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HomeMy WebLinkAbout2021_0204 Liquor Open Session - APPROVED.pdfALWIFIFIR-i-i'611EM COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved with amendments, see minutes of 4-15-21. Board/Commission: LIQUOR CONTROL COMMISSION Meeting Date February 4, 2021 Location Tele Conference via Microsoft Teams Audio Start of Meeting: 10:02 a.m. End of Meeting:12:05 p.m. +1 469-848-0234, Conference ID: 511 064 13# Tele Chair William Gibson, Vice Chair Dee Crowell Members: Shirley Akita, Leland Kahawai, Gerald Matsunaga, Randall Nishimura, Gary Present Pacheco Also: Liquor Control Staff: Acting Director Cecilio Baliaris Jr., Liquor Clerical Assistant Malialani TM Kelekoma; Ellen Ching Administrator Boards & Commission, Deputy County Attorney Charles Foster Excused Absent SUBJECT DISCUSSION ACTION Call To Order Roll Call Acting Director Cecil Baliaris called roll, noting 7 members were present constituting a quorum. Announcements Next Scheduled Meeting: Special Meeting Thursday, February 11, 2021— 10:00 a.m. via Tele-Conference Thursday, February 18, 2021— 10:00 a.m. via Tele-Conference. Approval of Mr. Pacheco moved to Agenda approve the Agenda. Mrs. Akita seconded the motion. Motion carried 7:0. Approval of a. Open Session Minutes of January 7, 2021 Motion #1 Meeting Minutes Correction: Page (9) Item 5. C) Motion was made by Commissioner Matsunaga Mr. Nishimura moved to and seconded by Commissioner Nishimura approve minutes of January 7, 2021 with amendments. Mrs. Akita seconded the motion. Liquor Control Commission Open Session February 4, 2021 Page 2 SUBJECT DISCUSSION ACTION b. Executive Session Minutes of January 7, 2021 Motion #2 Mrs. Akita moved to defer the approving of minutes for January 7, 2021, Executive Session till the end of business day. Mr. Nishimura seconded the motion. Motion carried 7:0. Motion #3 c. Special Meeting Minutes of January 8, 2021 Mr. Nishimura moved to approve Special Meeting minutes of January 8, 2021. Mrs. Akita seconded the motion. Motion carried 7:0 d. Executive Session Minutes of January 8, 2021 Motion #4 Correction: Page (6) 4t" paragraph change to outstanding. Mr. Nishimura moved to defer Executive Session minutes of January 8, 2021. Mr. Pacheco seconded the motion. Motion carried 7:0. Public Testimony Heidi Beers -Hill —Email received on 1/21/2021 after Public Hearing was closed — Opposition — Kai Bar Coffee Roasters Lani Gay Watson - Letter received on 1/14/2021 - Not against would like to know hours of Liquor Sales Denise Ham Young - Email received 1/19/2021 in Support of Wainiha Country Market Shain Ham Young -Email received 1/19/2021 in Support of Wainiha Country Market Sharon Gottfried - Email received 1/21/2021 in Support of Wainiha Country Market Liquor Control Commission Open Session February 4, 2021 Page 3 SUBJECT DISCUSSION ACTION Dadly K Ham Young -Email received 1/21/2021 in Support of Wainiha Country Market Hayley K Ham Young -Giorgio -Email received 1/21/2021 in Support of Wainiha Country Market Mark Barbanell — Email received 1/22/2021 in Support of Wainiha Country Market 1. CONTINUANCE AND DISCUSSION ON APPROVAL OF LICENSE FOR VIVA KAI LLC dba KAI BAR. PUBLIC HEARING CLOSED ON JANUARY 21, 2021 (continued from January 21, 2021 meeting): Mr. Charles foster stated the Hearing for Viva Kai LLC has been closed, you will not be taking any testimony for this Licensee. Commissioner Matsunaga stated the parties were to come to some type of resolution for the issues. Investigator Herman commented that the Public Hearing for Wainiha Country Market has not been open. The question that we are asking Mrs. Kelekoma is, is there any testimony that are not concerning Viva Kai or Wainiha Country Market at this time. Commissioner Nishimura stated according to the County Attorney the Public Hearing for the Viva Kai LLC application is closed. He asked Mr. Foster is there a way the Hearing can be re -opened to hear additional testimonies. Mr. Foster replied, he will check the rules and will let the Commission know. Commissioner Akita responded, at the last meeting the Commission left it to the principals involved to meet and to come to some kind of consensus or a compromise. She expected to hear some kind of reporting from the applicant. Whether he was successful in coming to some type of agreement that would be Liquor Control Commission Open Session February 4, 2021 