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HomeMy WebLinkAboutminutes06-03-10 MINUTES June 3, 2010 The Kauai Liquor Control Commission held a regular meeting on Thursday, June 3, 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 and Commissioners Clifford Nakea, William Gibson and Gary Pacheco were present. Absent and excused was Vice Chair Shirley Akita. APPROVAL OF AGENDA: Commissioner Nakea 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. VIOLATION HEARING: LAVA LOUNGE: .Count 1 . Violation of Rule 7.7, Clearing of tables at closing time. .Count 2. Violation of Rule 6.2, Sales, service, or consumption before or after hours of business, exception. Mr. Courtney Clark, Manager, represented the licensee and denied both counts. Mr. Lorenzo Moises, Liquor Control Investigator, was asked to testify and he explained that on May 1 , 2010, he was assigned to do closing hour checks. Investigator Moises stated that at 2:00 a.m., he and Investigator Baliaris entered Lava Lounge. As he entered, he asked the doorman if everything was put away. The doorman said yes. As he walked in, Mr. Clark was cleaning up. There was a bartender in back of the bar. Mr. Moises saw a glass with what appeared to be champagne in it so he took the glass and was telling Mr. Clark that all of this needs to be put away prior to 2:00 a.m. Mr. Clark related that they're doing it as fast as they can and he asked what time it was. Mr. Moises indicated that he took out his phone and showed Mr. Clark that it was 2:02 a.m. As Investigator Moises did that, the bartender put a Heineken on the bar. The customer at the bar grabbed it. The customer looked at Investigator Moises and then he put it back. At that point, Investigator Moises informed Mr. Clark of the two violations. Chair Matsunaga asked Mr. Clark if he had any questions of the investigator. Mr. Clark said he had no questions. Chair Matsunaga asked if he got the name of the patron. Mr. Moises replied that he didn't get his name, but he knows who he is because he works for the County. Chair Matsunaga surmised then that he's not an employee of the licensee. Investigator Cecilio Baliaris, Jr. stated that he was assigned to do closing hour checks in the KapaaM/ailua area. As they dropped by Lava Lounge, they noticed that there were 1 MINUTES June 3, 2010 people still in the premises. Prior to going in, Investigator Baliaris stated that he called dispatch to do a time check. It was 2:00 a.m. As they walked in, Investigator Moises seized a glass. Investigator Baliaris explained that he was standing at the east side of the bar closest to Kuhio Highway and he saw the bartender open a bottle of Heineken beer and the person standing there picked it up. Investigator Moises also seized the beer bottle. Responding to Chair Matsunaga's inquiry, Investigator Baliaris affirmed that this all happened after 2:00 a.m. Mr. Clark stated that they were in clean up mode. It was the end of the night and the only people in there were employees. There was a glass on the bar and Investigator Moises took it. Mr. Clark asked Investigator Moises what time it was and explained that they did their best to get everything cleared. Mr. Clark stated that the gentleman at the bar, Max, is an employee who works on their computers and works the door. Commissioner Gibson asked if Max was the same doorman that Investigator Moises had spoken to on his way into the premises. Mr. Clark said the doorman was Shawn. Max puts wristbands on customers. In response to further inquiry, Mr. Clark stated that Max was working that night and they don't have any sign in or sign out sheets. It was a busy night and they did their best. Chair Matsunaga stated that it was 2:02 a.m., so Mr. Clark is admitting that it was after the legal closing time. Mr. Clark said it was after 2:00 a.m., but there weren't any patrons in the bar. There were just employees in the bar. Mr. Mauna Kea Trask, Deputy County Attorney, stated that he's agreeing that there were vessels containing liquor still out and Mr. Clark said yes. Mr. Trask asked if those vessels were in areas open to the public and Mr. Clark agreed, stating that a champagne glass