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BEFO2E THE COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Docket No. 85-68
IN RE: PHASE ONE OF SHOW CAUSE HEARING FOR RENEWAL APPLICATION
FOR A TAVERN LICENSE, WITH EXTENDED HOURS, FOR THE SALE OF
MALT, VINOUS, AND SPIRITUOUS LIQUORS FOR CONSUMPTION ON THE
PREMISES ONLY, ISSUED TO ERNIE LLAMAS, D/B/A ERNIE'S BAR.
September 25, 1985
COMMISSIONERS PRESENT:
Jacqueline Johnson, Chairman
Gene R. Brantner
C.W. Kirby
Gordon E. Lacy
Frank Yamaguchi
APPEARANCES
Dan Michaels: Appearing for Applicant.
Mike Brown: Deputy District Attorney.
Lee Morrison: Assistant Weld County Attorney.
850453
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CHAIRMANJOHNSON: We will reconvene this hearing and
move to Docket Number 85-‘68, Mr. Morrison.
MR. MORRISON: Madam Chairman, Hearing Docket Number
85-68 is the application for tavern license renewal for
Ernie Llamas, doing business as Ernie's Bar.
Previously this matter had been continued from
September 18th, at Mr. Llamas' request with the consent of the
petitioner in this matter. And, this is on a full hearing
following a finding of probable cause not to renew the liquor
license held by Mr. Llamas.
The proceedings, if I may Madam Chairman, are under the
Colorado Liquor Code, Ordinance Number 102-A of Weld County,
and then the administrative policies of Weld County. Ordinance
Number 102-A, provides for a two-tierd hearing in the event
there is a hearing for refusal to renew a liquor license.
The first tier is to determine,.within four categories,
whether violations exist which justify not renewing the license.
Should the Board find that the evidence is sufficient on any
of those four, then there would be a second phase of the
hearing which deals with mitigating or aggravating effects of
those violations, to aid the Board in determining the nature
of the action, or in effect, the punishment to be provided.
The probable cause hearing this Board has previously held
has set the terms for consideration of Phase One. And, that is,
are there grounds to refuse to renew. And, these are the
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allegations, as such, that you need to consider: That, there
have been violations in the last one year period by Mr. Llamas,
or any of the agents, servants, or employees of Mr. Llamas
with the following provisions of the Colorado Liquor Code and
the rules and regulations authorized pursuant to it. And,
these are contained in your Resolution of Finding of Probable
Cause, which is dated the 26th of August, 1985. It should be
in your packet.
A) Serving malt, vinous, or spirituous liquor to persons
under the age of twenty-one years. Whicltis a violation of
section 12-47-128 (1) (a), Colorado Revised Statutes.
B) Serving malt, vinous, or spirituous liquor to a
visibly intoxicated person. A violation of Section
12-47-128 (1) (a).
C) Failing to conduct hi_s licensed premises in a decent,
orderly and respectable manner; permitting on his licensed
premises the serving of apparently intoxicated persons; and,
permitting profanity, rowdiness, undue noise, or other
disturbances or activities offensive to the senses of the
average citizen, or to the residents of the neighborhood in
which the licensed establishment is located.
Second item, other than the violations of the Liquor Code,
is Zihe`. standard of the allegation that there is evidence
showing excessive noise, rowdiness, or disturbances on a
continuous basis in the immediate area of the licensed premises.
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So, those are the issues which the Board found probable
cause to hear and should be addressed in Phase One of this
hearing.
CHAIRMAN JOHNSON: Thank you, Lee. Are there any
questions to Lee with regard to the process that we're involved
in here?
COMMISSIONER BRANTNER: You referred to punishment.
Would you explain that a little bit further?
MR. MORRISON: Well, that would be dealt with
after in Phase Two.
COMMISSIONER BRANTNER: But, we do Phase Two today?
MR. MORRISON: It depends on what you find and it
depends on the time. But, the goal is first to find if there
are grounds to not renew, but then to determine if there are
mitigating, that is an excuse for this happening, or if there
are aggravating circumstances, that is, that make it worse.
The parties may or may not decide to present evidence
on those issues after you've heard the case in chief. But,
I think we can deal with that further, once you get to that
phase, if it's necessary.
CHAIRMAN JOHNSON: All right. I understand that
the applicant is represented by counsel today.
MR. MICHAELS: Yes.
CHAIRMAN JOHNSON: I just want to make sure that I'm
correct. Give us your name, please.
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MR. MICHAELS: By way of introduction, I'm
Dan Michaels, of Fry, Locke, and Michaels, P.C., of Fort Collins,
I represent Mr. Llamas.
CHAIRMAN JOHNSON: Thank you, Mr. Michaels. And
Mr. Brown, is from the District Attorney's Office.
MR. BROWN: That's correct.
CHAIRMAN JOHNSON: We'll begin by asking you,
Mr. Brown, to make an opening statement, if you would, please.
MR. BROWN: There's not a whole lot left for me to
say with regard to what you're here for. I believe the County
Attorney has outlined that for you.
I'll simply run through the procedure of the witnesses
that I believe we'll call to present testimony today on the
various aspects or the charges of the violations that have been
alleged, and which we maintain should be considered violations
and dealt with by the County Commissioners.
The witnesses that will be called will be: Dave Sauter,.
of the State Liquor Board. He has prepared a summary of the
offenses that have been involved. He also is acquainted with
the history of Ernie's Tavern and can acquaint the Board with
that. He, additionally, can give us background on the Liquor
Code. He can draw some comparisons, hopefully, between this
particular tavern and other taverns in the area around, and
incidents that have occurred and kind of relate those to each
other, so that the Board has an idea:' Is this the same as
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other taverns, is it worse than other taverns? Where does the
conduct that's occurring here fall within the range of taverns
that are available here in the county and other counties within
the state.
We'll also be calling Lieutenant Hayward, who is with the
Weld County Sheriff's Office and he -- the Weld County Sheriff's
Office has the duty of patrolling the area that's involved
around Ernie's Tavern and has the responsibility of responding
to any kind of criminal calls, complaints, that come in out
of that area and he will be called to deal with some of the
investigations and complaints that the Sheriff's Office had
been involved with.
Ed Herring, who is also a deputy for the Weld County
Sheriff's Department, has gone through and compiled a list of
cases or calls that in some way have been related to Ernie's
Tavern. And, he will go through and kind of summarize those,
and he has summarized those.
He also has gone through, at the request of Mr. Sauter I
believe, and talked to the residents around the Tavern there in
East Eaton. And talked to them and discussed with them how
they feel about the bar. Problems that they feel there may be
with the bar and some other matters.
There are several other people that are here.
Paul Halloran,
who is acquainted with the community and
acquainted with some of the other -- some of the members
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involved, in both the ownership of the building and other
matters. He has talked to some of the members in the community
about their feelings out there.
Also, with him is Ms. Martinez, who for a period of about
six years preceeding the most recent serious criminal episodes
that have occurred out at Ernie's; has been involved with the
Catholic Church there in the te-aching capacity. She lives in
West Eaton, but she had been involved with the Catholic Church
and had taught Sunday School and had gone over there and had
been acquainted with the area and has witnessed what has
occurred in the area during the last year.
Briefly, I think that will be the evidence and the evidence
will be presented to you to show that these various violations
have occurred, which the County Attorney has read to you.
CHAIRMAN JOHNSON: Mr. Michaels, do you want to make
an opening statement, at this time?
MR. MICHAELS: Yes, I would. Thank you members of
the Board. I will be brief. Basically, what we will show as
to the first tier that Mr. Morrison explained, is we'd like
the Board to take a real hard look at exactly what is the
involvement of Ernie's Bar in any particular incident or
allegation.
We're not here to try and whitewash everything. Admittedly,
there've been some problems with the bar. We'd like the Board
to also consider the basic neighborhood that the bar is located
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in and take that into consideration. As to what exactly
occurs in the neighborhood and what is directly related to
Ernie's Bar.
As to the second tier. We are basically here to show the
Board as to what should be done as a result of their findings,
if indeed they find that violations have occurred, and as to
that, Mr. Llamas is here to testify. We will show the Board
that he is a genuinely sincere proprietor that is interested in
taking corrective measures to alleviate any problems. That
he has indeed taken some positive steps and is cooperating with
law enforcement officials. Has his own internal employee
policies and has a security staff now in place.
,That will, we hope, persuade the Board that if indeed they
do find violations. which we concede there have been a few of,
that indeed a proper sanction for Mr. Llamas at this point in
time would not be to refuse to renew his liquor license.
Thank you, very much.
CHAIRMAN JOHNSON: Thank you, Mr. Michaels.
Mr. Brown, we'll begin by allowing you to call your
witnessess.
MR. BROWN: For my first witness, I will call
Dave Sauter.
DAVE SAUTER,
having been duly sworn, testified as follows:
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1 DIRECT EXAMINATION
2 BY MR. BROWN:
3 Q. State your name please, sir.
4 A. David R. Sauter.
5 Q. How are you employed?
A. Investigator with the State Liquor Board.
Q. In that capacity, are you charged with making bar
checks and doing that sort of stop in work for the Liquor
Board?
A. Yes. My responsibilities include: Investigations
of criminal offenses, licensing investigations, financial
investigations, the whole gamit.
Q. As a part of that responsibility, would Eaton or East
Eaton fall within your realm of responsibilities?
A. Yes, sir.
Q. Did you have an occasion to do an investigation
concerning Ernie's in East Eaton?
A. Yes, I did.
Q.
Who's the proprietor, or owner, or operator of that
particular establishment?
A. Ernie Llamas:iis the licensed operator.
Q. Do you know when he was actually licensed by the
Board?
A. I believe he was licensed on October 4th or 5th, 1984.
Q. Okay. Prior to that had he been operating the bar
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under some kind of management agreement?
