I.D.'s and is supposed to help them in regards
to disturbances. And in regards to disturbances, I know that in the past there have
been instances where it is usUally the next day that we hear of any disturbance that
have taken place in the Pub. So there is no reports in regards to who wasinvolVed
or what actually happened. Its minor scuffles and things that have taken place. But
I can't give you any specifi~s on any of those.
Attorney Scott - Are there any of~ the members of the Council who have any questions
tO ask of Officer Zi~m~er about this incident or I think in the scope of this
hearing or any incidences he may know about that you knowabout?
Attorney Clark - Do I understand that the report of November 8, 1967 about which you
just testified, the complaining witness, that is the person who called the police,
was the Manager of the Pub - Mr. Keating?
Officer Zimmer - Yes it was or one of his employees.
Attorney Clark - They asked for the assitance of the Police Department?
Officer Zimmer - Yes they did.
Attorney Scott - Mr. Swales or Mr. Clark do you want to say anything about this
Particular incident.
Mr. Swales - Well we were just following as that report in September to call the Police.!i
Attorney ScOtt- Does any members of the Council have any questions to aSk of any of
the licensee or representatives about this particular incident. (No comments) Next
witness Chief, November 10, 1967.
Chief Scott - That report shows that Officer Holmbeck and Wall of whom both are here
submitted that report.
Attorney Sco-tt - Officer Holmbeck is already under oath. (City. Clerk swore in Officer
Wall)
Officers Wall and Holmbeck reviewed a copy of the repor~
Attorney Scott - Go ahe~dl)Officer and give your version of what happened on November
1967 at the Public House.
758
Officer Wall - This was on the evening of November 10th at approximately 9:30 p.m. Liquor Violation
Officer Holmbeck and myself received a call while on routine patrol. We received a Hearing "pub"
call that there was a fight at the Pub. -
Attorney Scott ~ Officer Wall why don't you go ahead and explain how it came in with
respect as to who made the call and how did you ree~ve it.
Officer Wall - I don't know for sure. When we arrived at the Pub, we contacted Bill
Keating who was outside the Pub. We were still in the patrol car at the time. The
reason we didn't get out of the patrol car was because there were several people
around and thought possibly the fight was outside. We had just driven up to the
intersection at that time Mr. Keating stated that there had been a fight. He pointed
out approximately 5 people that were going up the street up Mill~Stfeet toward the
mountain and he said that there had been a fight down at the Pub and.that these
people had attempted to enter the Pub and were told that they were not wanted and
this was how the fith started. There were three people who ran away, the other two
we contacted up by the Village Pantry by the alley. Both of them had been injured
slightly, Injured in the way that you would in a fight, bruises and what have you.
These people were found to be William Ray Early and LarryGeorge Bank~. These people
were. well we took these individuals to the hospital and fromwhat I could understand
after talking to the door checker who was Thomas Cernobouz, after talking to him,
he stated that he had ahold of this Early fellow but didn't strike him and when he was
~ld to leave that these-people left but there was a fight in between. This was a case
and I know that it dosen't sound very clear, but this is about all the information
we could contain. That there had been a fight down there and that we.couldn't exactly
find out who started the fight or really much more pertinent information. Just that
there was a fight, people injured and we took them to the hospital and they were
released and no charges were pressed. We did receive a call from the Pub. That is
all I have to say, its not re~ ly clear cut but that is all we had to go on.
Attorney Scott ~ I know one thing Officers, in your report there is~r.eference made to
a smoke bomb that was set off.
Officer Wall - This was a separate incident later on that night.
Attorney Scott - Would you explain that as~long as you are going into the whole cir-
cumstances.
Officer Wall - We were driving by the Pub which was right after we had released the
two people that we had taken to the hospital, approximately one hour later when
everyone was exiting in a great hurry ~rom the Pub. We wanted to know what was the
problem. Upon investigation we found a smoke bomb had beenplaced in the southeast
window I believe down below. I would imagine they had the fans on .in the Pub and
consequently the air was coming in this window. It was harmless but irritating and
this is why the people were leaving the Pub. We were unable to find out who did it,
where the bomb was obtained. We did pick up the smoke bomb, it was in a canister,
regular military canister. There was no damages on this, nobody had any idea on how
it happened.
Attorney Scott - Officer Holmbeck do you have anything to testify to?
Officer Holmbeck - I have a little addition here. It was determined upon investigation
that this Early fellow who was hurt and was taken to the hospital was ~hurt exiting
the front door of the Pub by b~ing purshed into the sharp stones at the gangway
going upstairs.
Attorney Scott - Any questions by any of the members of the Council2
Councilman Benninghoff - Did this Mr. Early know who pushed him or could he identify
the person.
Officer Holmbeck - He identified the person as a couple of by standers that were
around the door at the time when they were told to exit and they had their discussion.
Attorney Scott - Any further questions from Council. (No further questions)
Attorney Clark - I would like to have Mr. Swales sworn in.
Attorney Scott - Mr. Swales~can be sworn when he puts on his testimony. Don't you
think that would be proper
Attorney Clark - I think the statements that have been made and witi continue to
make and are part of the record and I think he can verify them if he is sworn.
Attorney Scott - City Clerk will you swear in Mr. Swales. (Mr. Swales was sowrn in
by the City Clerk)
759
Public Hearing Aspen City Council March 28, 1968
Liquor Violatio~ Mr. Swales - This was two nights later, Bill couldn't wait to tell me what had happened.
