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HomeMy WebLinkAboutminutes01-21-10 MINUTES January 21 , 2010 The Kauai Liquor Control Commission held a regular meeting on Thursday, January 21 , 2010, at 4:00 p.m. in Meeting Room #3 of the Lihue Civic Center, Mo'ikeha Building, 4444 Rice Street, Lihue, Kauai, Hawaii, to transact business as did properly come before the meeting as follows: ROLL CALL: In response to roll call, Chair Gerald Matsunaga, Vice Chair Shirley Akita, and Commissioners Pauline Ventura, Clifford Nakea, William Gibson and Gary Pacheco were present. Absent and excused was Commissioner Myles Shibata. APPROVAL OF AGENDA: Commissioner Ventura made a motion, which was seconded by Commissioner Pacheco, and unanimously carried, to approve the hearings and regular meeting agendas as prepared by the Director. 1 . CONTINUANCE OF PUBLIC HEARING: ASTON KAUAI BEACH AT MAKAIWA: The public hearing on Application No. 2010-51 filed on October 23, 2009 for transfer of Hotel License No. 12G-006 from Waipouli Owner, LLC dba ResortQuest Kauai Beach Hotel to HI 5th Circuit Court 09-1-0110 Joseph Toy, Receiver dba Aston Kauai Beach at Makaiwa located at 650 Aleka Loop, Waipouli, Kauai, Hawaii was opened on December 3, 2009 and continued to January 21 , 2010 at 4:00 p.m. or shortly thereafter in Meeting Room #3 of the Lihue Civic Center, Mo'ikeha Building, 4444 Rice Street, Lihue, Kauai, Hawaii. Mr. Jonathan Chun, attorney, and Mr. Joseph Toy, receiver for the 5th Circuit Court, were present. Mr. Chun stated that this public hearing was continued because there was an outstanding violation on the premises that has since been adjudicated and the fine has been paid by the current licensee. Regarding the supplemental report, Commissioner Nakea inquired about the financial condition and Mr. Chun stated that they would like that to remain confidential. The hotel is under Mr. Toy's receivership and the court is looking at obtaining a buyer. The receiver is involved in the operation and the hotel's finances might or might not be material to the sale. Mr. Toy added that as a court representative, he just provided the information as cash on hand on the estate. Since there were no further questions or comments, Chair Matsunaga closed the public hearing on Application No. 2010-51 . A motion was made by Vice Chair Akita and seconded by Commissioner Gibson to approve Application No. 2010-51 for transfer of Hotel License No. 12G-006 from Waipouli Owner, LLC dba ResortQuest Kauai Beach Hotel to HI 5th Circuit Court 09-1-0110 Joseph Toy, Receiver dba Aston Kauai Beach at Makaiwa. 1 MINUTES January 21 , 2010 If this application is approved, Commissioner Nakea asked if the Commission would have the opportunity to review the financial condition of the ultimate licensee. Mr. Chun believed a report needs to be filed at renewal time which comes up in June. So theoretically, Commissioner Nakea thought they could find a person to operate the bar and restaurant and the Commission wouldn't approve it until renewal. Mr. Chun stated that they are not selling the bar and restaurant separate and apart from the hotel. Mr. Toy agreed and explained that their plans are to operate the hotel by the receivership with Aston Hotels. The motion to approve Application No. 2010-51 was put and unanimously carried. 2. VIOLATION HEARINGS: (a) THE WESTIN PRINCEVILLE OCEAN RESORT VILLAS: Violation of Section 281-78(b)(1)(A), HRS, Prohibitions. Mr. Kahau Manzo, Director of Food & Beverage and Executive Chef represented the licensee and admitted to the charge. Mr. Manzo said their bartender was approached by three individuals. She got the ID from the underage minor which was a vertical ID that should have been a red flag on its own. She read it, gave it back to the minor and served her a beer. At that time, the bartender was placed under arrest and taken to the Hanalei substation. Vice Chair Akita wondered what the bartender had to say about the incident. Mr. Manzo stated that she has worked at the hotel since it opened almost 2 years ago as a full-time bartender. In their own investigation, they found negligence on her part and terminated her earlier this month. Mr. Manzo said she had the ID yet she used poor judgment and served liquor to the minor. Mr. Manzo related that she did say she was tired. Vice Chair Akita made a motion, which was seconded by Commissioner Gibson, and unanimously carried, to fine The Westin Princeville Ocean