A. Yes. Thare was -- last year, which was 1984, I had
had some complaints, so I responded to East Eaton to check
on the ownership and management of the bar. At that time,
Mr. Llamas stated that he was managing it for a June Rosalez.
However, Mr. Llamas was never able to produce myself a
management agreement.
Q. Who had the actual license, at that time?
A. At that time, the license was issued to June Rosalez.
Q. Did you talk to Mr. Llamas about that condition?
A. Yes. I talked to him about the condition, the
complaints I had received, as far as the conduct of the
establishment, the ways to correct the violations that were
occurring and also on the illegal ownership. That there needs
to be a clear—cut definition as to who was actually the owner
of the bar.
Q. What/ type of complaints did you talk about, at that
time, sir?
A. I believe that there was a few assults or fights at
that particular time and I had some complaints that it was
being run illegally, which means that their owner was not in
control of the bar, another person was in control of it.
Q. Okay. What happened then, after you had had that
meeting with him?
A. I had that meeting with him and we explained some
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different ways to correct the situation. I explained that if
he didn't come up with a management agreement or some type of
lease or a new license, I would have to take him to a State
Hearing. Mr. Llamas, to my knowledge, never did come in with
the mentioned agreement and subsequently he did apply for a
license at the local license people and was granted the
license.
Q. So, the renewal of that license is what we're here
on today?
A. That's correct.
Q. Since that time, since he obtained the license in
his own name, have you had occasion to make checks there, at
Ernie's?
A. Yes. I've been by there a couple of times and
I've the Sheriff's Department is the one that has more
responsibility with routine enforcement of the law up there,
due to my large areas of responsibility.
Q. Have you had complaints during the period of time that
he's actually had the bar in his own name?
A. Yes, I have.
Q. What kind of complaints have you had, sir?
A. I have had complaints of fights and of under -age
service there. Basically, conduct of the establishment.
Of serving intoxicated people. I have received complaints from
the Eaton Police Department and the Sheriff's Department, as
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well as people that reside in East Eaton. And, the people
that reside in the west side of Eaton, too.
Q. Now, with regard to East Eaton. I'm fairly new to the
county. I've only been here a couple of years, and I'm not
familiar with East Eaton, so, could you describe the community
for us?
A. East Eaton is basically an isolated area which is on
the east side of 85. On the east side of the railroad tracks.
It encompasses, maybe, approximately four blocks, give or take
a few. I would imagine there is probably 30 residents that
live in that area, with one local business there.
Q.
Which local business is that?
A. That's Ernie's Bar.
Q. So, aside from Ernie's Bar then, there's no other
busines in that area?
A. Well, there's a church. I don't know if that's
considered a business. It's just down the street. To my
knowledge, I believe there's no other business within that
residential area.
Q.
As far as the location of Ernie's, how is it
surrounded, sir?
A. It's surrounded -- basically it's in the corner of
the development. It's situated in the south-west corner.
Q. Are there houses around it?
A. I believe there is a house on either side of it.
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And, there's some across the street.
Q.
What did you do when you received these complaints
during the last year, then?
A. I've contacted the Eaton Police Department, also the
Sheriff's Department and received their reports on it and they
were asking what type of action can be done against it. I've
discussed this with the lieutenant of the Sheriff's Department.
As far as his correspondence and with the bar owner and
basically we've just proceeded in that course.
Q. Did you, at some point in time, ask the Sheriff's
Office to give you a report on all the incidents that were
involving Ernie's Bar?
A. Yes. As an increased number of reports came in, I
could see a pattern of increasing violence that occurred. At
that particular time I requested, for the past year, a
collection of all the reports to see what I felt could be
attributed to the bar conduct.
Q•
Q.
Let me show you a document --
(Whereupon Exhibit A was marked for identification.)
(By Mr. Brown) Let me show you what has been marked
as Exhibit A, and ask you if you've seen that document before,
sir?
A. Yes, I have.
Q. Can you tell me what that is, sir?
A. This is an investigative report that I composed from
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the criminal reports obtained from the Sheriff's Department, as
well as my own investigations.
Q.
As I recall, Mr. Morrison read four essential
allegations that were charged against the bar in his statement
to the council.
A. I believe there's four charges listed on here.
Q. Those are the four charges listed here?
A. Correct.
Q.
With regard to the offense, details of the offenses,
and the dates there, are those reports you obtrained from the
Sheriff's Office?
A. Yes, they are.
Q. And, the paragraphs out to the side, is that a brief
summary of what's in the report?
A. Yes. It's a very brief summary that basically
describes what's in the report that may relate to the bar
conduct.
Q. I notice you also have a history of the violator,
would that be Mr. Llamas?
A. Yes, sir. The history of the violator is basically
Ernie Llamas. He's had the license for one year. And within
that history described my verbal warning, as far as the liquor
license was concerned, the liquor laws and ways to correct the
situation,
Q.
which was last year.
Do you have -- going back to the details of the
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offense section of this -- do you have the Sheriff's Office
reports that coincide with -those incidents?
A. Yes, I do.
Q.
And, they're here available, should the Commission
wish to look at them.
A. Yes, they are.
Q. For the purposes of this hearing, I provided the
opposing counsel with a copy of this. I did that earlier today.
He's had a chance to review it. I've made identical copies
to what has been marked as Exhibit A, and I would offer that
to the Commission. I will be presenting other testimony from
other individuals, specifically the Sheriff's deputies, with
a little more detail concerning the type of offenses. So that
if you have any questions of them you can ask them. Or, if
there are hearsay problems, we can handle them in that way.
So, I would offer, not only Exhibit A, but also offer copies
of that exhibit so that each one of the Commissioners have
that.
MR. MICHAELS: Well, I would object Mr. Morrison, on
the grounds that this is a hearsay document. I realize that in
an administrative hearing, hearsay is admissible, but the
tribunal concerning it still has a certain burden to respect
and give proper weight where it is due. So, I want, for the
record, to make that objection.
MR. MORRISON: The standard the Board is to follow on
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that is whether the evidence possesses probitive value commonly
acceptable by a reasonable and prudent manner in the conduct
of their affairs. So that there is not a strict rule of hearsay
But you could, I think, reserve judgment on that for further
foundation, if Mr. Brown indicates there is going to be further
testimony regarding that.
CHAIRMAN JOHNSON: What's the desire of the Board?
COMMISSIONER BRANTNER: Personally, I'd like to see
it.
CHAIRMAN JOHNSON: Any objections?
MR. MORRISON: So, you're going to reserve -- go
ahead Madam Chairman.
CHAIRMAN JOHNSON: My understanding is that the Board
would like to have the document presented to them --
COMMISSIONER BRANTNER: And delay the ruling on the
hearsay.
MR. BROWN: If you wanted to review it, I have copies,
before you make your decision.
MR. MORRISON: That's fine, with the understanding
that they may choose
MR. BROWN: I understand.
Q. (By Mr. Brown) Mr. Sauter, how many counties do you
cover, sir?
A. I cover eight counties in the north eastern part of
the State of Colorado.
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Q. With regard to taverns of the sort that you observed
Ernie's Tavern to be, are you acquainted with other taverns in
that type of setting?
A. Yes, I am. There's several in the County of Weld.
Q. Okay. With regard to, and when I say that I suppose
we have to -talk about the kind of people that use the tavern; the
type of clientele that frequent the tavern, is that a fair
estimation of what you're talking about?
A. Yes.
Q. With regard to that, sir, do you have any other bars
that would service the same kind of clientele here in Weld
County?
A. Yes. There's several along 85. Do you want me to list
those?
Q. It might be helpful.
A. There's Blue Willows in Gilcrest. There's also some
other taverns in Platteville, the Carousel and there's a couple
here in town, it would be the Latin Quarter and several other
bars like that.
Q. With regard to Ernie's then, in comparison with the
reports and the investigations that you've done on the other
bars, how would you compare the operations there at Ernie's
with these other bars?
A. Within the past year, it's by far leading in the
number of violations.
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Q. Okay. When you say number of violations, what types
of things are we talking about?
A. We're talking about conduct of the establishment, the
selling to minors, intoxicated people involved in the bars,
overall rowdiness, things of that nature.
Q. Have you personally observed anything of that nature
in Ernie's?
A. I have observed some rowdiness on a particular night.
I believe it was in late September -- early September, when I
had to be up there with the Sheriff's deputies.
Q. When you went in you were with the Sheriff's deputies?
A. Right. I have observed previous, not recently, last
year which was 1984 which would still be in the licensed period.
I happened to make a couple of stops at Ernie's when he obtained
hisaicen;se-.
That was not with the Sheriff's deputies. That
was in plain clothes.
Q.
Did you observe any violations or anything out of
the ordinary, at that time?
A. Not at that particular time. It was during the day.
Q. You're a caucasian?
A. That's correct.
bar?
Q.
And, are there very many caucasians that frequent the
A. No. The clientele that frequent the bar, to my
knowledge, is mostly Hispanics, Mexican Americans. There are
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some illegal aliens that do frequent the bar.
Q. Getting back to the Exhibit that's been submitted,
you also reached some conclusions and recommendations, in the
Exhibit that's been submitted, is that right?
A. That's correct.
Q. And, based upon your training and experience and your
observations and all of the information you've been able to
gather, do you have a recommendation with regard to what should
happen to Ernie's?
A. Yes, I do. And, that's based on prior knowledge and
contact with the licensee for things that have been going on.
Also, complaints from the residents in the community. To name
one, Mary Archibeque. Also from the Eaton Police Department
and other people, residents of Eaton.
Q. Okay. With regard to Mary Archibeque, did you have
any specific complaints made by her?
A. Yes. Mrs. Archibeque stated that she had seen, on
several different occasions, people carrying beer off the
licensed premise.
Ernie's Bar is licensed for on -premise consumption only,
and that is a violation for carrying beer off the premise.
She also stated she saw beer handed out the door to minors,
on several different occasions.
Q•
Did she talk at all about her child?