Hearing "Pub" We are daLmL~ed if we let them in and we are dammed if we kick themout. What happened
was one or two people came down with glasses from another bar. We were confused on that
basis alone. They gave the door man quite a hard time and the door man said he wasn't
going to let them in. They did leave and went back to wherever bar they were in and
got thmee more.of their buddies came down and tried to force their way in at that time.
The pushing was done by Mr. Early or whatever his name is, he tried to get into the
Pub. This all took place outside on the steps. When Mr. Cernobouz was pushed, shoved
or kicked naturally any patrons that are close came to his assistance. And they were
literally pushed out and up the stairway to the street.
Attorney Scott - Does Council have anything to ask Mr. Swales?
Mr. Swales ~ I would like to point out again we contacted the Police.
(No further comments)
Attorney Scott - The next one is alleged to have occurred on January 21, 1968.
(John C. P~lipott was sworn in by the City Clerk)
Attorney Scott - John why don't you identify yourself, name, occupation and place of
residence to start with.
Mr. Philp0tt -John C. Philpott, Enforcement Officer, State Liquor Control Division,
State of Colorado, Ireside in Garfield Coumty, State of Colorado. This alleged
incident occured at the Wheeler Opera House Theatre Bar on January 21, 1968, at
approximately 12950 ~.M. This is a State License bar h~lding License No. C-1784 as of
1967. This is a public bar. Two State Officers and myself entered the.front door
at approximately 12:50 A.M. in the morning' and walked right into a fight. There were
approximately 10 to 12 patrons fighting over in the corner tipping chairs and tables.
At that time the 3 Officers did not take any action, stood back observed what was going
on fight lasted approximately 3 minutes. It was learned at this time that the bar.tender
Mr. McCucthon, as I correct, and the manager part owner William Kearing were involved
in the fracas.. When the fight broke up, the parties left, Mr. McCuchhon went behind
the bmr. I was talking to him and I asked him if the poli~e hRd been called, he sta~ed
that they hadn't. I asked him why not, he said that he didn't feel it was necessary.
At that time Mr. KeaRng came up to where we were standing at the bar and in my opinion
and the other officers he was obviously under the influence of alcohol. I couldn't
get the point across to him that a violation had been committed, he kept going off on
other range.htS. He was seated at the end of the bar, McCucthon was directly behind
the bar. At this time Mr. Keating over turned a drink he was drinking. Mr. McCucthon
stated okay that is all for you, you are cut off. At this time I didn'.t want to
interrogmte or interview Mr. Keating further. I felt that the violation had been
committed and I warnedhim a report was written up and a copy sent to the Denver Office.
This is a report in regards to violation Regulation No. 19B.
Attorney Scott - Did you send a copy of the report or warning to the establishment.
Mr. Philpott - No, we don't do that.
A~torney Scott-Did you do anything else Mr. Philpott as far as investigation is con-
cerned.
Mr. Philpott - Well I advised both Mr. Keating and the bartender Mr. McCucthon that if a
fight takes place in there it is not their business to get out and mix in it but to call
the Police.
Attorney Scott - Is there anything else you would like to say on this.
Mr. Philpott - I have nothing to add.
Attorney Scott - Any questions from Council.
Councilman Clymer - Did you say that.Mr. Kea~ng had a drink or, was drinking?
Mr. Philpott -He was drinking when I
Councilman Clymer - Do you have reason to believe it was an alcoholic beverage or mixed
drink.
76O
Public Hearing Aspen City Council March 28, 1968
Mr. Philpott - I did not confiscate the drink, did not test it, no, but I would assume Liquor Violation
it was a mixed drink. Hearing "Pub"
Councilman Clymer - In your evidence you stated he had been drinking.
Mr. Philpott - It was obvious he was under the influence in my opinion.
Attorney Scott - What were the outward~affects that made you have ~hatqopi~ion, Mr.
Philpott.
Mr. Philpott - His manner of speech, his actions, he couldn't comprehend what I was
trying to tell him. He made a mistake when he tried to rectify the fight by the fact
that they had just had one up at the Red Onion a week or few days prior to that. He
couldn't understand why any action~should be taken against him. Mr. McCucthon tried
to calm him down several times, he turned his drink over and Mr. McCucthon told him
that s all your cut off.
Attorney Scott - Any other questions from Council as to
Councilman Benninghoff - At any time did they offer to call the Police while you
were there.
Mr. Philpott - No, they didn't.
Attorney Clark - Philpott, while you were there, in response to BenniBghoff's question
about whether or not the police arrived while you were there, had the fight ceased
while you were there.
Mr. Philpott - Yes
Attorney Clark - Or did you leave before the fight ceased.
Mr. Philpott - No.
Attorney Clark - You stated in your report that both Mr. Keating and Mr. McCucthon
were involved in the fight. Would you explain in alittle more detail how they
were involved? ~-
Mr. Philpott - Well they were right in the middle of it, from what we observed.
Attorney Clark - Would you say that they were procrastinates in the fight.
Mr. Philpott - We were not there when it atarted. I couldn't say what started the
fight. I did see Mr. McCucthon throw several punches. Mr. Kea~ing also. Like I
said there were mbout 10 or 12 patrons involved in this.
Attorney Clar~k - Do you have an opinion as to whether or not they were endeavoring
t~ stop the fight.
Mr. Philpott - I have no opinion on that, no.
Attorney Clark - In regard to your testimony, Mr. Kearing was under the influence of
alcohol, how long were you in the premises.
Mr. Philpott - About 10 minutes.
Attorney Clark - How many drinks did you see him take.
Mr. Philpott -~Saw the one drink.