Resort Villas $2,000 and suspend payment of$1 ,000 provided a similar violation does not occurs for 1 year. (b) LIGHTHOUSE BISTRO: Violation of Section 281-78(b)(1)(A), HRS, Prohibitions. Mr. Matthew Ernsdorf, Member, represented the licensee and admitted to the charge of violating Section 281-78(b)(1)(A). Mr. Ernsdorf stated that the underage girls came into the bar and the bartender told them they could not sit at the bar. Mr. Ernsdorf understood that they left the premises but came back in and were seated at a table. The waitress was very busy; she did not card the minor and served her a beer. 2 MINUTES January 21 , 2010 Mr. Ernsdorf continued to say that he came in to renew his blue card on August 26, 2009. The gentleman giving the course said they will be out before the end of the year to do these compliance checks. Mr. Ernsdorf said he knew it was coming and he had a meeting with his employees to go over their procedures and forewarn everyone about these compliance checks. Mr. Ernsdorf felt he did all he could to train his employees and the waitress knew she blew it. Commissioner Nakea asked if he terminated her. Mr. Ernsdorf replied that he did not terminate her. He believes she will never serve a minor again as this has been a learning lesson in her life. Mr. Ernsdorf stated that she is young but she is a very good employee and a hard worker. Since the violation, Mr. Ernsdorf said he's seen her card diligently so he doesn't think there's cause for firing her at this time. Commissioner Gibson asked about the bartender, Cameron Keys. Mr. Ernsdorf stated that Mr. Keys realized he should have been more in control of the situation as the manager on duty. Mr. Keys knows now to go and look at who is ordering liquor and check what's happening on the floor. Mr. Ernsdorf reiterated that this has been a very good learning experience for everyone involved. Commissioner Nakea made a motion, which was seconded by Vice Chair Akita, and unanimously carried, to assess Lighthouse Bistro with a $2,000 fine and suspend payment of$1 ,000 on the condition that there is no other violation of this section for 1 year. (c) THE WAIOLI CAFE: Violation of Section 281-78(b)(1)(A), HRS, Prohibitions. Mr. Timothy Kerlin, President, represented the licensee and admitted to the charge. Mr. Kerlin explained that the server just got lazy and she wasn't paying attention. Mr. Kerlin stated that she was immediately disciplined and they have meetings to follow up. The next meeting is on February 16 and that's when Mr. Kerlin will start training and have his people get their blue cards. The training provided by the department is excellent. The blue card training is sufficient enough to where everybody knows automatically that the vertical card means they're not 21 and then they're taught to ask customers if they're 21 . Mr. Kerlin distributed copies of a notice he circulated to his employees which institutes a new policy where they are to card anyone who appears to be 40 years of age or younger. The employees initialed the notice to confirm that they have read it and will comply with this new policy. If he sees his employees not carding customers, he will re- train them. They have some young waithelp, too, but Mr. Kerlin felt that being busy is never an excuse for not following the law. 3 MINUTES January 21 , 2010 Vice Chair Akita related that she was at the airport and they have a practice to card everybody. Vice Chair Akita thought the waitress was kidding when she asked to see an ID, but the waitress explained that it's their policy. Mr. Kerlin added that he was carded twice at the Honolulu Airport; once before receiving his first beer and then again before receiving his second beer. Commissioner Nakea stated that the sting operations are very successful in the wrong way. It appears that employees are, by human nature, going to cut corners when they're busy or tired. Even experienced workers have looked at the vertical format of a license and still served them liquor, so it's a tough challenge to keep them on their toes. Commissioner Nakea stated that there's even been instances where the licensee did not ask for an ID. Mr. Kerlin agreed that it gets very, very busy and his bar manager who bartends, cashiers, and serves also has to watch for people walking out the door with a beer and other things. A motion was made by Commissioner Gibson, seconded by Commissioner Nakea, and unanimously carried, to assess a $2,000 penalty against The Waioli Cafe and suspend payment of$1 ,000 provided there are no further violations of this section for 1 year. The Commission adjourned the hearings agenda and continued with the agenda for the regular meeting. 