A. Yes. I know Mrs. Archibeque from her employment at
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the Eat'n Place Restaurant and Lounge in Eaton. She's worked
there for approximately eight years. I did know she did have
some knowledge of the Liquor Code because of my prior contact
with her.
Q. As far as her childrens' experience with Ernie's, did
she indicate
A. Yes. In particular, her son had been going to the
bar since he was 16 years of age and just recently after -- he's
20 now -- after the stabbing he decided he wasn't going to
consume liquor at that particular establishment.
Q. As best as you can recall, can you place a date
when you say stabbing, what incident is that, sir?
A. The stabbing, I recall, occurred early August. I
think it was around the 8th of August, I'm not sure.
Q. That was not in the bar, is that correct?
A. No, that occurred out in the street.
Q. So, Mrs. Archibeque indicated her son, after that,
had quit going?
A. Yes. Due to the conflict in the community. She
felt that the clientele that had been frequenting the bar was
from out-of-town, and it was just dividing the community of
East Eaton.
Q. Where does she live, with respect to Ernie's?
A. She lives on Clark Street, which would be north east
of the bar. Approximately two blocks, I imagine.
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Q. Were there any specific people that you can recall
that gave specific examples of the place?
A. Mr. Paul Gomez stated that, last week in fact, that
he was the vice—president of the East Eaton Community
Organization, and stated that he's lived there 30 years and
by far this has been the worst that the bar has been run.
He stated, however, he wouldn't object to having a particular
grocery store or something of that nature at that location.
Q•
His desire was to see that the bar did not continue
to operate, is that correct?
A. That's what he responded to me.
Q. You indicated he said that last week, when was that,
sir?
A. He responded down to the hearing which was then
continued and he made that statement outside the council
chambers here.
Q.
What about Mrs. Archibeque, was she here last week
when it was continued?
A. Yes, she was. She was here also. And, I did have a
chance to interview her on August 26th, which was held at her
residence in East Eaton.
MR. BROWN: I believe that's all I have at this time.
I reserve the right to recall.
CHAIRMAN JOHNSON: Mr. Michaels, would you like to
cross examine?
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MR. MICHAELS: Yes, I would. Thank you.
If I may I'd first like to make a record. On portions
of this, Mr. Sauter's report, Exhibit A that refers to incidents
that occurred subsequent to the initial, or threshold tier
one hearing. In particular on page one, there's a witness
statement on September 7th, 1985, relating to a charge of
serving to a minor. And, I would like to put on the record
I object to the Board considering that. It wasn't considered
at the initial hearing, the probable cause hearing. We had
no notice that, in fact that this would be presented as
evidence toady. And, I think in all fairness that the Board
should consider that. We're here to consider only those things
which were probable cause for consideration at the August 26th
hearing.
CROSS EXAMINATION
BY MR. MICHAELS:
Q. Mr. Sauter, your report states that, on page one,
from October 7th, '84, to August, '85, there had been five
assaults, five disorderly conducts, and one murder which may be
attributed to the conduct of the licensed premise, is that
correct?
A. I think it should read the conduct of that
establishment may have contributed to the murder.
Q•
For instance, what knowledge do you have of the
involvement of Ernie's Bar as to the murder?
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A. Based on the Sheriff's Office report, that people
that were involved in the wedding party were also involved in
the murder which occurred had been drinking in the bar
previously. That several of the clientele that attended
Ernie's Bar was from not in the community, but in fact,
illegal aliens and people from other towns in Colorado. And,
that the infraction between these particular parties
contributed tatthe violence. The violent nature of that
particular incident.
Q. The wedding party was held, where?
A. To my knowledge, I believe it was held out in the
street and across in someone else's house. However, there are
statements that there was a keg of beer on the street and that
the wedding party was basically right next door in a house.
Q. How many people were at the wedding party?
A. I have no idea.
Q. Do you know whether the victim was one of the alleged
people that had been drinking at Ernie's?
A. You'd have to refer to the Sheriff's Department
reports for that.
Q. Did you know whether the defendant, the perpetrator,
was one of the people that was drinking there at Ernie's.
A. Again, I think it's in the Sheriff Department's report
I'm not really sure because I haven't refreshed my memory, but
I believe that they had earlier been drinking at that particular
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establishment.
Q. The defendants?
A. Pardon?
Q. The defendants that were charged with the murder?
A. Earlier that evening, I believe. Again, I couldn't
tell you for sure because I'd have to look at the reports.
I wasn't there that particular night, so I couldn't say for sure.
Q.
When did you write this report?
A. I believe there's a date on the top there.
Q. So, you wrote this, August 19th?
A. Yes, that's correct.
Q. And you state in here that the murder may be
attributed to the conduct, I'm asking you, what conduct?
A. No, I didn't say the murder would be attributed to the
conduct I'm saying part of the conduct of the establishment
and the way it's been run could have led to, or been part of
reason there was a muder out there.
Q. Now, you mentioned illegal aliens. It is not
illegal, per say, for a bar or tavern to serve beverages to
illegal aliens, is it? Is that a separate. crime'-in_itse1f?
A. Only if they don't have proper identification.
Q. By that you mean a document showing whether or not
they're over 21?
A. That's correct.
Q.
Isn't it, in fact, the law that they don't have --
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they have to be over the age of 21, in order to drink legally,
is that correct, no matter what country they're from?
A. That's correct. That's correct.
Q. So the illegal alien isn't really a violation of the
Liquor Code or anything?
A. I don't believe I stated it was. I was just referring
to the type of clientele that frequent Ernie's. I briefly
mentioned to the Board similar incidents that have occurred.
Q. Now, you also mentioned on Page 2, the first, that
says charge 3. Rodriguez and Manzanares had been drinking
earlier in the evening at Ernie's and were arrested on an auto
theft later on, is that correct?
A. That's correct. And, I believe Officer Ed Herring
will testify to this page of the report directly.
Q•
So, you don't know any more than that about it?
A. No. Basically the synopsis is a brief summary of
what went on.
Q. From anything that was mentioned, was Ernie Llamas
issued a summons or citation for violation of the liquor
license or state laws?
A. For which incident?
Q. For any of them.
A. I believe he was issued one for the service to a minor.
At those particular times, the Sheriff's Department can attest,
they were more concerned with the violent acts and did not issue
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liquor violations.
Q. The only summons he got was for the September 7th,
for serving a minor?
A. Again, I think that question should be attributed to
the Sheriff's Department. I think they could answer that better
than I could.
Q.
Did Mrs. Archibeque state whether or not the people
that passed the beer through the door, were employees of
Ernie's, or patrons?
A. She didn't state who they were. I don't know who they
were. She just recognized the people from the community. She
lives there. She just stated, people passed it out to people
on the street. She didn't say whether they were employed or
not employed. But, if in fact that did happen, it's a violation
to the law.
Q. Now, did she state when this occurred?
A. She said it was an on -going thing. Several different
times. She didn't name any particular date or time. She stated
it happens quite often.
Q. So, part of what she's referred to could have been
prior to September, 1984?
A. Well, you know, I was talking to her and she said
within the past year. I was talking in referance with her
about last year, the licensed year for Ernie Llamas. Some of
it probably could have happened before.
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Q•
Now, your report on Page 3 mentioned Alvin Jones was
assulted as he left Ernie's Bar. Do you know anything more
about that; like how far out of Ernie's Bar was he?
A. Again, the Sheriff's report should be -- probably
the Sheriff's officers should be questioned. I just wrote a
brief
summary. I think they can answer to the actual location
and what not.
Q. Now, you testified to a November '84 meeting with
Mr. Llamas, where you discussed some problems, is that right?
A. That's correct.
Q. And, then at the initial preliminary hearing on this,
you stated in reference to that meeting, "Since then after our
talks and discussions and what not, it's simmered down through
the winter months, somewhat."
A. In reference to the Sheriff's reports, that's correct.
Q. What was Mr. Llamas' attitude at the discussion and
meeting?
A. Well, at that discussion and meeting I explained the
liquor laws. He seemed like he was willing to cooperate
at that particular time in August, I believe. He said he would
hire a security guard to watch on dance nights or busy nights.
Q. At that time he --
A. Back in 1984.
Q. Was it a suggestion or a request?
A. Well, we were discussing the possible solutions.
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Q. What other tangible solutions did you discuss with
Mr. Llamas?
A. There's several different types of ways you can
control the establishment. Number one, having security guards,
having Sheriff's deputies stop and spot check, walk throughs
on the bar, education of the employees on the Liquor Code
violations, things of this nature. Making sure that they card
under -age people that come into the bar and not service them.
And, just a number of different ways to correct the situation.
Q. Now, do you have knowledge as to whether or not
Mr. Llamas has taken correct tangible steps that you discussed?
A. I believe he's hired, as I stated, a security guard
for the licensed premise. However, I don't know if some of the
other ones were taken into effect or not.
Q•
Now, you testified to something about management
agreement, as to its effectiveness, it was enforced at that
time?
A. Right.
Q. Now, that is not pertinent to this hearing, is it?
That's not a violation that we are brought here to discuss
today, is it?
A. No, it's not in the violation period. However,
I think it's pertinent to show that Mr. Llamas was aware of the
Liquor Code violations. The conduct of the establishment, that
I directly discussed with him in regard to the operations of his
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establishment.
MR. MICHAELS: I have no further questions.
MR. BROWN: I just have a couple. You were asked
if Mr. Llamas hired security guards, do you know when he hired
the security guard.
A. I believe it was after our discussion, back in August
of '84. As to the actual date and what not, I couldn't say.
Q. The offenses that we're talking about, that you
outlined here, are since that discussion, is that right?
A. Yes. In the license period of his own personal
license.
Q. So, during the time that these disturbances happened
and the reports were made, he had security guards in place, is
that correct?
A. To my knowledge, yes.
MR. BROWN: That's all I have.