Attorney Clark - Did you see him drink it.
Mr. Philpott - Yes.
Attorney Clark - How much did you see him drink.
Mr. Philpott - Oh, I don't know, say approximately he had a glass that was 1/2 full
when it was tipped over.
Attorney Clark - What kind of drink was it.
Mr. Philpott - I don't know.
761
Public Hearing Aspen City Council March 28, 1968
Liquor Violatio~ Attorney Clark - Then you don't know what was in the glass at all.
Hearing "Pub" Mr. Philpott - No, I don't. Attorney Clark - It could have been 7-Up.
~,~ Mr. Philpott - It didn't appear to be 7-Up.
~ttorney Clark - But it could have been.
Mr. Philpott - I suppose it could have been, I don't know what was in the drink. I
didn't touch it, or confiscate the drink.
Attorney Clark - Have you known Mr. Keating for any period of time.
Mr. Philpott - Could you elaborate on that a little bit.
Attorney Clmrk - Well how long have you known him, who he is and what capacity.
Mr. Philpott - Oh, I don't recall. Since they have been licensed as a bar.
Attorney ~Clark - Have you ever observed him under the influence of alcohol on the premise
before.
Mr. Philpott - Not on those premises, no.
Attorney Clark - Have you ever observed Mr. Keating to have what might be called a hot
temper.
Mr. Philpott - I don't know Mr. Keating that Well.
Attorney Clark - What I am trying to get at is the possibility that that drink might have
been, that glass might have been knocked off the bar by something other than the
person under the influence of alcohol.
Mr. Philpott - Well, Sir, I was sitting right adjacent to him and he was leaning on the
bar and he fell against it and tipped the glass over. That was when Mr. McCuthon cut
him off.
Attorney Clark - We would like to have Mr. McCucthon sworn in.
(Mr. McCucthon was sworn in by the City Clerk)
Attorney Clark - Mr. McCucthon were you employed at the Wheeler Public House on the
night of January 21, 19687
Mr. McCucthon - Yes, I was
Attorney Clark - How were you employed
Mr. McCucthon- Bartender
Attorney Clark - And were you present at the time officers or Officer Philpott entered
the premises.
Mr. McCucthon - Yes I was
Attorney Clark - Was there a disturbance of some kind gOing on at that time.
Mr. McCucthon - Yes there was
Attorney Clark - Would you describe the nature of that disturbance.
Mr. McCucthon - We had a boy come by who accused the door checker of stealing his coat.
The .door checker is where the coats are, and they started a ruckus and we was throwing
him out. There were 3 of us throwing one person out.
Attorney Clark - Three of you throwing one person out. So there were ~ persons involved~.~
Mr. McCucthon - Yes
Attorney Clark - Were there fists being swung.
Mr. McCucthon - That I can't real ly say. At the end of the fight there .was one guy whic~
the door checker had his arm around one guy and I had him by the hea~ of his hair and
pulled him through the door.
762
Public Hearing Aspen City COuncil March 28~ 1968
Attorney Clark - How &ong would you say this took. Luquor Violation
Hearing"Pub"
Mr. McCucthon ~ I would say 3 minutes. Its.along time for a fight for me. _
Attorney Clark - Was Mr. Keating involved in this.
Mr. McCucthon - That I can't really state for sure. ~
Attorney Clark - Do you have an opinion as to whether or not Mr. Keating was under the
influence of alcohol at the time this occured.
Mr. McCucthon - He was drinking but he's got a lot more capacity than what he had that
night.
Attorney Clark - It is your opinion then that he was not under the influence of alcohol.
Mr. McCucthon - I don't believe the statement was that you are cut off, I think I was
trying to calm him down'because he was talking to Mr. Philpott and I think I said
thats enough. I told him to cut it off Billy, thats enough when he was talking toyou.
When you were talking about the Red Onion.
Attorney Clark - We have no further questions.
Attorney Scott - Do you have any other testimony or questions or explanations to m~ke
in connection with this alleged incident.
Mr. Swales - I was given no notification, those officers apparently warned. Would you
explain what the verbal warning was about.
Mr. Philpott - Well I advised Mr. McCucthon and Mr. Keating at the time that this was
a violation of Regulation 19, fighting on the premises. Also a violtion of the law.
I felt this was applicable~ toI the condition of Mr. Keating, however, I did not list
that with the violation~
Mr. Swales - You warned us not to have any more fights in the bar.
Mr. Philpott - Well I warned them it was a violation having a fight in the bar. Also
warned them that anytime in the future when~a fight occured, not to get involved in the
fight themselves, but to call the Police.
Mr. Swales I might explain. I asked Bill if he had called the Police and he said no
there were no bodily injuries.
Mr. Philpott - There was obviously bodily injuries.
Mr. Swales - The fight was over before you left.
Mr. Philpott - The fight was over, yes, before we left.
Councilman Benninghoff - Mr. Philpott you said in opening that two Officers accompanied
you on your visit that evening.
Mr. Philpott - That is correct.
Councilman Benninghoff - They witnessed the whole event, did they?
Mr. Philpott - Yes
Councilman Benninghoff - Who were these Officers?
Mr. Philpott - Senior Officer MeHolm from Boulder and Officer Ferrel from Rangley.
Councilman Benninghoff - Did ~hey me~wethis report which you filed, make any additions
or suggestions. -~ ~
Mr. Philpott - I don't ghink they did, no.
Councilman Benninghoff - They could collaborate what you just said.