Page 4 SUBJECT DISCUSSION ACTION acceptable for both parties. Ms. Ching replied since no one from the Public which is on wishes to testify on any other item except for Viva Kai and Wainiha Country Market. You may move forward to the first agenda item. A lot of the points in which the Commissioners are bringing up may be answered or discussed in the first agenda item on the Continuance and discussion on Approval of License for Viva Kai LLC dba Kai Bar. Chair Gibson stated we will need to satisfy the question whether the Public Hearing can be re -opened for the approval of license for Viva Kai. Vice Chair Crowell stated you may reconsider the decision of the Commission at the same meeting or next meeting. Mr. Foster agreed that looks like the procedure that would be required, the decision was already reached so testimony would be closed. You could reconsider the decision and make a motion. Chair Gibson asked, do we have a motion to reconsider. Ms. Ching asked Chair Gibson and Mr. Foster is the motion to reconsider closing? That was the only motion that was made, to close the hearing. Vice Chair Crowell and Mr. Foster both said yes. Ms. Ching stated she wanted to make sure the Commissioners are clear that there was no decision made on whether the license was approved or not. The only decision that was made was to close the public hearing. If the Commission wishes to open the hearing again, they may entertain a motion to do so at this point. Liquor Control Commission Open Session February 4, 2021 Page 5 SUBJECT DISCUSSION ACTION Motion #1 Mr. Foster advised that is correct and stated you don't have to re -open the Public Mr. Nishimura moved to Hearing to hear the results of the discussions from the parties to negotiate. If you are reconsider the closure of just hearing that, that would be appropriate. Should the Commission want to consider the Public Hearing for the other letters or testimony, you would have to re -open. approval of License for Viva Kai LLC dba Kai Bar. Chair Gibson re -opened the Public Hearing for Viva Kai LLC dba Kai Bar. Do we have a Mr. Crowell seconded the Department Report on what was discussed between the parties? motion. Motion carried 7:0. Acting Director Cecil Baliaris Jr. stated the Commission has received the results of the Motion #2 meeting that was held. The consensus addressed the closing time of the restaurant at Mr. Nishimura moved to 9:00 p.m. any other concerns was not discussed. Testimonies should be limited to accept the supplemental three minutes. report and letter sent to the Department for the Investigator Herman stated there was a letter from the owner requesting a stipulation record and close the Public be put on his license and a supplemental report from that meeting that was sent out Hearing for this matter. to the Commissioners. Mrs. Akita seconded the motion. Motion carried 7:0. Chair Gibson closed the Public Hearing for Viva Kai LLC dba Kai Bear. Motion #3 Mr. Matsunaga moved to approve Application # 2021-011 for Viva Kai LLC dba Kai Bar subject to the agreements of the parties to be closed at 9:00 p.m. Mrs. Akita seconded the motion. Motion carried 7:0. Liquor Control Commission Open Session February 4, 2021 Page 6 SUBJECT DISCUSSION ACTION 2. WAINIHA COUNTRY MARKET dba WAINIHA COUNTRY MARKET: Application No. 2021-012 was filed on October 7, 2020 by WAINIHA COUNTRY MARKET dba WAINIHA COUNTRY MARKET for a New Class and Kind (Retail Dealer Beer & Wine) at the former Wainiha General Store, located at the intersection of Kuhio Highway and Ananalu Road in Wainiha. The address is 5-607 Kuhio Highway, Wainiha, Kauai, Hawaii. The Commission accepted Application No. 2021-012 for publication and public hearing on December 3, 2020 and ordered to print notice of public hearing in The Garden Island newspaper on Wednesdays, December 9 and December 16, 2020, scheduling the public hearing on February 4, 2021 at 10:00 a.m. or shortly thereafter via Microsoft Teams conferencing only. Acting Director Cecil Baliaris Jr., stated all legal requirements for today's Public Hearing have been met. Via affidavit the applicant has sent out notices to forty five property owners or lessees on record within 500 feet of the proposed premises. Up until the Public Hearing the Department has received 8 letters in support and 1 letter of opposition for this application. Chair Gibson opened the Public Hearing for Application No. 2021-012. Who