CHAIRMAN JOHNSON: Does anyone on the Board have any
questions? Mr. Brown.
MR. BROWN: We'll call Ed Herring.
ED HERRING,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BROWN:
Q. State your name, please.
A. Edwin J. Herring.
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Q. How are you employed, sir?
A. I am a deputy for the Weld County Sheriff.
Q. How long have you been with the Sheriff's Office?
A. Since September 13, 1984.
Q. As a part of your duties, were you asked to prepare
a summary of incidents that have occurred which relate in some
way to Ernie's Tavern?
A. Yes, I was.
Q.
And, did you pull then, the cases that had mentioned
Ernie's in some way?
A. Yes. I pulled all the cases that I could find through
our computer system that had Ernie's name or address or they
were down as a witness or reporting party.
Q. And, did you go through those reports, sir?
A. Yes, I did.
Q. With regard to those reports, sir, were there some you
threw out as having- no relationship to Ernie's?
A. Yes, there were.
Q•
What kind of a standard did you use when you decided
whether or not you were going to attribute these reports to
Ernie's Bar?
A. Basically I look at the immediate area of Ernie's
Bar with alcohol related incidents.
Q. Would the report then specify the address and the
people who had been in Ernie'.s drinking?
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A. A witness would say they were in Ernie's, around
Ernie's, or had been drinking over in that area.
Q. With regard to those cases, how many cases, after you
had weeded out the ones that appeared to really not have been
attributed to Ernie's?
A. I came up with 13 cases between October 4th, and
September 19 -- September 15th, 1985.
Q. Did you summarize those?
A. Yes, sir, I did.
Q. As to what kind of crimes?
A. Right. There are 13 cases. If I may, there was one
criminal attempt to first degree murder; there was one shots
fired in the area. That was reported by a deputy who was in
the area when he heard the shots behind Ernie's Bar. There was
one aggravated robbery, which I handled; which the parties
specifically told me that they had been drinking at Ernie's Bar,
and were under the influence of alcohol, so they just tried to
steal a car from a farmer down the road. Four second degree
assults. Three disorderly conducts. One second degree
burglary. One careless driving; a juvenile served in the bar.
Q•
Did you also review those cases with regard to where
these people were from?
A. Yes, I did.
Q.
When I say "these people," I'm referring to the
defendants that were arrested.
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A. These were all people who were identified as suspects
and subsequently arrested for the crime in question. On there,
I had 18 arrests off of these 13 cases, however, there were
numerous cases, five I believe, that had no suspect identified
on there. They were identified as: Male Party and Female Party,
or Unknown Suspect.
Q. Okay. With regard to the 18 people that were arrested
could you summarize where they're from?
A. The 18 people arrested -- they gave the following
addresses: 13 of them were from Greeley, with Greeley City
addresses; 3 from Eaton Proper, that's West Eaton; one was
from Gill, and one person was from East Eaton that was arrested,
and I believe on the first degree murder charge.
Q. Do you have occasion to make bar checks on that
particular place, this particular bar, sir?
A. Yes, sir, I do.
Q. Have you had any contacts there in the bar, sir?
A. Yes, I have. I've been on a number of different
calls that were called up in the area and I have done a few
bar checks in the bar.
Q.
Did you find any violations, while you were in there?
A. When I was in the bar, I mostly was looking for
rowdy individuals. Parties that were attempting to start
either a domestic disturbance, between . husband and wife.
Basically, checking the bar to make sure nobody was causing
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any problems inside.
You indicated you were called out on some assults?
Q.
A. I was called up into the area. I may have taken
statements from witnesses, but I don't recall specifically any
of the assaults, 'right now.
Q. Okay. With regard to criminal attempt to first degree
murder, is that the same incident that Mr. Sauter was testifying
to?
A. Yes, sir.
Q. And, are you familiar with those reports?
A. I was working the southern part of town at this --
when that went down, so I was not directly involved in the case.
Q. Lieutenant Hayward, would he be more familiar with
this?
A. Yes, sir.
Q. Did you have occasion to also check local residents
there when it was determined that some action might be taken
against Ernie's. Did you have occasion to talk to local
residents there, sir?
A. Yes, I did. I contacted, as best I could with my
other duties, most of the families in the area.
Q. And, what did you determine about the wishes of these
people?
A. I contacted 14 families in the East Eaton area.
Husbands, wives, and/or children. and discussed Ernie's Bar with
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them. Five of them were from Clark, which is two blocks to the
east of the bar. Three of them were from Wall Street, which
was on the bar street itself, located on the same street as the
bar. One family was on Lyndon Street that I contacted, but
I don't speak Spanish too well, so I couldn't understand what
they were saying. Two families on 4th Street and three families
on 5th Street.
Of the families that I contacted, two families were
definitely for keeping the bar open, with absolutely no changes
at all in the way that it is being operated. Now the only
problem in the area were the illegal aliens, or wetbacks, as they
would call them, frequenting the bar. And, this was the only
problem.
Two other families that I contacted said the bar should
stay open, but they should change the bar into a restaurant, or
to keep it as a bar where people could be served food. Anyway,
basically get rid of the band. They thought that the band in
the bar was a problem because of the people that hang out around
the bands.
Seven families said that they wanted the bar closed.
They said that there was they had numerous complaints about
the bar itself -- that they thought it should be closed.
Complaints were: trash, beer cans around the street and up and
down the street. Some of the beer cans came from the people
that were at the bar. Some of the trash and paper came, not
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necessarily from inside, but people that were drinking outside.
Fights were spreading to the residential areas and weren't
staying right around the bar area. There was high traffic and
unnecessary speed in the area. I was told by a couple of
families, a young child was killed up there, two or three, or
four years ago. And, the car was driving down the street at a
high rate of speed.
I've observed, myself, numerous times where very young
children, I'm talking about just barely old enough to walk,
all the way up to young teens, are playing in the middle of the
street during all hours that the bar is open. I will drive
through the area at 10, 11 or 12 o'clock in the night to find
no adult supervision obvious in the area.
These families also complained about the noise caused by
the patrons in the area.
One of the biggest complaints is that there are no parking
spots for the bar over there. The traffic congestion is the
cause, that in this area it's almost impossible to go down the
street.
Most of the families that I contacted requested that their
names and addresses not be mentioned to the Board or to anybody
else, because, they directly feared reprisal from the people
in the area. If their names were mentioned, something directly,
or indirectly, would happen to them.
Q. Did you have occasion to talk to any of the businesses
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around the area that are open late at night?
A. I went to Highway 85, directly west of Ernie's
location. There are two gas stations. A gas convenience
store and another gas station, and they also sell beer products
in the store. I talked to the businessmen there and the
employees that work late in the night and they said that they
could not directly relate any person causing problems as being
from Ernie's Bar.
Q. Did they indicate that they had intoxicated people
looking for Ernie's?
A. They indicated that especially on Friday and Saturday
nights and very little, but ocassionally on Sunday nights,
there would be people driving down Highway 85, obviously
from not around the Eaton area and they would be quite
intoxicated and they would be asking directions on how to get
to Ernie's.
Q. Did you have any contact with people that indicated
that they had experience with under -age people getting served
in the bar?
A. I contacted one gentleman over there, who asked that
his name not be given out, who was under age. He had been
invited numerous times to go to Ernie's Bar with a cousin or
relative of Ernie and there would be no problem drinking inside.
The subject told me he did not go over there and drink. He
knew that under -aged people did go over to the bar and drink.
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Q.
With regard to your personal observations concerning
the problems, as far as the trash, could you relate that to the
Commission.
A. Okay. My observations of the area when I drive
through the area late at night, whether I drive in and do
a bar check or whether I pass by the front, there's quite a
bit of a litter problem now in front of the bar. There are
beer cans and paper and trash from fast food snacks up and down
the street. Which, seems to be quite a bit of a problem in
that area. There is a very bad parking problem over there.
The cars are quite congested in that area and a couple of
assault charges, I believe started from one car backing into
another car in the area. The party that was hit would get
upset and start a fight. And the music --
Q. Let me stop you there. With regard to those incidents
are you familiar with whether or not alcohol was involved?
A. These would be people that were leaving Ernie's Bar.
That would be trying to exit the general area but, due to
parking problems, and or alcohol, they had a minor fender
bender causing the incident.
Q. That minor fender bender then escalated in an assault?
A. Yes.
Q. With regard to your observations about the abilities
of people that are coming out of the bar, have you observed
anything in that regard, sir?
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A. I have observed numerous people being carried out of
the bar that were under the influence to such a degree that
people had to carry them out to a vehicle, put them in the
back seat and transport them to a location unknown. I would
assume home. But, they were obviously so under the influence
that they could not walk.
Q. When you say you saw people bringing them out, who
were these people that would bring them out and drive them
home.
A. They looked to be other friends -- dressed iri t'helsame
attire that they would be dressed in, either as farm laborers or
dressed up for the dance in the area. They did not appear to be
employees.
Q. Were some of them just left in the cars -- some of
these people that were too drunk to drive? Was everybody
driven off?
A. I don't believe that they were all driven off
immediately, no. But, I would go back there after the bar was
closed, turn the spotlight on the cars and wouldn't see anybody
in them. If I did, I would stop and make sure they were O.I.
Q. Did you go through and check the reports and calls
that you had with regard to Ernie's in comparison with other
parts in that area?
A. No, I did not.
MR. BROWN: That's all I have.
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CROSS EXAMINATION
BY MR. MICHAELS:
Q. I'd like to clarify one thing. It's not illegal
for -- it's a food and liquor place, but it's not illegal for
someone under the age of 21 to be present in Ernie's Bar?
A. I believe their license is that they are to be 21,
to be in the bar. I'm not positive on that. Mr. Sauter would
be more familiar with that.
Q. Now, referring to Exhibit A, the August 19th report,
which was prepared by 'David Sauter --
A. I don't have a copy of that.
(Whereupon a copy of the report was presented to the
witness.)