Mr. Philpott - Yes, Sir. --
Councilman Benninghoff - Would like to have Philpott re-affirm again, did you feel that
he was definately under the influence of alcohol.
763
Liquor Violatio~ Mr. Philpott - In my opinion, I do.
Hearing "Pub"
~ Attorney Scott - By he, you mean William Keating.
Councilman Bergman - Yes
Councilman Benninghoff - The other officers who accompanied you, they were aware of what
you saw as well as you related here.
Mr. Philpott - Now Senior Officer Holms was with me up at the bar when we talked to Mr.
McCucthon and Mr. Keating.
Councilman Benninghoff - It is still your opinion that there were more than just the
three gentlemen plus the one that they were trying to reject, more than 4.
Mr. Philpott - Yes
Attorney Clark - I would like to ask Mr. McCucthon one more question. On this night
Mr. McCucthon was Mr. Kearing on duty as an employee of the Pub.
Mr. McCucthon - No he wasn't. I was working by myself, I was the only bartender.
Attorney Scott - Is there anything further of Mr. Swales or his representatives from
Council. Mr. Philpott do you have anything further to add different of what you said.
Mr. Philpott - No, I have nothing further to add on this incident.
Attorney Scott - Do you have anything further to any other incident that may not have
been enumerated in this show cause letter.
Mr. Philpott- I would have to check my letter. I think that that is all there is.
Attorney Scott - In that case that is all there is with respect to January 21, 1968.
Council, I think Chief Scott has a statement that relates to a type of problem that
apparently was going on in connection with this, and perhaps other incidents at the
Pub. It does not relate particularly to this incident but I think I will let him
F~ make a short statement. I think he should be. permitted to make a short statement.
Attorney Clark - Let the record show we object to Chief Scott making a statement on
anything that does not relate to the charges of this hearing, not knowing whether it is
pro orcon.
Attorney Scott - You go right ahead and make your statement. I believe it relates to
this hearing in general and I will permit you Chief Scott to go ahead and make your
statemen.t.
Chief Sco~t - Mr. Scott and members of the Council. For the record I am Chief Scott
of the Aspen Police Department and testimony was, mentioned, a remark was mentioned
in this testimony I believe by Mr. Swales about certain elements that affect the
calling of the Policein the case of an incident. And these remarks of mind are made
to help him and other interested licensees that may be here. This may seem a little
out of tke place, but I do feel that it. is important to all those concerned that the
remark that not calling the Police if there was not bodily injury. You brought that
out Mr. Swales in your testimony. I think this is erroneous information or a mis-
understanding because incidents can occur where there is quite a disturbance and a
threat of bodily injury which at any moment could become serious, I mean as to injury.
Therefore, I am sure that for the protection of the licensee, they must not get the
idea that they have to wait for someone to be injured to eall the Police. The purpose
is to quell the disturbance and to keep people from being injured. So I am sure there
is no legal line drawn there between a minor disturbance where the Police shou~n't
be called or a bodily injury where they should be called. Lets say that there is a
disturbance, then they should be called.
Attorney Scott - Mr. Swales do you have any questions about that.
Mr. Swales - There is a big gray area here. In other words, if it is a pushing match,
two people pushing each other, you could say that we just had a disturbance. How does
there have to be punchs thrown, two punch$ both miss and both sit down and everything
is fine, its over. How far does every bar in this 'town go with every disturbance and ho~
bad a disturbance does it have to be. If it is quailed by the bartender and in this
~' case which was quailed by Mr. Keating Mr. McCucthon, you just say
and
do
call
and
well
we just had a fight, thought you would just lfke to know.
764
Attorney Scott - I think a point has been made that there is a Liquor Violation
Hearing "Pub"
Mr. Swales - And when we do call the Police, it is thrown back at us in cases such
as this.
Councilman Clymer - Not necessarily.
Attorney Scott - I think that is all we need to hear on this. The next violation or
alleged violation concerns a violation under Section 6-1-25 of the Municipal Code of
Aspen which allegedly occurred on the 3rd day of March, 1968. I believe Officer
Holmbeck investigated that.
(Officer Holmbeck reviewed a copy of the report)
Attorney Scott - I would like to point out to the Council that this alleged violation
is not a violation of any State law or Regulation under the State Licensing Authority
but obviously this alleged violation of the Municipal Code Provision. It is my
opinion as far as this hearing is concerned it is proper for Council to have a chance
to find out the circumstances surrounding this violation nontheless. It is Section
6-1-25 of the Code which relates to obscene - displaying of obscene signs. The
Municipal Code, it is not under the State Liquor Code it~is under City Ordinance.
Mr. Philpott - It is also under the State Liquor Code.
Attorney Scott - Well then I stand corrected.
Mr. Philpott - Regulation No. 19B.
Attorney Scott - It was brought to the attention of the Police by City Ordinance. Office
Holmbeck you may go ahead, you are already under oath.
Officer Holmbeck - This incident happened on the 3rd day of March, 1968 at 7:10 p.m.
I was on foot patrol routine through the bars in the downtown area just checking out
the bars. I went into the Pub at that time and on my inspection of the Pub I l~oked
at ~he cash register, that would be the northwest corner of the building and this sign
right here was displayed right on top of the cash register~ I asked the bartender if
he would give me the sign, which he did.
AttOrney Scott m Who was the bartender Officer.
Officer Holmbeck - I don't have that in my report but Carla Wind was present at the time
She is a waitress there at the time I asked for the sign. I took this to the Police
Department and marked it into evidence and wrote up a report.
Attorney Scott - Has Council seen the sign which gave rise to this complaint. I think
you should look at the sign.