1 . DIRECTOR'S REPORT: (a) INVESTIGATORS' REPORTS. (b) INCOMING COMMUNICATIONS: (1) From Hinman & Carmichael LLP, Re: Duvel Moortgat UVice Chair Akita "Duvet Lovers Valentine's Sweepstakes". (2) From Remy Cointreau USA, Re: Remy Martin Louis XIII Label Approvals. (3) From Maanum Law Firm, LLC, Re: Moet Hennessy's "Glenmorangie A Stroke of Genius" Sweepstakes. (4) Disturbance Reports from Aloha Beach Kauai Hotel, Kauai Marriott Resort and The St. Regis Princeville Resort. (c) OUTGOING COMMUNICATIONS: (1) Notice of Hearing to The Westin Princeville Ocean Resort Villas, Lighthouse Bistro and The Waioli Cafe. (2) Findings of Fact to A Taste of Paradise Kauai, CJ's Steak & Seafood, The Hanalei Dolphin and ResortQuest Kauai Beach Hotel. 4 MINUTES January 21 , 2010 (c) OUTGOING COMMUNICATIONS: (Cont'd.) (3) To All Wholesale Licensees, Re: New Liquor License, Temporary License, and Licensee Conversion. (d) EMPLOYEES IN LICENSED PREMISES: Managers and Assistant Managers — See attachment. (e) ACTIONS OF THE DIRECTOR: (1) MERRIMAN'S KAUAI: Approval of off-premise catering function at 2829 Ala Kalanikaumaka Street, Suites A100 and A101 , Koloa, on December 29, 2009 from 5:00 p.m. to 10:00 p.m. (2) TAHITI NUI ENTERPRISES, INC.: Approval of special request for temporary increase of premises to include 30' x 14' area fronting the restaurant, per diagram submitted, from 11 :00 a.m. on December 31 , 2009 to 2:00 a.m. on January 3, 2010. (3) BLOODY MARY'S OCEANFRONT BAR AND Investigator RapozoILL: Approval of Application Nos. 2010-78, 2010-79 and 2010-80 filed on December 31 , 2009 by Bloody Mary's Oceanfront Bar and Grill, LLC dba Bloody Mary's Oceanfront Bar and Grill for Special General licenses from January 1 through January 7, 2010 at 4-820 Kuhio Highway, Kapaa, Kauai, Hawaii. (4) DA KINE WINE: Approval of special request to conduct sampling of 5 varieties of wine, per list, on January 16, January 23, and January 30, 2010 from 4:00 p.m. to 7:00 p.m. (5) KAIOLA CANOE CLUB: Approval of Application No. Free 2010-15 filed on December 22, 2009 by the Kaiola Canoe Club for a Free One-Day Special Dispenser Beer & Wine license on January 23, 2010 at the Kauai War Memorial Convention Hall, Lihue, Kauai, Hawaii. (6) ST. MICHAEL & ALL ANGELS EPISCOPAL CHURCH: Approval of Application Nos. Free 2010-16 and Free 2010-17 filed on January 12, 2010 by St. Michael & All Angels Episcopal Church for Free One-Day Special Dispenser Beer & Wine licenses on February 5 & February 6, 2010 on the grounds of St. Michael's Church, 4364 Hardy Street, Lihue, Kauai, Hawaii. (f) INFORMATIONAL MATTERS. Commissioner Nakea made a motion, which was seconded by Commissioner Pacheco, and unanimously carried, to approve the above Director's Report. 5 MINUTES January 21 , 2010 2. PROPOSED AMENDMENTS TO RULES & REGULATIONS. Investigator Shimatsu wondered if the Commission, in light of the Director's absence, would like to defer this until the next meeting. A motion was made by Vice Chair Akita, seconded by Commissioner Ventura, and unanimously carried, to defer acting on the proposed amendments to the Rules & Regulations until February 4, 2010. A motion was made by Vice Chair Akita and seconded by Commissioner Pacheco to adjourn. Before adjourning, Commissioner Ventura had a question about the policy of handcuffing people and taking them to the police station during the compliance checks. Commissioner Ventura asked why this policy has been implemented now when apparently, it wasn't done in previous checks. Investigator Shimatsu replied that it also surprised the department, but it is KPD's call. Commissioner Ventura asked if it's written somewhere because she went through the rules and couldn't find anything and she has received phone calls from people questioning the practice. Mr. Gerald Rapozo, Investigator, stated that it's a policy for police officers that when an arrest is made, they need to handcuff the individual. Commissioner Ventura felt it was over reacting to handcuff people who haven't beaten anyone or caused a commotion. Mr. Mauna Kea Trask, Deputy County Attorney, explained that as far as classification of offense, an assault in the 3rd degree is the same level as serving alcohol to a minor. Commissioner