STAFF REPORT
Date:March 11, 2010
To:Mayor and City Council Members
Through:
Nancy Werner, City Attorney
From:Kenneth D. Johnson, Chief of Police
Subject:LIQUOR LICENSE RENEWALS
Resolution/Ordinance Number:N/A
Addresses Council Goal
N/A
Report in Brief
Each year the Police Chief is asked to review all liquor license renewals and make a recommendation to the City Council. I have reviewed calls for service to all establishments on the license renewal form provided by the Oregon Liquor Control Commission (OLCC), which is attached. I have found nothing in this review that would cause a negative recommendation for any of the establishments on the list except for the Gin Sun Restaurant and Lounge.
Background
The Oregon Revised Statues establishes the provisions for local government recommendations for liquor license applications and renewals. The pertinent sections are:
471.166 Local government recommendations on license issuance and renewal; rules; fees. (1) The Oregon Liquor Control Commission may require that every applicant for issuance or renewal of a license under this chapter acquire a written recommendation from the governing body of the county if the place of business of the applicant is outside an incorporated city, and from the city council if the place of business of the applicant is within an incorporated city. The commission may take such written recommendation into consideration before granting or refusing the license.
(3) If the commission requires that an applicant for renewal of a license acquire the written recommendation of a local government under this section, the commission shall give notice to the local government when an application is due for renewal of the license. If the local government files a favorable recommendation with the commission within 60 days after the notice is given, the commission shall proceed with consideration of the application. The commission shall proceed with consideration of the application as though the local government had made a favorable recommendation unless within 60 days after notice is given to the local government:
(a) The local government files an unfavorable recommendation with the commission with a statement of the grounds for the unfavorable recommendation; or
(b) The local government files a request for additional time with the commission that sets forth the reason additional time is needed by the local government, a statement that the local government is considering making an unfavorable recommendation on the application, and the specific grounds on which the local government is considering making an unfavorable recommendation.
(4) The commission shall suspend consideration of an application subject to this section for a reasonable period of time if a local government requests additional time under subsection (2)(b) or (3)(b) of this section and the grounds given by the local government are valid grounds for an unfavorable determination under this chapter or rules adopted by the commission. The commission shall by rule establish the period of time that shall be granted to a local government pursuant to a request under subsections (2)(b) and (3)(b) of this section.
(5) The commission shall by rule establish valid grounds for unfavorable recommendations by local governments under this section. Valid grounds established by the commission under this section for an unfavorable recommendation by a local government must be limited to those grounds considered by the commission in making an unfavorable determination on a license application.
Note: Oregon Administrative Rules (OAR) 845-0308 lists the valid grounds for a local governing body’s unfavorable recommendation on any license application, which includes ORS 471.313 (4) and (5).
471.313 Grounds for refusing to issue license. The Oregon Liquor Control Commission may refuse to license any applicant under the provisions of this chapter if the commission has reasonable ground to believe any of the following to be true:
(4) That the applicant:
(g) Did not have a good record of compliance with the alcoholic liquor laws of this state and the rules of the commission when previously licensed.
(5) That there is a history of serious and persistent problems involving disturbances, lewd or unlawful activities or noise either in the premises proposed to be licensed or involving patrons of the establishment in the immediate vicinity of the premises if the activities in the immediate vicinity of the premises are related to the sale or service of alcohol under the exercise of the license privilege. Behavior which is grounds for refusal of a license under this section, where so related to the sale or service of alcohol, includes, but is not limited to obtrusive or excessive noise, music or sound vibrations; public drunkenness; fights; altercations; harassment; unlawful drug sales; alcohol or related litter; trespassing on private property; and public urination. Histories from premises currently or previously operated by the applicant may be considered when reasonable inference may be made that similar activities will occur as to the premises proposed to be licensed. The applicant may overcome the history by showing that the problems are not serious or persistent or that the applicant demonstrates a willingness and ability to control adequately the premises proposed to be licensed and patrons’ behavior in the immediate vicinity of the premises which is related to the licensee’s sale or service of alcohol under the licensee’s exercise of the license privilege. [Formerly 471.295; 2001 c.785 §1]
471.329 Serious and persistent problems involving noise as grounds for discipline of licensee or applicant. (1) For the purpose of determining whether there is a history of serious and persistent problems involving noise under the provisions of ORS 471.313 (5) and 471.315 (1)(c), or whether the licensee maintains a noisy establishment in violation of the provisions of ORS 471.425:
(a) Noise from the inside of a licensed premises located within the boundaries of a city or county that has an ordinance regulating excessive noise may be considered obtrusive or excessive only if the noise violates the ordinance;
(b) Noise caused by patrons outside a licensed premises located within the boundaries of a city or county that has an ordinance regulating excessive noise may be considered obtrusive or excessive only if the noise violates the ordinance or if the noise is of a type that a reasonable person would not expect to hear outside a premises licensed for the sale of alcoholic beverages; and
(c) Noise caused by patrons inside or outside a licensed premises located within the boundaries of a city or county that does not have an ordinance regulating excessive noise may be considered obtrusive or excessive only if the noise is of the type that a reasonable person would not expect to hear inside or outside a premises licensed for the sale of alcoholic beverages.