(Sign was passed around Council table)
Attorney Clark - May we see the sign.
Attorney Scott - Yes. Does Council have any questions about this situation.
Councilman Bergman - First of all could this be seen by the pUblic.
Officer Holmbeck - It was right in the bars view.
Councilman Bergman - Could it be seen by people sitting there.
Attorney Scott - Would you explain where the sign was located.
Officer Holmbeck - I said in the northwest corner of the bar. It was the bar cash
register. I guess the cash register can be used for the food too, I don't know.
Councilman Bergman - I see there is some writing on the other side of it too. Which
side was in view.
Officer Holmbeck - The right side.
Councilman Bergman - With the correct spelling. ~-~.
Councilman Benn~nghoff - Would you say that it was predominately displayed in view of
anyone sitting at the bar. Was it in plain view of anyone stepping up to the bar or
cash register. Could it be seen by other places in the room as well.
Officer Holmbeck - Not every place, anybody who moved around could see it.
765
Aspen City Council March 28, 1968
Liquor Violation Councilman Benninghoff - You would say that it was on public view.
Hearing "Pub"
~ Officer Holmbeck - That ~ correct.
Councilman Clymer - Did the bartender know that the sign was on the cash register.
Officer Holmbeck - Yes he did.
Councilman Clymer - The manager or who was in charge knew that that sign was there.
officer Holmbeck - Yes, he stated to me so that he knew it.
Councilman Benninghoff - Have you seen that sign there prior to this patrol or was this
the first time you observed it.
Officer Holmbeck - I went in there earlier and I did notice the sign but I wanted to make
sure there was an ordinance covering that and then I went back on patrol and picked it
up later.
Councilman Benninghoff - This was the same evening.
Officer Holmbeck - Yes
Councilman Clymer - How far about were these visits.
Officer Holmbeck - A matter of 15 minutes.
Attorney Scott - Does Co,uneil have any further questions, Mr, Swales any statements or
explanations or your representatives. ~
Mr. Swales - Well I inquired about this and how the sign got there. It was given to
him by his. employees; as a present.
Attorney Scott - Given to who.
Mr, Swales ~ To Bill Keating who was working behind the bar and handed to him by his
employees saying here Bill here is something to take home with you. Bill put it on
the cash register so that when he checked out that night he would take it with him
and he wouldn't forget. When he checked out he did not take it with. him. That was a
mistake. Well the first mistake was putting it there in the first place. Second
mistake was not taking it home with him that night when he went home. He just simply
forgot. Gary Johnson opened up the next day and this is the bartender the Officer saw,
and as an employee I don't know whether Gary just didn't use good sense to put it off
to one side when he opened up'or what but it was left up there. That is how it got
there. It wasn't takced on the wa~l, it was a careless mistake.
Councilman Benninghoff - There was only one day between the entry of the sign and its
removal,
Mr. Swales - Yes, just overnight.
Councilman Benninghoff - It was there during the course of one evening and then again
the next day until the Officer picked it up. Is that right?
Mr. Swales - We weren't open all that time.
Councilman Benninghoff - I mean during the hours when the bar was opened, that period
of time it was on display.~
Mr. Swales - Yes. I might add that Officer Holmbeck mistake where any sign on the c.ash
register could be seen from. You can see it only at the service area by someone coming
directly to the service area. Could not be seen sitting at the bar or anywhere else in
the room.
Councilman Clymer - Well it was displayed.
Mr. Philpott - During Magistrate's Court Mr. Meyer presiding, Mr. Keating under oath
made. the statement at that'time that the sign had been there for about 48 hours and he
had forgotten to tak it down.
Attorney Scott - Perhaps it would be adviseable to have Mr. Keating present some first
hand testimony or any other explanation since he is the one who is directly involved.
Perhaps I haven't applied the same rule as stringently as I should havre to the licensee
with respect to heresay evidence. Would you like to make any statements, Mr. Keating.
Explain what you know about this circumstance.
(Mr. Keating was sworn in by the City Clerk)
766
Public Hearing Aspen City Council March 28, 1968
Mr. Keating - Bill Keating - Manager of the Public House - What happened was they gave me Liquor Violation
a sign when I came into work at 6:00 o'clock on the 2nd. It was a saturday night. Pre- Hearing "Pub"
sented the sign to me as a joke, I put it up there..It was a mistake-first of all but I
did do that. I had every intention of taking ithome. I closed the bar that night and
forgot to take it home. I forgot about the sign. That evening Officer Holmbeck did
come into the establishment, saw the sign. I thought we were going to get hammered by
the dispatcher. Then you came back into the bar, asked for the sign, the bartender gave ~u
the sign. The next day the sign was gone and I didn't know anything about what had
happened. I came to work that evening.at 6::00 o'clock, no I didn't beg your pardon, I
did later on find out about it, called Mr. Holmbeck and said you want to see me. I
understand you want to see me. And he said yes I do. I had called the dispatcher and
told her that if anybody wanted to see me I would be at the bar. He came in and gave me
a subpoena. At that time I related what had happened and that was it.
Attorney Scott - What happened in Magistrates Court.
Mr. Keating - I pleaded not guilty, I was fined $250.00 which I paid.
Attorney Scott - Is that the extent of your explanation.
Mr. Keating - Yes, Sir.
Attorney Scott - Any questions
Councilman Bergman - By pleading not guilty, did you think that it was just a harmless
joke, that the sign was there. Signs like this are okay to be displayed?