Q. It's my understanding on Page 2 of that, under
Charge 3, it mentions a Rodriguez and Manzanares, who had been
drinking earlier. And, is it that incident that perpetrated the
auto theft?
A. Yes.
Q. Is this the incident that you investigated?
A. Yes, sir.
Q. Now, they stated they both were extremely intoxicated
and stated they were too drunk to know what they were doing?
A. Yes.
Q. Is that an accurate summation of their condition?
A. Yes, sir.
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Q. And, when did they say that` -they -had been at Ernie's?
A. Just moments prior. If I may explain the situation
to the Board? These three individuals, as it was explained to
me by them, were in Greeley and drove up to Ernie's Bar to go
drinking because that was one of the places that they liked to
drink. They went up to the bar and they had a few drinks;
drove back down to Greeley and picked up some more beer and
drove to Ernie's Bar in East Eaton and they were on their way
back to Greeeley about the time that the bar was getting ready
to close when the car broke on Weld County Road 39 or 41,
I belive 39, and about two or three yards south of a farmer's
residence over there. So, they got out of the vehicle and the
battery was dead or something like that, I'm not sure the
exact reason why the car quit. They walked back to the farmer's
residence. They saw a pickup truck that the farmer had in
the yard with the keys in it, started it up and got ready to
leave when they said, well, since no lights came on in the
house they took a brick, wrapped it in a rag, broke the window
out of the back door, entered the residence. And, they were
inside by a microwave and a T.V. and the third person was
outside in the pickup ready to drive off, when the farmer did
awaken, stepped out into the living room where these two
individuals were and shouted out something ,to the effect,
what are you doing. They ran and got into the stolen pickup
and took off down the road.
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They notified the Sheriff's Office, we caught them within
10 or 15 minutes.
Q. So, how much beer did you find in the car that they
had abandoned, or stolen?
A. I don't recall that right now. It's specifically
stated in my report. I could guess, if you would like. I would
say there was about a 6 -pack of empties in the car.
Q. They definately were too drunk to know what they were
doing?
A. That was the statement that they told me.
Q. That was your opinion, based on their demeanor?
A. I believe they were also charged with driving while
under the influence of an intoxicating beverage. And, if I
remember right --no, I thought maybe he did, but he did not
blow into the intoxilizer.
Q. And, you did state, in your opinion, based on their
demeanor, they were too drunk to know what they were doing, is
that correct?
A. They weren't too drunk to know what they were doing.
They were, definately, under the influence of an alcoholic
beverage.
Q. Is it correct that .15, per say, is at least three
times over the legal limit?
A. Right.
Q. On Page 3 of that Exhibit A. 10-21-84: Shots fired
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in vicinity. Is that something that you investigated and have
any knowledge about?
A. That was investigated by Deputy Shomberger (spelled
phonetically) I did read over the report.
Q. Okay. Well, maybe you can tell us. How far away
were the people that fired the shots?
A. The way I understand it is that Deputy Shomberger was
at about half or three-quarters of a block to the north of
Ernie's Bar. He heard shots from behind or to the side of
Ernie's Bar and subsequently went into a trailer house or a
house just to the north -- just to the south of Ernie's Bar.
And, he did take a suspect and he was arrested on reckless
endangerment.
Q. Out of a house?
A. Out of a house, right.
Q. And, the only connection with Ernie's is that it was
next to the house?
A. No. I believe that in the report it also states
the guy had been drinking. He stated he was in Ernie's prior
to this, drinking.
Q. Was that his residence, his house?
A. Yes. Either his or his girl friend's. I don't
remember right now.
Q. The next incident, 11-22-84. Do you know anything
about that one, officer?
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A. No. That would be with the Eaton Police Department.
Q. I'm sorry.
A. That would be with the Eaton Police Department.
Q. Do you have a copy of that report?
A. I should have, it's got a county number on it.
Q. Well, I don't want you to file through all that now.
3-31-85: Alvin Jones assaulted. Do you know anything about that
one?
A. I know very few of the particulars. Just what's
around the squad room.
Q. What officer investigated that?
A. I'm not sure on that one.
Q. What connection does that have with Ernie's Bar.
A. Other than he was leaving Ernie's Bar.
Q. Was he six blocks away? Was he two blocks away?
A. The way I understand it is, the assault took place as
he was on the sidewalk in front of Ernie's Bar.
Q. Let me -- pull that report would you.
A. Okay. That would be March of '84. I don't have that
report. March 31st, 1984.
COMMISSIONER KIRBY: '85.
THE WITNESS: Oh, '85. That would be right here.
Q. (By Mr. Michaels) All right. Then, on that, based
on that report, could you tell the Council -- the Commissioners
where did this occur in relation to Ernie's Bar? Whether or not
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the defendant had been drinking in Ernie's Bar.
A. Okay. It says that the guy left -- the victim left
Ernie's Bar and another subject followed him in a vehicle
and approximately at Lucerne, Colorado, on Highway 85, the
suspect's car ran into him. An employee of the bar was later
contacted by the deputy and she did state that when the victim
left the bar, that she saw the suspect leave the bar.
Q. The suspect was identified as who?
A. Candelario Diaz, D -I -A -Z, was subsequently arrested
for that crime.
Q. And, that crime was perpetrated in Lucerne?
A. Right. Coming directly from Ernie's Bar.
Q. May 4th, 1985: Steve Gonzales reported he was
assaulted by Larry Llamas at Ernie's Bar. Did that happen
inside the bar? Any more details on that, about exactly what
the relationship to Ernie's Bar was to that allegation?
A. That was May 7th?
Q. No. It's May 4th, of '85.
A. May 4th, okay. It says -- the victim stated that when
he walked into the bar, the owner, Mr. Llamas and Mr. Llamas'
brother grabbed him by the shirt and kicked him out of the bar.
And, that's what the alleged assault-- it says: hair was pulled
and he was hit and kicked in the face several times by subject
Llamas and his brother.
Q. First of all, Larry Llamas or Leonard` Llamas arernOt
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the owners of the bar, is that correct?
A. Right.
Q.
Okay. And, this complaining victim was so intoxicated
that he had to be taken to Detox?
A. I don't believe the state of intoxication determines
whether you go to Detox or not.
Q. Did he go to Detox?
A. The statement doesn't say.
Q. Your report says --
A. My report does not say whether he went to Detox.
Q. The Exhibit A states he went to Detox. Is that
correct? Do you know whether or not he went?
A. No, sir. I don't know whether he went to Detox or
not. Okay. He requested to go to Detox, so he was driven there
by Deputy Cook.
Q. There isn't any indication as to whether he was
served at Ernie's or not?
A. No. It just indicates that he went through the front
door of the bar. This was Leonard and Larry Llamas, not the
owner.
Q. On the June 15, '85 and the June 30th, '85 incidents,
involving Mr. Corona and Maldonado, do you know whether those
incidents were reported to the Sheriff's Department by the
police or by Mr. Llamas, himself, of Ernie's Bar?
A. Okay. June 15th?
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Q. Uhm-uhm.
A. Okay. That was advised by N.C.M.C. emergency room
staff: Advised that Mr. Martinez received an open fracture. --
Q. Mr. Martinez? You may be talking about --
A. That'd be the victim.
Q. Pardon.
A. That'd be the victim.
COMMISSIONER KIRBY: On June 16, we have a Maldonado.
MR. MICHAELS: Augustan Maldonado was involved in an
auto accident.
THE WITNESS: And, Felix Martinez, they're both victims.
I'm not positive, but it indicates that N.C.M.C., Northern
Colorado Medical Center, contacted the Sheriff's Office.
Q. (By Mr. Michaels) On 6-30 of '85, who reported that
incident?
A. Deputy Dan Cooch was on the scene.
Q. On December 28, involving illegal aliens in front of
the bar, what was the connection with Ernie's there?
A. Okay. Deputy Coopermont with the Sheriff's Office
was the reporting party. IIe said that, in his report, while
he was in the area of East Eaton on another call, he observed
two subjects, both suspects, fighting in the street in front of
Ernie's. He has no indication in his report, other than being
in front of Ernie's Bar, as to any connection with it.
Q. Does it say how far in front of Ernie's Bar?
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A. No, sir.
Q. And, you mentioned and testified to a car hit a child
at a high rate of speed?
A. That's what I was told.
Q. Were you told if any connection at all existed between
that and Ernie's Bar?
A. The person that I talked to felt it was directly
related to Ernie's Bar, because the people go into Ernie's and
do not attend to the children outside. The children that they
have, they do not take care of. And, they felt it was related
to Ernie's Bar.
I am not aware of the incident. It was before I was
employed by Weld County.
Q•
And, they were speaking in general, though? They
had no knowledge themselves of any relationship of Ernie's Bar
in the accident?
A. I did not specifically ask them that question, no.
Q.
Now, this survey that you took, did you, at any time,
have any training in conducting public opinion surveys?
A. No, sir.
Q. Do you know what a valid sample of East Eaton would
be in terms of numbers, or whatever?
A. I know what it means. That's why I tried to contact
everyone in the area.
Q.
How many families are located in the area?
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A. I did not count every house, I couldn't tell you that.
Q. How many people did you talk to?
A. A minimum of at least one or two with every house I
went. Some houses would have four or five people in them.
Q. And, in Paragraph 4 of this then, you put in your
personal observations. You say you've seen several persons
escorted from the bar that were unable to walk. When did you
see that? What were you doing at that time?
A. Okay. At different times I -- due to my knowledge of
the area, at different times of the night and different nights
of the week, there tend to be fights and disturbances in the
area. When I take a call and I'm working in the North District,
I may park half a block, either north or south of Ernie's so
that I can watch the traffic go down the street. I'll sit and
write a report. I'll turn on the interior dome light and leave
the parking lights on, listen to the radio and write my report.
