A liquor violation against the Ogden club Brewskis, carrying a $3,000 fine and 10-day closure, has other bar owners concerned that law enforcement could be robbing them of due process.
In a two-year-old case, agents for the state cited the bar for serving a minor, but did so several days after the club deleted information from the scanner it is required to use to verify driver licenses and after its surveillance tape was recorded over.
Without being able to use such evidence in a timely manner, club owners say there’s no way to defend themselves when police issue liquor citations weeks after an alleged violation.
When an attorney for Brewskis made that plea earlier this week before commissioners with the Utah Department of Alcoholic Beverage Control, they upheld a hearing officer’s decision and rejected it, although the vote wasn’t unanimous.
Commissioner Kathleen McConkie Collinwood, an attorney, voted to dismiss the case, citing concerns that the club wasn’t granted due process.
But fellow commissioner David Gladwell, also an attorney, noted that "no evidence is perfect." And commission chairman Richard Sperry said that to protect itself, the club should have "kept the tapes forever."
The practicality of that was questioned after the meeting by Salt Lake-based consultant Shane Larsen with Executive Security Co., who said it is cost prohibitive to retain surveillance tapes for unlimited periods of time. He added that he knows of no company that does so.
Civil-rights attorney Brian Barnard said in an interview that without the tapes to prove whether the minor had been served, Brewskis was left in an untenable position. "By postponing the issuance of the ticket, law enforcement eliminated access to that evidence, which if nothing else is unprofessional and unfair."
Brewskis owner Heidi Harward said she’ll appeal the case to state court, "even though it will cost a lot more money than settling. This isn’t the way law enforcement should be treating people. We should be working together rather than having them play with people’s livelihoods."
Tracy Archuleta, owner of Club Rendezvous in West Valley City who was at Tuesday’s DABC meeting, echoed Harward. "We do everything we can to comply with the law, but law enforcement doesn’t always reciprocate by being fair. We’re worried about being blindsided."
Dwayne Baird, spokesman for the Department of Public Safety, said he believes the delay in issuing the Brewski was an unusual instance "because we make every effort to process cases in a timely manner. Sometimes the workload is great, but we understand that it’s in the public’s interest and establishments’ interest that cases are resolved as quickly as possible."
The case began with a traffic stop in the early morning hours of March 18, 2010, when a Utah Highway Patrol trooper pulled over a Mazda Miata on suspicion of faulty equipment. The trooper smelled alcohol on the occupants and administrated a breath test to a 19-year-old passenger in the vehicle, who registered a blood alcohol level of .069 percent (the legal limit for being impaired is .08).
The trooper cited the woman for possession of alcohol by a minor, and asked where she had gotten it. She replied that she and the 22-year-old driver had walked into Brewskis, where a bartender served her a Long Island iced tea. The officer then referred the case to the Department of Public Safety’s liquor enforcement team.
Two weeks later, two agents visited Brewskis, but by then the bar had recorded over its surveillance tapes, which were kept for four days, and its scanner information had been deleted (which is required by law every seven days). The bar manager insisted that no minors were served.
Hearing officer Mark Kleinfield noted that the night in question was Saint Patrick’s Day, a busy holiday for bars, so the manger’s recollection of events could have been faulty. Although the manager said extra security had been hired to keep minors out of the bar, Kleinfield ruled that the testimony of the driver and his minor passenger was more credible.
In making his case to DABC commissioners, Brewski attorney Ron Yenich said that the trooper could have easily driven to Brewskis, less than two blocks away from the traffic stop, to verify the woman’s story but didn’t. He also questioned the agents’ two-week delay, but to no avail.
Hearing officer Kleinfield noted in his decision that although the case was not "handled with the exactness of a ‘CSI’ TV episode, the investigation appears to have been handled appropriately."
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