Mr. Keating - Yes I did. I did not think the Sign was obscene, I presented three
dictionaries and a book to Magistrate and presented to you Officer Holmbeck which he did
not read, that described the words, what they were.
Councilman Clymer - I know Bill that you have every right in a court to plead not guilty.
I just wonder on what grounds you pleaded not guilty.
Mr. Keating - I felt the sign was not obscene. I presented dictionaries and a book
describing the Word. I don't khink they have ever defined obscene in the~Supreme Court.
Although I was wrong~, I still felt that it was not obscene.
Councilman Clymer - Realizing the word is not in the dictionary, you understand the
meaning of it ~nyway.
Mr. Keating - Yes, I presented
Councilman Clymer -It i.s a common word that everyone knows
Councilman Benninghoff - Its common usage is obscene won't you say
Mr. Keating - Yes Sir.
Mr. Swales - I think the crux of the matter is, it wasn't a deliberate display.
CoUncilman Clymer - That has no legal bearing on the case I don't think. If it were
unknown it would.
Mr. Swales - Well it certainly was unknown to me but it wasn't unknown to Bill. He was
found guilty and paid his fine. It was his mistake, it was carelessness.
Councilman Benninghoff - Ail in the spirit of good clean fun.
Mr. Swales - I don't know what you call it.
Attorney Scott - I think there is one more witness Barbara Gosh.
(Barbara Gosh sworn in by the City Clerk)
Attorney Scott - Miss Gosh would you state yonr full name and occupation.
Miss Gosh - My name is Barbar Gosh and I am a disPatcher for the Police Department.
Attorney Scott - Would you explain to Council what you know about the circumstances
of this alleged violation on the 3rd day of~ March, 1968.
Miss Gosh - Sometine before that, I don't know the date, it wasn't too much before that
date I was. in there and I saw the sign.
767
Public Hearing ~_~n_~ .~_~¥_ ~9~i_..1_ Ma~¢.h_ 28, 1968
Liquor Violatio~ Attorney Scott - Does Council have any questions to ask.
Hearing "Pub"
Councilman Benninghoff - Was that 24 hours before that date or more than 24.
Miss Gosh- It couldn't have bean more than 48.
Councilam Benninghoff - Were .there any peop~ with you.
Miss Gosh - There were but I don't think they saw the sign.
Councilman Clymer - Did you have to get up close or any particular spot in .the place
to read this sign.
Miss Gosh - Yes. I had never been up to the bar before. I was right in front of the
register.
Councilman Clymer - Would it be possible that you would be paying the check or something
at the register.
Miss Gos~ - Yes
Attorney Scott - Any further questions
Attorney Clark - May I ask you to state again when it was you went into the Public House
you saw the sign.
Miss Gosh~- I am not sure. It wasn't more than 2 days before removal of the sign that
I was in there.
Attorney Clark - Do you know the date in which they removed the sign.
Miss Gosh - No I don't
Attorney Clark - Mr. Scott and Councilmen I respectfully request this witnesses testzmon~!
be disregarded on the basis that it lacks foundation.
Attorney Scott - You may make that request, I don't think it is n~cessary for me to
make a ruling on it. I think Councilmen understand what her testimony is and they can
decide.
Councilman Bergman -~The fact still remains she R~ddsee the sign all right, it was in
view.
Attorney Clark - But she dosen't know when she saw the sign and Councils question was
when did she see the sign. I think they were trying to establish some that the sign
had been there for a longer time than what Mr. Keating has testified. ~ By her own
testimony she can't support that statement.
Councilman Clymer - She ; must have some remote idea as to when it was removed.
Miss gosh - I was on duty the night that Offfcer Holmbeck removed the~sign.
Attorney Clark - Did you understand the question that I posed.
Miss Gosh - Well I can't come right out and say it was Wednesday night but I know
that Officer Holmbeck was on duty that night and that Officer Holmbeck removed the
sign and I was the dispatcher on duty that night.
Attorney Clark - Wednesday night
Miss Gosh - No, I said that I cannot state whether it was Wednesday night or Thursday
or Friday but I do know that I was on duty when Officer Holmbeck picked up the sign.
Attorney Clark - When ~hen~in~relation to the night when you know Officer Holmbeck.
took the sign out of the Public House did you see the sign in the Public House.
Miss Gosh - It was either the night,he~Sre that night,or 2 nights before that.
Attorney Clark - You are not sure whether it was the night before or a few nights before.l!
Do you know which night of the week iC was-,that you saw the sign.
Miss Gosh - No.
Attorney Clark - Do you know which night of the week it was that Officer Holmbeck brough~i
it into the station.
768
i__ Public_limiting_ii ...................... __~___~R~V_ C.~f Council'
Officer Holmbeck - Can I give this witness the benefit of my report being as she wrote ~iquor Violation
it. Hearing "Pub"
Attorney Scott - Certainly.
(Miss Gosh reviewed report)
Attorney Scott - Miss Gosh do you have anything further to testify to since you have
refreshed your memory.
Miss Gosh - It was either March 1st or 2nd that I entered the Public House and saw the
sign.
Attorney Scott - Any further questions.
Mr. Philpott - The State would like to ask a question. We have been referring to Mr.
Keating as the Manager of the Public House. Is it not true Mr. Keating that you are
part owner of this establishement.
Mr. Keating - No.
Mr. Philpott - Didn't you so indicate to me, didn't you tell me that you were part owne~
Mr. Keating - No. ·
Attorney Scott - I thi~k that I will call off that line of questinning.