was on the bar. Mr. Trask reiterated that the bartender served a Heineken beer to Max and Investigator Moises took the beer away. Mr. Clark said he was not aware that she served a beer to Max. Mr. Clark said he was looking down while emptying the trash, but when he looked up, he saw the bottle and Max standing there. To the best of his knowledge, Mr. Clark stated that the beer was given to Max. Mr. Clark added that they terminated the bartender that did serve that beer that night. Regarding their work schedule, Mr. Clark stated that everybody is on the clock until they get done cleaning up and then the doors are locked and that's when they get off. When the investigators came in, the doors were already closed and locked. The DJ was loading his equipment and going in and out, so the doorman, Shawn, was sitting at the door, monitoring that. Shawn was the one that let Investigators Moises and Baliaris in. 2 MINUTES June 3, 2010 As to Count 1 , Commissioner Nakea made a motion, which was seconded by Commissioner Pacheco, and unanimously carried, to find Lava Lounge guilty of violating Rule 7.7 and to assess a $250 fine. For Count 2, Commissioner Nakea stated that the testimony offered is that Max is an employee and he was on duty. Investigator Moises stated that he has never seen Max working there and if he got off at closing time, he can have a pau hana drink. Investigator Moises also stated that the DJ is not an employee and he was still inside the premises. Commissioner Nakea was not sure that this was testified to earlier. Commissioner Gibson asked if he requested the time sheets. Investigator Moises replied that he did not because he didn't think Max was an employee. Mr. Clark stated that the DJs were carrying out their equipment and Shawn was watching the door that night. In reviewing the rules, Mr. Trask stated that there's an interesting interplay between Rule 6.2 and Rule 7.11 . Rule 6.2 says there shall be no sales, service or consumption after hours except that employees who were on duty at closing time may consume liquor immediately after closing. The evidence has shown that Max was an employee at least by the testimony from Mr. Clark and the rule allows a pau hana drink. But Rule 7.11 states that no employee while on duty shall consume liquor or sit or dance with or play games with patrons. The testimony shows that Max was on duty and it looks like he was intending to consume liquor when he was served the beer. In showing that he was on duty, it takes the licensee out of the purview of Rule 6.2, but lays a case for Rule 7.11 , although Rule 7.11 isn't charged today. For discussion, Commissioner Nakea stated that Rule 6.2 says no one other than employees shall be in the premises and Mr. Clark said the entertainment technicians and entertainers were still on the property. Commissioner Nakea asked for interpretation about that particular charge and wondered if entertainers are considered employees for the night or are they part of the general public. Commissioner Pacheco felt that entertainers are contract employees. Mr. Trask stated that in Rule 1 .1 , employee and entertainer are defined separately. Commissioner Pacheco thought an executive session to discuss the rules was in order and made a motion to go in to executive session. This motion was seconded by Commissioner Nakea and unanimously carried. Mr. Trask advised that pursuant Hawaii Revised Statutes Section 92-7(a), the commission, when deemed necessary, may hold an executive session on any agenda 3 MINUTES June 3, 2010 item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS 92-4 and shall be limited to those items described in HRS 92-5(a). For the record, an issue came up before this commission today regarding the interpretation of a violation of two rules that are not usually before this commission and a motion was made to go into executive session pursuant to the violation hearing for Lava Lounge, counts 1 and 2. Therefore, pursuant to HRS 92-5(a), the commission is holding this portion of the meeting closed to the public for the purpose of consulting with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities, specifically, in