Ventura thought that serving a minor is a mistake, which is different from hitting someone in the face. Responding to inquiry about when this policy was put in place, Investigator Rapozo stated that the policy is one of the safety procedures the officers need to follow. In this last go around, which began on November 27, 2009, that's when KPD decided that instead of just citing the individual, they were going to make physical arrests and take the servers to the station and do the booking. Vice Chair Akita thought it'd be interesting to compare the results of the compliance checks before November 2009 to the results of checks held since November 2009. Servers are realizing that there are repercussions and Vice Chair Akita felt it's not for us to tell the police what to do. Investigator Shimatsu expressed that Vice Chair Akita might be disappointed to learn that the compliance team went out again this past Friday and the net result was about 47% non-compliant. From 1999 all the way up to just recently, the compliance checks 6 MINUTES January 21 , 2010 were predominantly done at off premise establishments. Since November, the focus has shifted to on-premise establishments so these checks are relatively new for the bars and restaurants. The compliance checks at retail stores began with about a 38% non-compliance rate and since then, it has dropped down to the teens. Commissioner Nakea thought the department could use this information as part of their training and maybe even create posters of an individual being taken away in handcuffs so that the licensees can post it in their licensed premises. Investigator Shimatsu stated that this practice started only recently and in a way, it's problematic if the manager on duty is the one being handcuffed and taken away. This leaves the business with no qualified individual to operate it. Investigator Rapozo added that after the first case, the liquor and police departments received phone calls, too, because it does inconvenience the business, even if it's not the manager on duty being taken away. If it's the waitress being arrested, they're taking away someone who was serving 6 tables so they have to double up to cover her tables. Vice Chair Akita echoed Commissioner Nakea's sentiment in terms of capitalizing on this so all establishments will know what's happening. Vice Chair Akita guessed that's why the police are using dramatic measures, aside from the safety aspect. Investigator Shimatsu explained that it is incorporated in our training program and thought that it's really pretty hard to be caught with this compliance check. To get away from entrapment, the minor decoys are trained to always tell the truth so the simplest thing to do is ask the customer how old they are. The decoy is going to tell them 18, 19 or 20 and they're done. It kind of baffles us why they still get caught. Investigator Shimatsu stated that it's disappointing for us, too, when the percentage rate is high since it kind of reflects poorly upon us. We hope that the percentage rate is good. Commissioner Ventura again inquired about the rule regarding handcuffing and Mr. Trask stated that in a petty misdemeanor such as minor traffic offenses, the officer has the discretion to write a citation and/or arrested, based on his assessment of the situation. At a misdemeanor level and above, Mr. Trask thought an arrest was mandatory. This may be a reaction by the police department to be more stringent in hopes of discouraging sales to minors because it is a shock. The offense is a misdemeanor and they could go to jail for a year if the judge sees fit, so it is pretty serious. Vice Chair Akita agreed that it's not something to be taken lightly. Investigator Shimatsu thought the maximum penalty is $2,000 and/or 1 year in jail for selling liquor to a minor. Servers who have been before the judge on past violations were fined $500. 7 MINUTES January 21 , 2010 Commissioner Ventura reiterated that the first time she's ever heard witnesses saying they were handcuffed and taken away was at this meeting and the last one. Investigator Shimatsu added that Chapter 281 states that liquor investigators also have police powers and they been trained and certified to use handcuffs although it hasn't been instituted yet. ADJOURNMENT: The motion to adjourn was put and carried and Chair Matsunaga adjourned the meeting at 4:42 p.m. Respectfully submitted, Dexter S. Shimatsu Liquor Control Investigator IV 8