Occasionally, not every word, but every sentence, every other
sentence or every paragraph, I'll look up to observe the traffic
and people on the street, in case anybody is having any problems
or needs any assitance of any kind. And, during those occasions
within the last year, I have observed that people have been
carried out of the bar and placed in cars. And, I made sure
that they were not the one's driving home, because I felt, due
to my prior experience as a police officer, that they were far
enough under the influence of an alcoholic beverage they were
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not capable of driving themselves.
MR. MICHAELS: Thank you. No further questions.
MR. BROWN: I don't believe I have anything further
on this witness. I would call Lieutenant Hayward.
JAMES HAYWARD,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BROWN:
Q. State your name please, sir.
A. James R. Hayward.
Q. How are you employed?
A. I'm patrol and investigative Lieutenant of the Weld
County Sheriff's Office.
Q. How long have you been with the Weld County Sheriff's
Office?
A. Since January 1, 1978.
Q.
Have you had occasion to do bar checks and
investigations that led you to Ernie's?
A. Yes, I have.
Q. Specifically -- well, tell us what you recall about
those in the last year.
A. My involvement in actual street patrol has just been
recent, where I was assigned to nights for a while. In August
we had a second degree homicide that occurred in East Eaton.
Because of my assignment on nights, I get called to go to those
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types of calls. Because of getting called out to go to this
particular homicide, I was later contacted by the family of the
victim of the homicide, and their concern was Ernie's Bar.
That it was a contributing cause to their son's demise. At
that point, I'm somewhat obligated to look into some allegations
or possible infractions of that establishment.
Q. Were you able to draw any conclusions, on you own,
if Ernie's in any way contributed to the incident?
A. I don't think it contributed directly to that
particular homicide. It was a wedding party. The wedding
occurred at another location. The reception occurred at another
location and then some of the wedding participants and wedding
party migrated to East Eaton. Some of the individuals involved
in the wedding were inside the bar. One of the witnesses, not
to the incident itself, helped us place the suspect, in fact,
in town that night. He rode up with the suspect, and was a
16 year old boy that was drinking inside of Ernie's.
Q. That was the suspect?
A. That was not the suspect. He had driven up with the
suspect that night.
Q. Okay.
A. Some of the other participants within the homicide,
be they witnesses or whatever, were not involved with drinking
inside Ernie's. There was quite a few juveniles as witnesses
outside the establishment late at night.
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Q.
Were they -- had they been in Ernie's?
A. Some of them have been in Ernie's in the past. On
that particular night, it's hard to say, because our initial --
our largest concern was to get information concerning the
homicide, not liquor violations at that time. It was later in
the investigation that we did try to find out if there was
any capacity to whether or not they were drinking in Ernie's.
The only one that I really came up with was the 16 year old.
Some of them fear that they're going to get in trouble,
regardless of whether you tell them they're not. I did find
out that juveniles, when they do go into the bar on other
occasions, that they are stamped "Void" -- allegedly stamped
"Void" on their hand so they're not served drinks inside of
the bar. So they can be distiguished between other parties
that are of age.
On this particular night, a 16 year old stated he was -- he
received a beer from his girl friend's parents, not the liquor
establishment itself.
The specific participants, the suspect, we're unable to
talk to; his attorney will not allow that, so we don't know if
he drank inside the bar. Some of the witnesses around him were
his family, and they haven't been overly cooperative in the
matter. Some of the other witnesses were juveniles and
obviously weren't in the bar and couldn't tell us if these
people had drank. So, we ran into a lot of problems concerning
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that.
Q. Have you had occasion to be in Ernie's and determine
that juveniles or an under aged patron was being served?
A. Yes, I have.
Q. When did that occur?
A. On September 7th, 1985. Deputy Ed Herring was in
East Eaton and he had made a car contact where the four
occupants of the automobile exited and left the car in the
middle of the street. I then responded up to East Eaton to see
if I could locate any of those persons. Myself and Deputy
Cooch arrived and we did a bar check to see if we could find
four individuals that could meet that description that left the
particular car that Deputy Herring had stopped.
We went into the establishment. There was approximately
15 people in the bar, icluding security. We saw four
individuals by themselves over on the south wall at a booth.
Everybody else was either close to the door or up at the bar
itself. We made contact with those four individuals. One
spoke English, the other three didn't. We asked for forms of
I.D. and I believe we received forms of identification from
three of the four. There was a beer in front of each one of
the individuals; no food on the table. The one individual that
we later identified as being under age did not look up; did not
speak English. He did, eventually, with the help of security,
produce identification. It wasn't any identification I'd ever
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seen before, so I couldn't tell you if it was valid or not.
It was all in Spanish, but the numbers 64, 11, and 10 were
in sequence on it. He told us, through the security, that his
birth date was This was September 6, 1985,
that would make him about short of being 21. He later
told us his birth date was and then he
changed that later on to So, looking at the
identification, I think his birth date's probably
So, he was 20 years of age. He was subsequently arrested
I don't know his status, I think he was an illegal alien. We
did get identification of the party that spoke English at the
place. He identified the bartender that served them. The
bartender subsequently made a voluntary statement to us of,
yes, I served them beer. And, that was about all we got out of
him for the rest of the evening.
MR. MICHAELS: For the record, I would like to object
to that being considered by the Board. Again on the grounds
that that occurred on September 7th. The preliminary probable
cause hearing was August 26th. And, I think that the Board
is limited to consider those issues and allegations and
incidents as presented at that time.
MR. BROWN: I would certainly not agree with that.
I think the probable cause hearing is just to determine whether
we have a hearing here. This violation certainly fits within
the allegations that have been laid before the Board. It fits
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within those because it's a service to a minor or under age
occupant of the bar. I think the question before the
Commission is wie_ther or not to renew the liquor license based
upon the conduct of Mr. Llamas. And, it is perfectly within
your right to consider any, and all violations on any conduct
that occurred in the bar up to this point; because you are
charged with deciding whether to renew that license.
MR. MORRISON: The matter to Board needs to consider
is whether Mr. Llamas had adequate notice that issues such as
this could be raised. So, you have to look at your Resolution
finding probable cause and determine whether this evidence
fairly falls within the notice given there. It is -- there is
within that, a statement regarding violations with respect of
serving under -age patrons.
COMMISSIONER KIRBY: So, you don't think the time is
essentially significant, then?
MR. MORRISON: I think it's more the matter of the
type of violation. It is for the Board to decide. My opinion
would be the violation is more critical than when it occurred.
CHAIRMAN JOHNSON: Any objection in terms of admitting
this in evidence? No objections? You may continue.
Q. (By Mr. Brown) Have you spoken to any residents of
the area?
A. Yes, I have.
Q. Specifically, if you're at liberty to tell us, who
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have you spoken tb?
A. Subsequent to the hearing, the previous hearing here,
I did talk with Mary Archibeque, who has been a long time
resident of East Eaton; Paul Gomez, who has been a long time
resident of East Eaton. That was subsequent to the hearing
also, just outside of counsel chambers, here. Specifically about
their opinions as to what to do with Ernie's Bar. I have
spoken to other people. I have spoken to Ernie, himself on
two or three occasions. That's probably the extent of it, I
guess.
n.
Did Mrs. Archibeque indicate to you, during the
conversation with you, that beer was being taken out of the
bar and being allowed to be taken out of the bar?
A. Yes, she did.
Q. She indicated she had observed that happen?
A. That's what she indicated; that she had seen alcohol
sold and taken out of the bar. Also, that alcohol comes outside
the doors and is given to people outside the bar. She also
stated that her son has been drinking in this bar since he was
16 years old, currently he is 20. And, he has quit going over
there, according to her, since the homicide that occurred
August 3rd.
Paul Gomez registered his complaints about noise that the
people that come into the area make, kids left outside, the
litter. He's lived there 30 some years and he felt that it was
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probably one of the worst times for this particular
establishment.
Both of their opinions were that they wanted the place
closed, as far as a bar. I don't believe they were opposed to
it becoming something to the effect of a grocery store or
whatever.
MR. BROWN: I believe that's all.
CROSS EXAMINATION
BY MR. MICHAELS:
Q. Lieutenant, have you had any direct conferences or
consultations with the owner, Mr. Llamas?
A. Yes, I have.
Q. And, what dates were those on, the substance of those
conversations?
A. One of them was approximately three or four days, or
later, after the homicide. I stopped in at the bar to talk with
him in the area between the restaurant and the bar, it's kind of
put together. I asked him if he had any problems if we stepped
up some bar checks of the establishment. That, we'd like to
develop arapport with his staff, with the people of East Eaton
on our drive throughs. To show that we -- you know, we're trying
to be friends with them all. Because, the last person they want
to talk to up there is the police. That we wanted to be able to
come into the bar area and talk with these people openly and
friendly back and forth. That, we did not want to harass them
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in any manner. By stepping up the bar checks we didn't want to
create any hardships for people that are coming there, that
don't want us there trying to run them off and that type of
thing. That was in early August. Then, I talked to him
briefly outside after the last hearing about the same type of
thing. And then, real briefly on the evening that this
gentleman was arrested for under -age at the bar.
Q.
Now, at the preliminary hearing in this, you testified
that Mr. Llamas was kind of, I think you used the phrase
"double edged sword" in reference to this. That he was sort of
"damned if he does and damned if he doesn't," as far as
cooperating and contacting the Weld County Sheriff's Department,
would you elaborate or explain that, please.
A. I think this is something that has to be watched
carefully -- these matters. If a problem does occur inside the
establishment something that he needs to do to get it rectified
is to call the Sheriff's and I think if you find him being the
reporting party, reporting problems within the bar, I think one
would try to take that that he's doing his job to bring the
problems forth to get it simmered down. Also, to request drive
throughs at his establishment, or also get out and come into
the business trying to show that no problems will occur.
That, the establishment and the police work hand -in -hand.