Mr. Swales - I would like to say right now, that Mr. Keating does not have $1.00 in that
tnsiness.
Attorney Scott - That ends the evidence on the part of the City. Do you have any
evidence or statements you wish to make Mr. Clark.
Attorney Clark - We don't have any other or additional evidence to offer but I would
like to surmnarize the points that have been made and discuss the nature of thecharges
with Council as to the evidence.
Attorney SCott - Why don't you go ahead and do that.
Attorney Clark - Since we have been discussing most recently this sign incident
lets turn to that for a few moments. Before I get into, I'said that I don't have
further evidence, I would like to ask some questions of Mr. Swales.
Attorney Scott - GO ahead and do that.
Attorney Clark - Mr. SWales, had you ever seen the sign which has been referred today
as the sign prior to this time.
Mr. Swales - No, today is the first time.
Attorney Clark - Have you ever had the sign in your possession.
Mr. Swales - Never
Attorney Clark - Did you ever exhibit in the past, delivered or given the sign to anyone.
Mr. Swales - No.
Attorney Clark - Did you know that it was in your place of business.
Mr. Swales - No.
Attorney Clark - I would like to read the Chapter and Section of the Code with which
Mr. Swales has been charged with violating. It is entitled distribution of obscene
literature.. -
Attorney Scott - Just for the record it is Mr. Keating who was charged with that
violation am I correct.
Attorney Clark - Well if Mr. Keating has b~en charged with that violation then I submit
that it is not proper for Mr. Swales License to be subject to suspendion or revocation
based on this charge, and this charge has been included in the show cause letter.
769
Liquor Violation Attorney Scott - I think you can argue that Mr. Clark, but I am not going to make
Heaing "Pub" any ruling or argue that point. But go ahead.
Attorney Clark - This is precisely what I would like to take up with Council.
Attorney Scott - You go ahead with your arguement.
Attorney Clark - The Code says it shall be unlawful for any person to exhibit, pass,
give or deliver to another any obscene, lewd, or indecent book pamphlet, picture,
card, print, paper, writing, mold, cast or figure or to have the same in his
possession. It seems clear that to violate this section of the code, it takes an
act that is an activity on the part of the person who has been charged. Not just
a passive statement. It takes the doing or the permitting to be done of one of the
acts prohibited by this Code. It also seems that by violation of this section of the
code requires a willfull intent to violate the law. Intent to commit an act prohibited
by the Code. Mr. Swales has just testified that he has not done any of the acts
prohibited by this section. There is no evidence by anyone lese that he has done any
of these acts or that he has knowingly permitted them done. The City Attorney has
just stated that he has not been charged with this. So it seems to me that this is
improper for Council to consider this matter as it relates to the possible suspendion
or revocation of the license. In other words, he has not done a thing that this
section prohibits. Now it is true that Mr. Keating was charged with this and found
guilty and he paid that fine. Mr. Keating is not the licensee whose license is
being tested here today. To get into these other alleged violations let me read to
you from the Section 19B of Regulations under Colorado Liquor Code.
"Regulation 19B - Each licensee shall conduct his 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 indencent displays,
profanity, rowdiness, undue noise, or other disturbances or activity offensive to
the senses of the average citizen, or to the residents of the n~hborhood in which
the establishment is located."
Again it seems to me that the language of the Regulations says that the licensee shall
not permit certain things. The evidence shows that there has been no permitting of any
of the acts prohibited by this Code. To the contrary the owner and manager have
endeavored to not permit this sort of conduct. Of the four alleged violations,
2 of them one on the November-8th and theone on November 10th were brought to the
attention of the Police by the licensee himself. In the wording of the Statute or Code
that the licensee shall not permit it seems to me that it cannot mean absolute guarantee
by the licensee either. No rowdiness or any other such acts will occur. Rather zf the~i
occur you will do all within your power to stop it and we submit that the evzdence has ~
shown that that is what occurred. I think that we can all draw on our experiences
in Aspen and know its a rare restaurant and bar in this town that hasn't had some
occmsion of rowdiness and.again I would submit that it is not the responsibility of the
licensee to absolutely guarantee that these things don't even get started. This is
almost an impossibility. If they do get started, I think the real test of whether
or not he violated the Code is what does he do about it after it get s started. Does
he permiy them to continue or does he endeavor to stop it. I think the evidence
has shown that they have endeavored to stop them, have endeavored to cooperate with
the liquor licensing authorities. And based onthis relationship of the evidence
to the Code as it reads, we respectfully request that you find Mr. Swales not guilty
of violating any of the charges against him.
Attorney Scott - Is that all you [mve Mr. Clark?
Attorney Clark - I would-~like to ask~one question of Officers Holmbeck, Wall,
Zimmer and Liquor Inspector Mr. Philpott. Do any of you~Gentlemen know if any
complaint offensive, and I am quoting now from the language in the liquor code, do any
of you know of any complaints offensive to the senses of the citizens or the residents
of the n~ighborhood have been violated by the licensee.
Officer Holmbeck - If I did state someone elses opinions.that would be some one elses.
I couldn't testify to that. But there have been people, you know who have been in the
Pub that don't likeit, but they don't like other places too and I think that that
is an unfair question to ask.
Attorney Clark - Officer Holmbeck, I am reading from the law and the law says shall not
permit disturbances or activit~y that is offensive of the average citizen or to the
residents of the neighborhood in which the establsihment is located. And my question
to you is do you know of any complaints o.f that nature.
77O
Public Hearing Aspen City Council March 28, 1968
Officer Holmbeck - No formal complaint. Liquor Violation
Hearing "Pub"
Officer Wall - No formal complaints.