(2) For the purpose of determining whether noise is obtrusive under the provisions of ORS 471.313 (5) and 471.315 (1)(c), or whether the licensee maintains a noisy establishment in violation of the provisions of ORS 471.425, the Oregon Liquor Control Commission shall consider whether persons complaining about the noise have taken any action to mitigate the disturbance alleged to have been caused by the noise. [1999 c.646 §10; 2001 c.785 §4]
471.412 Allowing visibly intoxicated person to consume alcoholic beverages; good faith effort; effect on other liability; letters of reprimand. (1) No licensee or permittee shall knowingly allow a person to consume or to continue to consume alcoholic beverages on the licensed premises after observing that the person is visibly intoxicated.
Applicants for a liquor license are given clear instructions about what is required. In addition, all employees serving alcohol on the licensed premise must obtain a Service Permit. In order to obtain a Service Permit, the individual must complete a study course and pass a test. All Service Permit holders are made aware of the rules under the Oregon Revised Statue and Oregon Administrative Rules: They cannot serve a visibly intoxicated person and that the licensee is required to keep order inside the establishment and in their parking lots. The training and test include information on how to spot visibly intoxicated individuals and ways to stop service or remove drinks from those visibly intoxicated.
Gin Sun History:
On March 5, 2010, I spoke with OLCC Investigator Matthew Cobos regarding prior warnings or violations at the Gin Sun Restaurant and Lounge. Cobos provided the following “official” OLCC contacts:
July 8, 2006: Owner Lilly Choi received a Notice of Warning Ticket (written warning) for violations of ORS 471.410 (over-service to visibly intoxicated persons).
January 2007: Bartender was given verbal instructions about over-service to patrons of Gin Sun.
May 2007: Same bartender was warned about DUII that was linked to drinking at Gin Sun- a driver that was visibly intoxicated and blew a .22 BAC (Blood Alcohol Content).
January 2008: Day shift manager warned about over-service to visibly intoxicated persons.
July 15, 2008: Owner Lilly Choi contacted and warned about over-service and “permitting disorder.”
February 10, 2010: Bartender warned about DUII accident caused by person who blew BAC of .15 linked to over-service at Gin Sun Restaurant and Lounge.
There have been several police calls for service to the Gin Sun Restaurant and Lounge during the calendar year 2009 and early 2010. The amount of calls listed are not as concerning as the increase in frequency, as the year progressed, the amount of over-service observed and the increased violence and safety concerns expressed by officers responding. A synopsis of calls for service included:
3/01: Disturbance
4/01: Unwanted person “drunk and mouthy”
4/07: Disturbance
5/16: Disturbance
5/31: Disturbance
6/20: Fight and assault arrest (harassment)
6/28: Juvenile problems-inside bar (under aged, no ID, refusing to leave)
7/18: Noise Disturbance
7/19: Noise Disturbance
7/26: Noise Disturbance
8/09: Fight
9/14: Unwanted person “drunk inside the bar”
9/18: Unwanted person “17 year old keeps sneaking in”
9/18: Unwanted person (same person back again-refusing to leave)
9/20: Unwanted person
10/02: Shots fired reported by person at bar. Employee later said they had “an issue inside but
calm now”
10/17: Fight/Disturbance resulting in arrest for assault and probation violation detainer arrest
10/20: Fight “numerous patrons appeared to be over served”
11/01: Found purse with loaded revolver inside-purse was in the lounge
11/03: DUII-“Very drunk female in parking lot”
11/07: Noise disturbance
11/14: Fight resulting in arrests. Bartender used pepper spray on combatants
11/15: Fight resulting in DETOX due to severe intoxication
11/28: Drunk females causing problems in lounge one was ultimately arrested for DUII
12/07: Destruction of property
12/20: Theft
12/25: Drunk subject cutting cookies in parking lot of Gin Sun
12/26: Call to check welfare of “drunk friend” that just left Gin Sun
12/27: Disturbance
12/31: Drunk driver in parking lot of Gin Sun
Gin Sun personnel are continuing to over-serve, which is evident by the number of references, in police calls, to people who are “drunk” or found in the parking lot highly intoxicated. Several police reports, filed in the past twelve months, reference this major concern. Below are excerpts from official Fairview Police Reports:
October 17, 2009: Written by Officer Asboe who responded to a fight at the Gin Sun where a bartender threatened to pepper spray combatants. While investigating the fight, Officer Asboe interviewed one of the bar patrons. Asboe wrote, I could see that (name redacted) was visibly intoxicated. She had red, watery eyes, slurred speech and was having trouble standing and balancing.”