You don't see him as the reporting party very often. He,
may, if the thing occurs outside, but then our main concern is
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to handle the initial call itself and not necessarily the liquor
problem. And, on this we've had to go back and try to
re -interview these people, possibly to see if they were, in
fact, drinking inside and so forth. So, I think/you have to be
real careful in these matters. Is he taking steps to keep the
place clean? Is he sweeping it under the mat? Is he pushing
it outside? Is the establishment itself creating problems?
For instance, when I drive through, my shift is from three to
midnight and I try to hit it once or twice in a shift. If the
bar is closed, you don't find anybody hanging out on the street,
you may see a couple of cars parked on the street and that's it.
If the bar's open you find lots of people standing outside,
sitting in cars, music coming around, throughout the night. So,
that's the kind of thing I look for.
Q. Now, these people don't necessarily have anything to
do with Ernie's Bar?
A. They may or may not. I suppose if you stopped and
talked to them and asked them if they've been in or are planning
on going in, you could determine that. But, when the bar's
open, it has.a tendency to attract them. When it's closed,
there's usually not anybody out there. There's more activity
if the bar's open.
But, the murder at the wedding, you didn't testify to
Q.
this as yet, but, was there a keg of beer that was at some
location near Ernie's Bar, was there a party away from Ernie's
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Bar?
A. I honestly don't know if the keg existed. I did not
see it. I went to the hospital first off and didn't get up to
East Eaton until approximately four or five o'clock in the
morning. I have heard that there was a keg that was there. I
don't know exactly when everybody got to that location. I
didn't personally observe a keg outside.
Q. But, the only connection you were definitely able
to make, was the 16 year old juvenile?
A. Iie was one major connection. Because, he come up
with the defendant.
Q. But, that's the only connection with Ernie's Bar?
A. On that evening?
Q. Yeah.
A. In the specific questions that we asked concerning
liquor problems, yes. That's the only one I could come up with
specifically attached to the bar and the homicide together.
Like I say, our major concern was the homicide, not the liquor
problem at that time. And, I talked to him three or four days
after the homicide.
Q.
Now, is it illegal, per say, for someone under the age
of 21 to be in Ernie's Bar?
A. Is it illegal or legal?
Q. Illegal, is against the law.
A. My understanding, because of his license, I think he
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can have somebody under the age of 21 in there. I'm not
positive on that. That's a question for the liquor enforcement.
But, that's my understanding, that they are allowed to be there.
Q. Is it, in your opinion, is it illegal for a juvenile
to be drinking a beer in the bar. Now, we have to assume this
is without the knowledge of the employees or the owner, I think,
but if his parents had slipped him a beer, is the bar
chargeable as a violation of state law?
A. I don't know. I think they probably would be. We
did not cite this matter, the only one we cited was the
20 year old.
Q. Now, that's the September 7th, --
A. On the 16 year old, I would imagine that they
could be cited because the management of the bar is to have
exercisable control there. They have to make sure that
everything is in order.
Q. Now, was there any proof on the September 7th
incident, that the bar sold the beer to that particular
juvenile?
A. The proof that I've seen is, the person identified as
the bartender stated he sold the beer to those four individuals.
He was fairly hot-tempered, but he did make that statement
outside. He also was a little worried. He stated he had just
gotton out of the penitentiary. So, I don't know what the
status of him is with the bar; but, he stated he was the
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bartender. He served those four individuals.
Q. Now, there was an assault of Alvin Jones. Is that
the attorney that was assaulted?
A. The attorney that I've heard was assaulted, he has
never made a case with the Weld Sheriff's Office.
Q. Okay, and that's not one of the alleged incidents
here?
A. On the attorney?
Q. Yeah.
A. I don't believe it is. I'm not sure.
Q. What has Mr. Llamas' attitude or what has he expressed
to you, when you talked to him about increased surveillance
by the Weld County Sheriff's Office, for instance?
A. He, in talking to me, he stated he welcomed that. He
didn't have a problem with it. He was willing to have us up
there. IIe has yet to call to have us come on a drive through,
that I'm aware of. But, said he didn't have any problem with it.
He felt that it wouldn't hurt his business at all. He didn't
have any major problems when he spoke straight out to me.
Q. Has he ever, in any of your conversations with him,
been anything less than cooperative with you?
A. A little bit, the night on the 20 year old being
arrested out there. But, I think mainly because he felt that
he was going to get charged. I think he wanted to be a little
leery of what he did or didn't say'and that's understandable.
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I don't hold that against him necessarily, but I think
when you're in business, I think probably the truth would be
the better matter. He kind of kept things slow. IIe didn't
really want it to happen for us to figure out who the bartender
was. I also realized that he was going to be a possible
defendant in that matter, and I respect his right not to say
too much, too.
Q.
How many times, do you know, has he contacted the
Weld County Sheriff's Department, he or an employee of Ernie's
Bar?
A. I'm not aware of any of the cases that are brought
forth. I'm not sure he's a reporting party on any of those.
I would say it's minimal, as far as him being the reporting
party. I can find that out.
Q. But, you don't really know?
A. I could get that figure.
Q. You stated at the initial hearing you haven't had any
problems brought to my attention with Ernie's Bar, or any of
the officers going in, so I would say, at least at this point,
it's relatively new, it's less than a month old, but he's
cooperating with the officers at this time, is that still a
correct and accurate statement?
A. I haven't really gotten anything that says he's been
less than cooperative with our office in matters. I've pulled
a number of bar checks with a number of officers that have made
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bar checks since August 4th to September 17th, and I have yet
to have one of them state that he's -- you know, pushy about
things or gives them any problem whatsoever. So, I'd say
at that point he's cooperating with the officers.
MR. MICHAELS: I thank you lieutenant. No further
questions.
MR. BROWN: We call Paul Halloran.
PAUL HALLORAN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BROWN:
Q. Would you state your name, please.
A. Paul Halloran.
Q. And, how are you employed, sir?
A. I work with the Weld County Housing Authority.
Q. In that capacity, do you have any relationship or any
contact with the East Eaton area?
A. Yes. We're currently conducting a housing
rehabilitation program, and I frequent the community to check on
the progress of those programs.
Have you had an opportunity to talk with the
Q.
inhabitants there around East Eaton and around Ernie's Bar?
A. Yes. As part of my work, I talk to the residents of
the community upon every visit, to see how well the work is
progressing.
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Q. Okay. And, have you talked to some individuals who
have indicated they're dissatisfied with Ernie's Bar?
A. Yes, I have. For about seven years I've worked in
the area and since that time there's always been dissatisfaction
with the bar. And, within the last year that sense of
dissatisfaction has increased. There's a feeling there, amongst
the residents that have worked there for a long time, that the
management is a little looser than it had been in the past, and
there's a greater sense of concern for the community welfare,
because of that.
Q. Okay. Do you have any specific -- were any specific
examples of ways that the management was looser expressed, that
you can recall?
A. Well, I can't think, at this point, outside of the
fact that they feel that the offenses that have occurred all
ready, were partly due to the management of the bar. The
murder was one, because of the individual involved. He was
very well known in the community. And, it was a sense that the
bar contributed in some way contributed "to',that incident.. In part
the serving of minors is another thing, that's been all ready
spoken to, that a lot of the residents feel is a corrupting
element in the community.
Q. Is there some dissatisfaction expressed in the
economic sense, that there's a development problem for East
Eaton, because of the bar?
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A. Since I've been working out there, there's always
been a sense of confusion in the larger community as to the
differentiation of the character of the community as to the
nature of the residents versus the nature of the bar clients.
And, because of that, progress and organization within the
community has been very difficult ; because, as most people will
perceive, that community it is as a area where you are taking
your life into your hands by entering into it. And, my sense
after having worked there these years, has been the exact
opposite is true. The residents, for the most part, are young
families with young children, elderly pensioners that have
absolutely no reason at all to break any law or create any
trouble for anybody else. And, because of the incidents over
the last years, there's been a gradual erosion of the community,
the opinion of that community in the larger community, and it
contributed to resentment or resistance towards assisting
that community and their projects that they have undertaken
in the last few years.
Q. So, the residents you've spoken to, that you have
contact with, do not frequent the bar?
A. Well, some of them do, but most would not.
Q. Have you seen anything that you would consider out of
the ordinary in the operation of the bar?
A. No, I can't say. The times that I've been in the bar
there have been fights, but that's something, I guess, you
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could expect in almost any one. No, I can't say. I, personally
couldn't speak to that.
MR. BROWN: I believe that's all I have.
CROSS EXAMINATION
BY MR. MICHAELS:
Q. What occasions were you in the bar when you witnessed
the fight?
A. It was New Year's Eve, 1984-85.
Q. And what happened as a result of that? I mean was
it -- were the police called, was the fight getting broken up?
A. Yeah, the individuals were taken outside.
Q. Okay. Other than the murder incident, what other
specific incidents have you heard from people that would
indicate the management is looser than it used to be?
A. I think I stated that. People feel there's a general
lack of control of the bar. Specifically, minors are being
served, that as people leave, there's very little control on the
behavior conduct of these people.
Q. Is that though -- and I sort of took your testimony
to -- or you were saying, over the years and things. Is there
a distinct -- can you distinctly attribute this to September of
1984, which was a year ago. Or, is it a collective sort of
opinion, formed over the years by various people?
A. Well, I could say that the people who live there have
expressed a distinct difference in the conduct of the bar since
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Ernie's taken it over.
MR. MICHAELS: No further questions.
MR. BROWN: I call Tracy Ehn.
TRACY EHN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BROWN:
Q.
State your name, please, sir.
A. Tracy Ehn.
Q. And how are you employed, sir?
A. Police officer for the town of Eaton.
Q. Okay. Your actual district or area of responsibility
would not cover East Eaton, is that correct?
A. It would not.
Do you have occasion, though, to be called in to
Q.
assist the Sheriff's Department on certain reports?
A. We do. Any time we're called for assistance we
usually try to respond to assist, yes, sir.