applying Chapter 281 of the Hawaii Revised Statutes as well as the rules and regulations of the Liquor Control Commission of the County of Kauai. The Commission went into executive session at 4:33 p.m. The meeting was reconvened at 4:39 p.m. Commissioner Nakea made a motion to find the licensee responsible for Count 2 and to fine Lava Lounge $250 for violation of Rule 6.2. This motion was seconded by Commissioner Gibson and unanimously carried. Mr. Clark asked for clarification on entertainers being in the premises after 2:00 a.m. Commissioner Nakea stated that he should see a lawyer, but it sounds like an entertainer working that night might not be considered an employee. If that's the case, Mr. Clark stated that they would have to shut down earlier because it sometimes takes them 3 hours to break down their equipment. The Director stated that for the purpose of the rule, an employee would be considered someone who is on the payroll. The employer would be responsible for their unemployment insurance, TDI and medical benefits, as opposed to a contract person who is basically an expense, but is not listed on the payroll. Commissioner Nakea felt that the rule defines an employee as a person who performs any type of activity, whether compensated or not, in conjunction with the operation of the licensed premises. Commissioner Nakea did not believe it was that clear cut. The Commission adjourned the hearings agenda and continued with the agenda for the regular meeting. MINUTES OF THE MEETING OF MAY 6, 2010: A motion was made by Commissioner Pacheco, seconded by Commissioner Gibson, and unanimously carried, to approve the minutes of the meeting of May 6, 2010. 1 . DIRECTOR'S REPORT: (a) INVESTIGATORS' REPORTS. 4 MINUTES June 3, 2010 (b) INCOMING COMMUNICATIONS: (1) From Hinman & Carmichael LLP, Re: Kendall Jackson Winery Point-Of-Sale Material and La Crema Winery Rebate Promotion. (2) From Sweepstakes Consulting LLP, Re: Black Velvet Game Day Gear Sweepstakes. (3) From Bacardi U.S.A., Inc., Re: Bombay Sapphire Artisan Series Contest. (4) From Remy Cointreau USA, Re: Remy Martin V Brand Registration. (5) From Constellation Wines U.S., Re: Clos du Bois Save $1 on Meat, Seafood or Chicken and Save $1 on Grocery Purchase Promotions and Kim Crawford Save $1 on Sushi Promotion. (6) From Marius Hoogewerff, Re: Kalapaki Joe's, Poipu. (7) From Kathie Bedwell, Re: Kalapaki Joe's, Poipu. (8) From Chief Clerk, House of Representatives, Re: House Resolution No. 41 , H.D. 1 . (9) Disturbance Reports from The St. Regis Princeville Resort (2). (c) OUTGOING COMMUNICATIONS: (1) To Lava Lounge, Re: Notice of Hearing and Rescheduling of Hearing. (2) Findings of Fact to Port Allen Sunset Grill & Bar and Pacific Island Bistro. (3) To All Wholesale Licensees, Re: Transfer of License, New Liquor License, Temporary Licenses, Cancellation of License and Change of Firm Name. (4) To Constellation Wines U.S., Re: Kim Crawford Save $1 on Sushi Promotion. (d) EMPLOYEES IN LICENSED PREMISES: Managers and Assistant Managers — See attachment. (e) ACTIONS OF THE DIRECTOR: (1) WAIMEA BREWING COMPANY: Approval of special request for temporary increase of premises to include the lawn area, per diagram submitted, on May 20, 2010 from 3:00 p.m. to 12:00 midnight. (2) KOA TRADING COMPANY: Approval of special request to conduct liquor sampling, per list submitted, at its annual Food Show in the Kauai Beach Resort Jasmine Ballroom, per diagram submitted, on June 28, 2010 from 1 :00 p.m. to 5:00 p.m. (3) KAUAI BEACH RESORT: Approval of special request to allow liquor sampling by Koa Trading Company at its annual Food Show in the Jasmine Ballroom, per diagram submitted, on June 28, 2010 from 1 :00 p.m. to 5:00 p.m. and temporary decrease of premises by excluding the Jasmine Ballroom during the above-stated date and times. 