HomeMy WebLinkAboutMINUTES Town Board Special Meeting 1989-01-25J
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Minutes of a ......$6)e.qi.41 ..... meeting of the Board of Trustees of the Town of Estes
Pork, Lorimer County, Colorado. Meeting held in the Town Hall in said Town of Estes Park
on the 25th day of January , A. D. 19J3P. at regular meeting
hour.
Meeting coned to order by Mayor
H. Bernerd Dannels
Present: Mayor H. B. Dannels
Also Present:
969,7'1:
Trustees:
Gary F. Klaphake,
Town Administrator
Gregory A. White,
Town Attorney
Vickie O'Connor,
Town Clerk
David J. Racine,
Police Chief
David Sauter,
Liquor Enforcement
V. Rodney Hallberg,
Special Prosecutor
Norbert L. Aldrich,
David Barker,
Polly Garrett,
David Habecker,
George J. Hix
Absent: Milan A. Dickinson,
Trustee
Investigator
Mayor Dannels called a special meeting of the Board of Trustees to
order at 1:33 P.M. to conduct a "show cause" liquor hearing for Nita S.
Simmerman, dba THE BACK FORTY, Hotel and Restaurant Liquor License
#03-42194-002, 800 Moraine Avenue, Estes Park, Colorado.
Town Attorney White reported the Order to Show Cause and Notice of
Hearing was issued December 20, 1988 to Nita Sue Simmerman, The Back
Forty, 800 Moraine Avenue, License #03-42194-002. The license was
applied for on July 12, 1988.
Special Prosecutor V. Rodney Hallberg stated three (3) witnesses would
offer testimony, Town Clerk O'Connor, Police Chief Racine, and Liquor
Investigator David Sauter. All three witnesses were sworn -in by the
Court Reporter.
Clerk O'Connor offered testimony relative to the Licensee's liquor
license application file.
Chief Racine offered testimony relative to the criminal record of Ted
Simmerman and the alleged drug -related felony charges currently
pending. Chief Racine confirmed the criminal record of Ted Simmerman,
as referred to in the Mountain Man Restaurant Show Cause Hearing, was
the same Ted Simmerman as described herein. Chief Racine also
identified sample liquor bottles seized from The Back Forty which were
held in evidence by the Police Department. Excessive noise violations
have occurred, with convictions taking place on September 29, 1988 and
October 15, 1988 in Municipal Court; the remaining violations are
pending.
Investigator Sauter offered testimony relative to his on -site
investigation of The Back Forty which occurred November 21, 1988, and
subsequent Investigative Report dated November 28, 1988. Mr. Sauter
identified sample liquor bottles which he had confiscated, and stated
they were in the same condition as when confiscated; various bottles
were presented for inspection by the Board of Trustees.
Prosecutor Hallberg entered the following documents for the record of
proceedings:
Copy of the Warranty Deed dated July 5, 1988 from Jan and
Beverly Slager to Ted E. and Nita Sue Simmerman.
Copy of the Deed of Trust dated July 5, 1988 from Ted E. and
Nita Sue Simmerman to Jan and Beverly Slager in the amount of
$365,000.
Board of Trustees - January 25, 1989 - Page two
• Copy of the Quit Claim Deed dated July 11, 1988 from Ted E.
Simmerman to Nita Sue Simmerman.
• Copy of the Quit Claim Deed dated December 21, 1988 from Ted
E. and Nita Sue Simmerman to Jan and Beverly Slager.
Copy of the Addendum to Quit Claim Deed dated December 21,
1988 by Ted E. and Nita Sue Simmerman to Jan and Beverly
Slager in lieu of foreclosure.
• Copy of the Bill of Sale dated December 21, 1988 from Ted E.
and Nita Sue Simmerman to Jan and Beverly Simmerman.
Prosecutor Hallberg stated the record clearly indicates Ted E.
Simmerman was actively engaged in the business from the time the liquor
application was submitted to the present. Ms. Simmerman was obligated
to disclose Mr. Simmerman's involvement. Prosecutor Hallberg stated
sufficient grounds were presented and evidenced, and requested the
Board of Trustees revoke Liquor License #03-42194-002 issued to Nita
Sue Simmerman, dba The Back Forty.
Mayor Dannels recessed the hearing at 1:54 P.M. to allow consultation
by the Board of Trustees and Town Attorney White.
Mayor Dannels reconvened the hearing at 1:57 P.M. Town Attorney White
read in full the following "Findings of Fact":
1. On December 20, 1988, an Order to Show Cause and Notice of
Hearing was issued to Nita S. Simmerman, dba THE BACK FORTY,
800 Moraine Avenue, Estes Park, Colorado 80517, License No.
03-42194-002.