Officer Zinnner - Noformal complaints.
Mr. Philpott - Just the one involved the fight which we walked into.
Attorney Clark - But this was not by a resident of the n~ighborhood.
Mr. Philpott - No, we were just routine checking.
Attorney Scott - Any furthe~ 'questions.
Mr. Swales I just think that it is a tough business and we take a lot of risk being
in the business. The little things which come up, build up and get out of proportion.
And to have a man come in and spend thousands of dollars~knowing that you could be
cut off any second by a series of incidents like this. I think 4 out of 5 you will
agree are not very serious over a period of 10 months. I think, and I don't know how
many of you Gentlemen, have been down to the Pub lately, but I think this winter the
operation has been excellant I really do, I think we have a good operation going. It
appeals to a certain group that have behaved themselves and I thi~k are worthwhile
and they are locals. It is a local bar. We do not advertise for tourists and we don't
really want them. It is run by locals for the locals. I think consideration should
be given on the seriousness of these charges because it affects a lot of people. We
can do nothing about salving our reputation from the advertising of the publicity this
has Caused us, may take a long time to get it back. Bill made a mistake paid for it,
quite a price to pay for a casual mistake. I think justice has been done and I would
like to have your consideration for us businessmen with this particular problem. We
are trying to run a good place and I think we do and I think it will be an asset to the
town if it isn't already.
Attorney Scott - Any further questions. (No further comments) As far as this hearing
is concerned all the evidence is in, all the statrm nts have been made and as far as
I am concerned and the way I interpret the procedure under the liquor code the Council
may elect to do one of two things. Either consider the evidence as it has come in all
the statements and.~ke your ruling with respect to whether or not good cause has
been shown by Mr. Swales or by anybody else or by evidence come in for not suspending
or revoking his license. Or you could take the matter under advisement and continue
this hearing until a later day or later today or on a specified date at which time I
think'in fairness to all concerned, you should come up with your ruling and your
reasons for the ruling. In fact, you ought to put it in writing at a later time any-
way.
Mayar Barnard - Mr. Scott, I don't think we should continue the hearing. I think we
should have the hearing and terminate it today. Whether or not Council wants to decide
now or take it under advisement is up to them.
Attorney Scott - I think that the ruling should be as a part of the hearing. That
would be the only purpose for continuing the hearing. The hearing is over with as
far as evidence. I think it is up to Council, I don't have any recommendations to ma'ke
Councilman Clymer - One question I would like to ask, Mr. Scott. Since you conducted
the hearing, is it appropriate for me to ask legal advise of you.
Attorney Scott - I think it would be more appropriate if we are going to deliberate the
factual significance of the evidence and/or the legal to do it outside the hearing, but
I think in all fairness to the participants whatever is d~scussed should be explained
if there becomes grounds for any particular decision it should be subject to f&~
explanation. When you come back into the hearing to give your ruling this is assuming
the ruling is going to be meg~a~e, if you rule that cause was shown that the license
shouldn't be suspended or revoked, then I don't think anybody cares too much about very
fine points of explanation.
Councilman Clymer - Just one legal question, that I would like your legal ~pinion on.
Mr. Swales has an able and tmus~ed aid that is operating the management of the
business in his absence and he has apparently allowed this violation to go on to his
knowledge and therefore, I believe Mr. Swales is ~6directly responsible for the conduc~
of the business.
Attorney Scott - I think I understand your question. I agree with you as far as the
logical interpretation of the liquor code provisions go. I think you have to take
the position that the proprietor is up to the point responsible for those who work for
him, his employees, as lomggas they are on the premises doing what they would normally
do within the scope of their employees activities. I think that is a very fair thing
to do to make technical arugment Mr. Swales. Mr. Swales himself was not charged with
such and such. I think that the essence of the hearing was it is alleged that certain
violations of certain laws and regulations occurred on his licensed premises and I thin
771 '
Public Hearing Aspen City Council March 28, 1968
~jLiuqor Violation Attorney Clark - Were you relating your question to the sign incident.
Hearing "Pub"
· ~ Councilman Clymer - Mainly
Attorney Clark - Did I understand that as part of your remarks to Mr. Scott, that Mr.
Swales permitted this to go on with his knowledge.
Councilman Clymer - No I didn't. I said Mr. Swales in his absence from the business
has an agent directly under him and more or less responsbible for the management of
th~ business who allowed this to go on, which puts Mr. Swales indirectly responsible.
Attorney Clark - I just wanted to clarify the point.
Mayor Barnard - Well that is the crux of it right there. When Mr. Swales became aware
of what was going on it was not permitted, right, and that is what the law says shall
~ ~ not permit.
Attorney Scott - Any further questions.
Councilman Clymer made a motion to take this under advisement and come up with the
answer at the Council meeting on Monday at 3:30 p.m., seconded by Councilman
Benninghoff. Roll call vote - Councilmen Bergman aye;~ Clymer aye; Benninghoff aye.
Attorney Scott - The hearing will be continued for the limited purpose of Council's
decision and reasons therefore until Monday at 3:30 p.m. regular Council me~ting.
Attorney Clark - Would like to know if the sign is going to be preserved by the
Police Department in their possession.
Attorney Scott - Will answer that question, there is no reason why we shouldn't until
the case if finally cleared up.
Councilman Benninghoff made a motion to adjourn at 5:20 p.m., seconded by Councilman
Bergman. Ail in favor, meeting adjourned.
Lorraine Graves, City Clerk