5 MINUTES June 3, 2010 (e) ACTIONS OF THE DIRECTOR: (Cont'd.) (4) DA KINE WINE: Approval of special request to conduct wine tastings, per list submitted, on June 5, 2010 and June 12, 2010 from 4:00 p.m. to 7:00 p.m. (5) ROTARY CLUB OF KAPAA FOUNDATION: Approval of Application No. Free 2010-32 filed on May 18, 2010 by the Rotary Club of Kapaa Foundation for a Free One-Day Special Dispenser Beer & Wine license on June 6, 2010 at Smith's Tropical Paradise, 3-5971 C Kuhio Highway, Wailua, Kauai, Hawaii. (6) SMITH'S TROPICAL PARADISE: Approval of special request for temporary decrease of premises on June 6, 2010. (f) INFORMATIONAL MATTERS. Commissioner Nakea made a motion, which was seconded by Commissioner Pacheco, and unanimously carried, to approve the above Director's Report. 2. CHANGE IN CORPORATE OFFICERS: ZELO'S, INC. (Bouchons/Sushi Blues): Addition of Jean-Michel Gabet, Director. A motion was made by Commissioner Pacheco, seconded by Commissioner Gibson, and unanimously carried, to approve the above change in corporate officers of Zelo's, Inc. 3. TRANSFER OF STOCK: ZELO'S, INC. (Bouchons/Sushi Blues): Transfer of stock owned by Theresa Jure back to the corporation, resulting in James E. Sclafani becoming the sole stockholder owning 25% or more of outstanding capital stock. A motion was made by Commissioner Nakea, seconded by Commissioner Pacheco, and unanimously carried, to approve the above transfer of stock resulting in James E. Sclafani becoming the sole stockholder owning 25% or more of outstanding capital stock of Zelo's, Inc. 4. CANCELLATION OF TEMPORARY LICENSE: THE NEW CANNERY: Effective May 21 , 2010, cancellation of Temporary License No. T 2010-06 issued to C.O.R. LLC dba The New Cannery. 6 MINUTES June 3, 2010 Commissioner Pacheco made a motion, which was seconded by Commissioner Gibson, and unanimously carried, to accept the above cancellation of Temporary License No. T 2010-06. 5. CANCELLATION OF LICENSE: OLDE CANNERY FUEL & MART: Effective May 21 , 2010, cancellation of Retail Dealer General License No. 4G-038 issued to Olde Cannery Fuels Co. LLC dba Olde Cannery Fuel & Mart. A motion was made by Commissioner Pacheco, seconded by Commissioner Gibson, and unanimously carried, to accept the cancellation of Retail Dealer General License No. 4G-038 issued to Olde Cannery Fuels Co. LLC dba Olde Cannery Fuel & Mart. 6. TRANSFER OF LICENSE: CASA DI AMICI RESTAURANT: Application No. 2010-106 was filed on May 13, 2010 for transfer of Restaurant General License No. 2G-053 (live entertainment but no dancing, with conditions) from Dikilato L.L.C. dba Casa di Amici to Keahi Yates, LLC dba Casa di Amici Restaurant located at 2301 Nalo Road, Koloa, Kauai, Hawaii. Commissioner Gibson made a motion, which was seconded by Commissioner Pacheco, and unanimously carried, to accept Application No. 2010-106 for publication and public hearing and to schedule the public hearing on Thursday, July 1 , 2010 at 4:00 p.m. in Meeting Room #3 of the Lihue Civic Center, Mo'ikeha Building, 4444 Rice Street, Lihue, Kauai, Hawaii. 7. DIRECTOR'S SALARY. The Director stated that the Mayor's letter describes the County's furlough plan. Pursuant to Section 16.5 of the County Charter, the commission is authorized to appoint the Director of the department. And as the appointing body of the Director's position, this commission needs to take action to effectuate a 9.23% decrease in the Director's salary. Chair Matsunaga asked what would happen if the commission does not agree to the reduction. The Director explained that the County budget was passed, based on cost savings from furloughs. Salary reductions and savings on electrical costs due to office closures have already been used to calculate and establish the budget for fiscal year ending June 30, 2011 . 7 MINUTES June 3, 2010 Discussion on other commission's actions followed. Those affected are the Police, Fire, Planning, and Civil Service commissions. The Director believed the Fire Commission will look at this item next Tuesday and the Police Commission has deferred acting until June 30, which is cutting it close because the reduction takes effect on July 1 . Commissioner Nakea made a motion to defer acting on the Director's salary reduction until the next meeting. This motion was seconded by Commissioner Pacheco and unanimously carried. ADJOURNMENT: There being no further business to transact, Chair Matsunaga adjourned the meeting at 4:48 p.m. Respectfully submitted, Christine Nakaahiki Commission Secretary 8