is representing this application? Joelle, James, James Jr. and Gabrielle Edwards were present to represent Wainiha Country Market. Chair Gibson asked what your positions are. Ms. Edwards replied they are all equal partners. Chair Gibson asked if they received a copy of the Investigator's Report. Liquor Control Commission Open Session February 4, 2021 Page 7 SUBJECT DISCUSSION ACTION Ms. Edwards responded, yes. Chair Gibson asked are there any comments on this report. Ms. Edwards did not have any comments. Chair Gibson asked is there anyone here that would like to object to this application. Please state your name and nature to this objection. Chair Gibson asked is there anyone here that would like to speak on behalf of this application. Does the Commission have copies of the testimonies that was submitted by letter? Commissioners responded yes. Commissioner Akita stated she truly appreciated the initiative of the people that provided the written testimony in which she was able to read prior to today's meeting. The one that had protested and ask for disapproval and that the establishment will be able to clear that. It seems there is a misrepresentation in what he wrote to us. Chair Gibson asked are there any other comments or questions. Commissioner Nishimura stated we received various communications by email do Mrs. Akita moved to those documents get automatically included on the record. approve Application 2021- 012 for Wainiha Country Mr. Foster responded, yes they are part of the record. Market. Mr. Kahawai seconded the motion. Chair Gibson closed the Public Hearing for Application 2021-012. Motion carried 7:0. Liquor Control Commission Open Session February 4, 2021 Page 8 SUBJECT DISCUSSION ACTION 3. DIRECTOR'S REPORTS: a) INVESTIGATORS' REPORTS: b) ACTIONS OF THE DIRECTOR: c) INFORMATIONAL MATTERS Commissioner Matsunaga requested discussion on Acting Director Cecil Baliaris Ys. report. He inquired if there were any concerns expressed by the Council regarding the budget. Acting Director Cecil Baliaris Jr., replied this meeting was only the Budget Committee, they will be meeting with the County Council in March. Commissioner Matsunaga asked did they express any concerns regarding your submittal. Acting Director Cecil Baliaris Jr., replied negative they have applauded on what they did and they met their goal and would like to look into the fees. Should there be any changes to the fees it would be the Commission and not the Budget Committee. Commissioner Matsunaga replied they had no concerns in regards to your budget proposal. Mr. Pacheco moved to approve Director's Report a Acting Director Cecil Baliaris Jr., replied no. through c. Mr. Crowell seconded the motion. Commissioner Matsunaga replied that is what he wanted to find out. Motion carried 7:0. Liquor Control Commission Open Session February 4, 2021 Page 9 SUBJECT DISCUSSION ACTION 4. TRANSFER LIQUOR LICENSE: a) KBR MANAGER, LLC dba KAUAI BEACH RESORT: Application No. 2021-015 was filed on January 6, 2021 by KBR Manager, LLC dba Kauai Beach Resort for a transfer of Hotel License No. 12G-003 from TEAM FILAMENT, LLC to KBR Manager, LLC dba Kauai Beach Resort located at 4331 Kauai Beach Drive, Hanamaulu, Kauai, Hawaii. Deposited $275. Mr. Nakamura Attorney, was present to represent Application No. 2021-015 with him on the call is Mr. Rob Robinson, Mr. Robert Minicola, General Manager. They have read the Investigator's Report and have no questions or comments. He would like to thank Investigator Herman and the staff there for their quick and very helpful processing of this application. Investigator Herman commented this would also be for approval of the temporary license. Chair Gibson asked is there a Public Hearing for this. Investigator Herman commented this is for acceptance for Publication, Public Hearing and to approve a Temporary License in the interim. Commissioner Akita asked Counsel, for Transfer of Liquor License, do we need to have Publication and Public Hearing. Mr. Foster advised he is checking. Mr. Nakamura replied that is the standard procedure on a transfer application. That is what he does on Maui and Honolulu. Liquor Control Commission Open Session February 4, 2021 Page 10 SUBJECT DISCUSSION ACTION Commissioner Akita asked do you have a Public Hearing for a Temporary License. Investigator Herman advised he can answer all of those questions, in the matter of Hotel