October 20, 2009: Written by Acting Sergeant Pemberton who responded to a fight at the Gin Sun. Acting Sgt. Pemberton wrote, “The text in the call stated a “super” intoxicated subject said someone was fighting with the bartender. I arrived and contacted three females near the north entrance to the bar. The females were clearly intoxicated as they were swaying as they stood and one female staggered as she walked around the covered porch. They also had slurred speech. Two other patrons who were yelling (at the police) appeared to have been over-served. These two had slurred speech and were obnoxious.”
January 2, 2010: Officer Morton responded to a disturbance and wrote, “On 010210 at approximately 0056 hrs. I responded to a call of a disturbance at the Gin Sun restaurant and bar. The initial information was that several people were fighting. Upon arrival I observed a group of approximately twelve people yelling, screaming, pushing and shoving. I saw a male with blood all over his face fighting with another male with a female involved as well. I observed her pushing, slapping and hitting an unidentified male.
Upon approaching the group I gave verbal commands to step back several times. These commands were ignored by everyone. The female was closest to me and I grabbed her shoulders and tried to pull her away. She actively resisted my efforts and I grabbed her hair and pulled her prone on the ground. I did not cuff her.
The other two males were separated by other bar patrons shortly thereafter. Bar patrons at the scene told me the female, later identified as (name redacted) was not involved and was trying to "break up" the fight. I let her up and told her to go sit down. She told me her ankle hurt and I helped her to an area to sit. I do not know how she injured her ankle.
Emergency medical was dispatched and (names redacted) were transported to Mt. Hood Medical Center. It was later determined that (name redacted) injuries were from falling face first in the parking lot due to his high level of intoxication. Additional units responded to this incident. They are denoted below:
Gresham PD: Ofc. Matthew Anderson
MCSO: Sgt. Todd Brightbill
Dep. Stephen Smith
Dep. Peter Read
Troutdale PD: Sgt. Casey Kaer
Fairview PD: Sgt. Bernie Meyer
Ofc. Doug Asboe
Ofc. Eric Flener
Ofc. Joe Kaiser
The scene can only be described as a melee. Everyone involved was highly intoxicated, belligerent and aggressive. Fights were on the verge of erupting both inside the bar and outside in the parking lot. No one was cooperative and I could not get a single person to give even so much as their name.
No one wanted to either be a victim or pursue charges. While at the incident I observed no less than three different people that were carried bodily from the bar due to extreme intoxication. Inside the bar I observed two other patrons barely able to stand due to there level of intoxication. This has been the norm and not the exception at this establishment with regard to my police response there. I made no arrests in this incident. The purpose of this report is for information and possible investigation.”
January 15, 2010: Officer Joe Kaiser wrote a report after investigating a fight at the Gin Sun where a bartender used pepper spray on a patron. Officer Kaiser wrote, “ At approximately 2112 Hours I responded to 22606 NE Hancock regarding an assault. Upon arrival I met with complainant (name redacted) told me that approximately 45 minutes ago she was assaulted at the Gin Sun located at 20725 NE Sandy in Fairview.
While talking to (name redacted) I could detect a strong odor of alcoholic beverage emitting from her person. I asked her how much she had to drink, she replied "I think at least eight beers" I asked her if she had them at the Gun Sun, she replied "yes." I asked (name redacted) if she drove home. She would first tell me that someone else took her home in her own vehicle, and then the person walked home. Later she would tell me that she did drive home. (Name redacted) was visibly intoxicated and was slurring her words when she talked to me.”
Fiscal Impact
N/A
Community Involvement
N/A
Alternative Courses of Action
N/A
Recommendation/Suggested Motion
City Staff respectfully recommends that the Fairview City Council recommend to the OLCC that all liquor license renewals on the attached list are approved except for the Gin Sun Restaurant and Lounge.
The Fairview City Council should recommend to the OLCC that the Gin Sun Restaurant and Lounge renewal request be denied because it appears they do not have a good record of compliance with regard to ORS 471.313 (5) and ORS 471.412 (unable to keep order on the property and over-service of alcohol). And, the Gin Sun does not have a good record of compliance per ORS 471.313 (4) (g).
Attachments
Local Government Notification: Submitted Licenses