2. An Affidavit of Service confirmed that Nita S. Simmerman was
personally served (by her husband, Ted Simmerman), at her
residence at 2915 Devil's Gulch Road on December 21, 1988.
3. A Certificate of Mailing identified that Nita S. Simmerman
was served by Certified Mail on December 21, 1988.
4. At 1:30 P.M. January 25, 1989, the Board of Trustees convened
for a show cause hearing and neither Nita Sue Simmerman, nor
her attorney, were present.
5. The Board of Trustees heard testimony from three (3)
individuals: Town Clerk O'Connor, Police Chief Racine, and
Liquor Investigator David Sauter.
Based upon the testimony, and the documents and other evidence
presented at this show cause hearing, the Board of Trustees finds the
following statute violations:
1. 12-47-130(1)(a): In violation of Regulation 47-105.1(A),
each person licensed under this article shall conduct his
licensed premises in a decent, orderly and respectable
manner, and shall not permit on his licensed premises
profanity, rowdiness, undue noise, or other disturbances or
activity offensive to the senses of the average citizen, or
to the residents of the neighborhood in which the licensed
establishment is located. TO -WIT: Convictions for
disturbing the peace were obtained from the Municipal Court
on September 29, October 15, and October 29, 1988.
2. 12-47-111(1)(a)(VI): No license provided by this article
shall be issued or held by any person employing, assisted by,
or financed in whole or in part by any person who is not of
good character and reputation satisfactory to the respective
licensing authorities. TO -WIT: Based upon testimony given
by Chief Racine, and documentary evidence submitted by
Special Prosecutor Hallberg to the Board, the Licensee, Nita
Sue Simmerman, was assisted and/or financed by Ted Simmerman
in The Back Forty. Ted Simmerman has a previous felony
conviction and has been charged with another felony which was
Board of Trustees - January 25, 1989 - Page three
committed with the licensee's telephone as a connection for a
drug transaction.
3. 12-47-111(1)(a)(VII): No license provided by this article
shall be issued to or held by any person unless he is with
respect to his character, record, and reputation,
satisfactory to the respective licensing authority. TO -WIT:
On November 28, 1988, licensee had State of Colorado
Distraint Warrants issued against her for past -due State
Taxes owed.
4. 12-47-130(1)(a): In violation of Regulation 47-106.2(A)(1)
after issuance of a license, the licensee shall make no
physical change, alteration or modification of the licensed
premises which materially or substantially alters the
licensed premise, without the prior written consent of the
local and state licensing authorities. This includes any
increase or decrease in the total size or capacity of the
licensed premises. TO -WIT: On November 21, 1988, while on a
routine inspection, Investigator Sauter observed that the
licensee was storing their liquor in an area that was not
licensed at the time of their license approval.
5. 12-47-109: Each licensee shall keep a complete set of books
of account, invoices and all other records necessary to show
fully the business transactions of such licensee. TO -WIT:
On November 21, 1988, Investigator Sauter asked to see
business records and invoices for the licensed premise and
was advised by the manager that there were none on the
licensed premise.
6. 12-47-128(5)(h): It is unlawful for any person to fail to
display at all times in a prominent place, a printed card
with a minimum height of fourteen inches and width of eleven
inches, commonly referred to as a "minor warning sign", on
the licensed premise. TO -WIT: There were no minor warning
signs posted on the premises on November 21, 1988.
7. 12-47-130(1)(a): In violation of Regulation 47-105.4(A), no
licensee for the sale of alcoholic liquors for consumption on
the premise where sold shall maintain thereon any container
of alcoholic liquor which contains any substance other than
that contained at the time such container was received by or
delivered to the licensee. TO -WIT: On November 21, 1988,
the licensee did have nineteen (19) bottles of alcoholic
liquors which contained insects in them.
Trustee Barker moved the "Findings of Fact" be adopted as stated, and,
based upon those findings of fact, that the Hotel and Restaurant Liquor
License issued to Nita Sue Simmerman, dba THE BACK FORTY, be revoked.
Trustee Aldrich seconded the motion and it passed by the following
votes: Those voting "Yes" Trustees Aldrich, Barker, Garrett, Habecker,
and Hix. Those voting "No" none.
With regard to the nineteen liquor bottles, the Police Department will
retain this evidence until such time as the appeal process is no longer
valid; the bottles will then be destroyed.
There being no further business, Mayor Dannels adjourned the meeting at
2:02 P.M.
Mayor
Town Clerk