Licenses, a dispenser class license a Public Hearing is required. Your approval for a temporary license it is not a Public Hearing and is to be handled today so the Licensee can continue to operate until the Public Hearing. Commissioner Akita wants to be sure our Attorney concurs. Mr. Foster commented HRS 281-32 the representations are correct under the code. Chair Gibson replied meaning the Public Hearing for the transfer of license and what about the granting of temporary license. Mr. Foster replied HRS 281-32 concerns temporary license and 281-32 sub 7 the sections of the code concerning Public Hearings shall not apply to any application for a Temporary License. So no Public Hearing is needed for a Temporary License. Commissioner Akita stated in the past practice we have had one report for the approval for Publication and Public Hearing and the transfer of License. A second agenda item was for a granting of a temporary license. In this particular case they chose to put both together. As she mentioned we do not need to have a Public Hearing for the temporary license. When we make our motion we need to make two Motion #1 different motions. Mr. Crowell moved to grant a transfer for a Public Commissioner Nishimura stated for the record that his firm is doing repairs at Kauai Hearing for Application No. Beach Resort, he will recuse himself if necessary from voting on any action items 2021-015. Mr. Pacheco regarding this matter. seconded the motion. Motion carried 6:0. Liquor Control Commission Open Session February 4, 2021 Page 11 SUBJECT DISCUSSION ACTION Motion # 1 was withdrawn, Mr. Crowell withdrew his motion and Mr. Pacheco Motion #2 withdrew his second. Mr. Crowell moved to schedule a Public Hearing Commissioner Matsunaga asked are we able to act on these items if they are not on and Publication for the agenda. Application No. 2021-015 KBR Manager, LLC dba Mr. Foster replied it's contained in the report, he is looking at the agenda. It does Kauai Beach Resort. Mr. not state that. Prudence would indicate that you postpone the temporary license Kahawai seconded the and notice it. Motion carried 6:0. Commissioner Pacheco stated if we don't approve the temporary they cannot serve liquor. Chair Gibson replied, it interrupts their business. Mr. Foster replied the whole issue should be continued and placed on a future agenda as separate items and the temporary is noted on the agenda. Commissioner Akita asked is this a failure on our part that we did not put it on two separate agenda items, I would hate that they would not have the opportunity to continue serving and losing revenue because of our failure. Acting Director Cecil Baliaris Jr. responded it was our mistake and it will be addressed. Commissioner Akita replied with that being the case what is our recourse in assisting the establishment. Liquor Control Commission Open Session February 4, 2021 Page 12 SUBJECT DISCUSSION ACTION Mr. Foster replied would like to ask the Representative from the establishment how continuing, would impact the business. Mr. Nakamura asked Mr. Minicola when they plan to start serving liquor. Mr. Robert Minicola General Manager responded the inconvenience has been since January 1, 2021 and going on to the second month. If we have to wait till the next meeting that would take us into March. That would mean several employees would not have work hours for another month and lack of revenue. It puts us in a real bind at this point, we waited this long and still have not been able to serve. Mr. Foster replied there was no opposition to the transfer, looking at it in terms, I will make a proposal to the Commission we deem the temporary license as part and partial of a transfer and consider them together. The motion should mention the transfer and the temporary license. They could be pass together as one motion. Commissioner Akita responded to Mr. Foster you are suggesting that the Publication and Public Hearing for the transfer and the granting of a temporary license. Mr. Foster replied, that is correct. Commissioner Akita replied by approving both in one motion, the first part will be for Publication and Public Hearing and the temporary license would be approved. Mr. Foster replied, that is correct and his suggestion. Commissioner Akita replied the people that made the original motion to rescind it again and make a new motion. Liquor Control Commission Open Session February 4, 2021 Page 13 SUBJECT DISCUSSION ACTION Vice Chair Crowell stated for the third time, he will not make that motion, he does not like it. Commissioner Akita commented it is our mistake it will prevent people in continuing in the service that they provide at their establishment. It's a good compromise on our behalf. Ms. Ching commented we do have a special meeting scheduled for next week Thursday. There is an option to place everything on next week Thursday's meeting on the agenda properly. Should you wish to do that and if our County Attorney is in agreement with that. Commissioner Akita she was looking at the time limits of this according to what the General Manager stated it involves employees as well as their own revenue. If it's agreeable I would like to have this motion passed or deferred to next meeting. She thinks we should move forward to what was suggested. She asked Chair Gibson for rescinding of the original motion. Chair Gibson asked who made the original motion. Chair Gibson called for a 10 minute recess @ 10:49 a.m. Commissioner Kahawai left Open Session @ 11:07 a.m. Chair Gibson called Session back to order @ 11:20 a.m. Mr. Foster stated they were able to put their heads together with the Department as well. Mr. Foster stated that Commissioner Crowell is correct, he mentioned he is a litigation attorney and looks at things in terms of risks. Is anyone opposing this, is Liquor Control Commission Open Session February 4, 2021 Page 14 SUBJECT DISCUSSION ACTION anybody gonna sue, fine let's just stamp it and go, that is not the correct way to do it. Commissioner Crowell has been involved in Commissions that are hotly contested. He has the correct view, we have looked at the statues and codes there is a way to work around this. Section 281-31 of the Hawaii Revised Statues concerns special licenses sub (j) Special license may be granted for the sale of liquor for a period not to exceed three days, pursuant to Commission Rule that may be approved by the administrator and the Commission Rule 2.16 authority invested to the Director. I will let someone from the Department describe exactly what the mechanics on how that will work, that is your legal authority for what they are going to propose. He appreciates Commissioner Crowell for his statement. Commissioner Akita asked are we back to whether we move on the current motion that was moved and seconded or whether it would be rescinded. Am I correct? Ms. Ching asked Chair Gibson to have the department summarize the discussion and propose a solution to the Commission for the issue that they are facing at this time. Chair Gibson called upon the Department to summarize the discussion and proposal on what the Commission is to do. Commissioner Akita asked Chair Gibson when you say Department who are you referring to/ Chair Gibson replied the Acting Director, Boards and Commissions and County Attorney. Liquor Control Commission Open Session February 4, 2021 Page 15 SUBJECT DISCUSSION ACTION Investigator Herman spoke on behalf of the Department and they proposed the following: Agenda Items for the Transfer and Temporary be moved to the Special Commission Meeting on February 11, 2021. In the interim asking the applicant to put in three special license request that would cover the time period till the 11t" in which Acting Director Cecil Baliaris Jr. may approve those license. There would be a cost of $100.00 for each 3 day license. The total cost will be $300.00 to last until the 11tn when the temporary would be voted upon. That is the Department's proposal. Chair Gibson asked if the County Attorney weighed in on this. Mr. Foster that is correct it is supported by the authorities that was citied to you. Chair Gibson asked if the cost could be waived. Mr. Foster replied, it is part of the rule and cannot be waived. Chair Gibson stated, I think we are punishing them for our error. Chair Gibson asked are there any comments from the Commission. Chair Akita asked what the motion was that Vice Chair Crowell made. Vice Chair replied to schedule Publication and Public Hearing. Commissioner Akita was it for the Publication and Public Hearing. Vice Chair Crowell replied yes, and I wouldn't rescind my motion. Investigator Herman correction to his proposal we are asking for the Publication and Liquor Control Commission Open Session February 4, 2021 Page 16 SUBJECT DISCUSSION ACTION Public Hearing to be approved today and the transfer at the next meeting. Vice Chair Crowell replied, that was approved. Commissioner Akita asked Vice Chair Crowell was there a vote on your motion. Vice Chair Crowell stated he believes so. There is no further action required of the Commission. Commissioner Akita asked Mrs. Kelekoma to check on that. Vice Chair Crowell mentioned we went on to the temporary, when Commissioner Matsunaga pointed it out. Mrs. Kelekoma replied, yes it was voted on. There were questions and the temporary was not on the agenda. Commissioner Akita commented it was voted on the Publication and Public Hearing. Mrs. Kelekoma responded, yes. Vice Chair Crowell stated no further action is required from the Commission. Chair Gibson replied except for the Temporary License. Vice Chair Crowell replied, staff will schedule that. Chair Gibson asked Investigator Herman is that correct? Liquor Control Commission Open Session February 4, 2021 Page 17 SUBJECT DISCUSSION ACTION Investigator Herman asked if there needs to be a vote to deferring the temporary to the 11tn meeting. Vice Chair Crowell responded it is not on the agenda. Commissioner Akita stated no further action is required from the Commission it is not on the agenda. Ms. Ching advised Chair Gibson your Commission is correct, they can move forward, there is no further action. We will be placing on the agenda on next week Thursday on the 11tn Commissioner Akita should they go by the daily thing they can decide whether they want to do it and pay for it. This is between the Acting Director Cecil Baliaris Jr. and them. Mr. Fisher responded that is correct. Chair Gibson asked do we need any more action on this item. b) JOHNNY'S WINGZ N TINGZ, LLC dba JOHNNY'S WINGZ N TINGZ: Application Motion No. 2021-017 was filed on December 8, 2020 by JOHNNY'S WINGZ N TINGZ, Mrs. Akita moved to LLC dba JOHNNY'S WINGZ N TINGZ for a transfer of (Live Entertainment and approve a transfer for a Dancing) No.5G-023 from TREES LOUNGE to JOHNNY'S WINGZ N TINGZ, LLC Publication and Public dba JOHNNY'S WINGZ N TINGZ located at 440 Aleka Place, Unit#1, Kapa'a, Hearing on Application No. Kauai, Hawaii. Deposited $335.00 2021-017. Mr. Pacheco seconded the motion. Motion carried 6:0. Liquor Control Commission Open Session February 4, 2021 Page 18 SUBJECT DISCUSSION ACTION 5. DISCUSSION AND UPDATE ON THE HIRING OF THE DIRECTOR OR LIQUOR CONTROL EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-4 and §92-5 (a) and (2) and Mr. Nishimura moved to go (4), the purpose of this Executive Session is for the deliberation and decision -making by the into Executive Session. Mrs. Commission relating to the recommendations as presented by the Permitted Interaction Akita seconded the motion. Group on the hiring of a new Director of Liquor Control and other related items, and to Motion carried 6:0. consult with its attorney on questions and issues pertaining to the Commission's powers, duties, privileges, immunities and liabilities as they may relate to this agenda item. 6. PRESENTATION OF THE RECOMMENDATIONS OF THE PERMITTED INTERACTION GROUP (PIG) ON THE INTERVIEW QUESTIONS AND A SCORING TOOL RELATED TO THE HIRING OF THE DIRECTOR OF LIQUOR CONTROL EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-7(a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to H.R.S. §92-4 and shall be limited to those items described in H.R.S. §92-5(a). RETURN TO OPEN SESSION Returned to Open Session @ 12: 05 p.m. ROLL CALL FOR THE RETURN TO OPEN SESSION Investigator Herman called roll, noting 6 members were present constituting a quorum. Liquor Control Commission Open Session February 4, 2021 Page 19 SUBJECT DISCUSSION ACTION Investigator Herman advised the Commission that he spoke with both Licensees and have come with an agreement from both. RATIFY THE ACTIONS TAKEN IN EXECUTIVE SESSION Mr. Nishimura moved to ratify the actions taken in Executive Session. Mr. Pacheco seconded the motion. Motion carried 6:0. With no further business to conduct, Chair Gibson called for a motion and a second to adjourn Mr. Pacheco moved to Adjournment the meeting. adjourn the Meeting. Mr. Matsunaga seconded the motion. Motion Carried 6:0 At 12:05 p.m. the meeting was adjourned. Submitted by: Malialani TM Kelekoma, Liquor Clerical Assistant Reviewed and Approved by: ( ) Approved as circulated. (X) Approved with amendments. See minutes of 4 15 2021 meeting. William Gibson, Chair