Q. In regard to that, in the last year, have you been
called over to assist?
A. Yes, we have.
Q. And, in what particular way have you assisted during
that time, sir?
A. We've been called over on several occasions. On
fights in progress. Some type of disturbance in that spectrum.
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Q. What would you find when you got there?
A. Most of the time when we arrived, upon arrival at the
scene we tried to sit back and watch until we got in a Sheriff's
deputy officer in the area, when we would go in with him. If
it's a nature that warrants us to go in immediately, if
somebody's been injured or upset we'll go in. Most of the time
when we arrive, when we get called to assist, the fight's been
broken up or the disturbance has been broken up. I don't have
the dates. We've been called over there on a fight in progress
and once our patrol unit pulled in, I believe there was four
of us officers, myself another full time officer and two
reserves. As we pulled in I heard somebody hollar, there's the
Eaton cops and our patrol car got it with beer cans.
Q.
Now, are these -- where are these people.
A. They're right -- as we pulled in from the north --
correction the south, off of Factory Road, going south -- going
north into East Eaton, it would be right across the street from
Ernie's Bar.
Q. Were they standing right there in the street?
A. No. They were up against the cars.
Q. What other -- have you had any problem in Eaton itself
from people that have been in Ernie's?
A. I haven't myself. We did have one report, I believe
that was on 6-15 of '85, when a party by the name of Billy
Johnson came into my office and wanted to talk to me about a
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Mr. Martinez -- correction, it would be a Mr. Maldonado, if it's
the correct pronunciation. The vehicle had been taken and in
talking to Mr. Johnson I asked him where the vehicle had been
taken at, he said in East Eaton. And, I said, we have to get a
hold of the Sheriff's Department, but, Mr. Johnson informed me
that Mr. Maldonado did find his vehicle. And, also stated that
a party by the name of Felix Martinez was seriously injured in
East Eaton. I asked him where Mr. Martinez was and
Mr. Maldonado did take me to 112 Maple Street -- Maple Avenue
in Eaton. Looking at Mr. Martinez, his jaw was swelling, was
swelling quite much. I'm no -- it just looked like it had been
fractured. Mr. Martinez could not speak English that well.
Mr. Maldonado could speak enough to try to translate. We asked
Mr. Maldonado to ask Mr. Martinez where this occurred at. He
stated it occurred at East Eaton. I advised Mr. Maldonado that
Mr. Martinez better be taken to the Weld County Hospital for
examination.;. We did leave there. Mr. Maldonado did take us to
where he found his car. We called the Sheriff's Department to
come in. I believe it was a Corporal Sykes, I don't remember
the name. And, upon finding the car, all the windows had been
broken out, the battery had been taken out, the vinyl top had
been cut. Mr. Maldonado was asked, once the deputy arrived,
what had happened. The reason I didn't ask him any questions
about the incident was he was scared. Illegal aliens afraid
they were going to get sent back home. I didn't want him to
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have to repeat his story twice. He was scared enough the way
it was. He stated to the Sheriff's deputy that he had been in
Ernie's Bar drinking, they'd come out, got into their car,
backed up and hit the rear end of another vehicle. And, these
people that had the other vehicle said something to him and
took after him. Mr. Martinez took off running and they caught
up with him and he doesn't remember how many times he was hit,
and he remembers going down.
Q. And, this all happened right out in front of Ernie's
Bar, right?
A. The vehicle messed up was taken from them by Ernie's
Bar. The car was driven to another party's residence, I believe
it was Rodriguez' residence in East Eaton. Another party with
Mr. Martinez, I did not get his name, but I'm sure the Sheriff's
Department did, took off running and they caught him on the
west side of the railroad tracks right next the the little park
there, we have in Eaton, between the railroad tracks and
Highway 85. The assistant said there was a report that started
in East Eaton. The vehicle being stolen, and as it followed
on down through, the assault occurring in Eaton, but in one
continuous episode. So, we turned everything over to the
Sheriff's Department.
Q.
Officer, generally there is -- is there other crime in
East Eaton, in the general sense, domestic disturbances, etc.?
A. I don't understand the question.
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Q.
Is there other crime, not related in any way to
Ernie's Bar, in East Eaton?
A. I'm sure there is.
Q. Do you have occasion to investigate those?
A. No, I don't.
Q. Do you have any opinion as to the frequency of crimes
compared to other parts of Eaton, that is in your jurisdiction?
A. I didn't understand that one either.
Q. What's the rate of crime in East Eaton as compared to
the part of Eaton that's under your jurisdiction?
A. For assault type crimes, I would have to say we're
low. I would say there's a little bitmorein East Eaton than
there would be on the west side of Eaton.
Q. What about domestic violence?
A. I would say, domestic problems, we probably have more.
Q. Now, the patrol car incident that was hit with the
beer cans, was that -- did your investigation reveal that was
in any way related to Ernie's Bar?
A. I couldn't testify to the relation with Ernie's Bar,
but the parties that we contacted had been drinking.
Q. And they were across the street?
A. They were exactly across the street from Ernie's Bar.
I think in front of the old Community Center, if I remember
right.
Q. And, there are houses there, too?
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A. I believe there's two or three houses just north of
the Community Center.
MR. MICHAELS: I have no further questions.
CHAIRMAN JOHNSON: I am going to ask for a five
minute recess.
(Whereupon a recess was had and the following
proceedings took place at 5:45.)
CHAIRMAN JOHNSON: Mr. Brown, I understand that
completes your presentation?
MR. BROWN: That's correct.
CHAIRMAN JOHNSON: Before we continue, I've asked our
attorney to advise us with regard to the submitted document,
Exhibit A.
MR. MORRISON: As I noted before, the issue -- well,
there's two ways, I think the document might be considered.
One is whether that should be allowed as being evidence possesin
possessing probitive value commonly accepted by a reasonable
and prudent manner in the conduct of their affairs. I also
would note that Article H (I) of the general proceduresunder
the administrative manual we ought to allow a brief memoranda or
other related information. And, using those two factors,
you should consider that information. Is that -- one, is that
relevant and two, is that something you would rely upon in
making decision in normal business. Keeping in mind that it is
acceptable to submit memoranda in something like this.
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hearsay.
CHAIRMAN JOHNSON: All right. Are there questions the
Board would like to ask Lee about that?
COMMISSIONER BRANTNER: Well, I have a question on
We have heard quite a bit of testimony that a certain
person gave statements which was related to the document, can
we go ahead and consider that, also? Because the persons are
not here to be cross examined, isn't that hearsay?
MR. MORRISON: Well, it is. But, again that's a
question of, is that information you would rely upon in your
normal course of business, not technical hearsay. So, it
doesn't have any value. Probitive means, does it have any
does it mean anything in terms of the decision you're being
asked to make. And, so if it goes for either supporting or
rejecting the proposition to have been a violation and it's
the kind of information you would accept as having some merit,
you can consider it.
COMMISSIONER BRANTNER: Exhibit A, we have direct
testimony from the people that were involved in this document.
They were cross examined, so is it possible then to go ahead and
accept this and then kind of read out what we think
MR. MORRISON: You also have, even if you accept,
discretion to give what weight is appropriate to any particular
piece of evidence. So, portions of this may be given less
weight. You've heard cross examination and may feel that it's
entitled to less weight than others.
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COMMISSIONER BRANTNER: How do we handle then, this
document. Would you handle it with a motion, or consensus,
or --
MR. MORRISON: Technically, it's the Chairperson's
decision, but they can consult with the remainder of you to get
your feelings in the matter.
CHAIRMAN JOHNSON: Well, I always do that. So, what
is the consensus?
COMMISSIONER KIRBY: I think it's helpful, inasmuch as
a lot of the information is corroborated with other testimony,
and I think it's useful.
CHAIRMAN JOHNSON: Other opinions -- dissenting
opinions?
COMMISSIONER LACY: No dissenting.
CHAIRMAN JOHNSON: Here and now, I think I will rule
that we will accept this into evidence.
Okay. I've explained to both of the attorneys the time
restraints of the Board. Mr. Michaels, you indicated you would
like to make some remarks to the Board, at this point, is that
correct?
MR. MICHAELS: It is my understanding that I will be
allowed to present some brief testimony just to clarify a few
issues that have been raised so far.
The second phase of the hearing is one that will be more
substantial as far as we're concerned. We have more testimony.
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We have more evidence to put on as to the counsel, the Board,
for consideration in Phase 2. What, if any, sanctions should be
imposed. But, I just have some brief testimony now, with the
understanding we'll be allowed to present our Phase 2 evidence
at a later hearing.
COMMISSIONER JOHNSON: All right. If you will
proceed, then.
MR. MICHAELS: Thank you. I would recall Mr. Sauter,
briefly.
DAVE SAUTER,
having been previously sworn, testified on his oath as follows:
DIRECT EXAMINATION
BY MR. MICHAELS:
Q. Mr. Sauter, for the purposes of clarification, what
is the -- it's not illegal for a person under 21 to be present
in Ernie's Bar, is that correct?
A. That's correct. The only age requirement, as far as
the repeal establishment, is that a person can not procure or
have in his possession, or be sold any malt, vinous, or
spirituous liquor. If he
s two months old, he can be in there,
but he can't have in his possession or be procuring, by getting
it from his patents, things of that nature.
Q. Now then, if the situation was such that parents or
whoever supplied the juvenile with an alcoholic beverage, did
so in such a way that even the most attentive proprietor
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couldn't detect it, he wouldn't be guilty of a violation under
that circumstance, would he?
A. The law simply states that they cannot have in their
possession or procure. The licensee cannot allow them to
procure or have in their possession a malt, vinous, or
spiritiuous liquor.
Q. Now, outside of the summons and complaint that was
issued on September 7th, Mr. Llamas has never been issued any
official violation or summons or complaint by the licensing
authority or law enforcement officials, is that correct?
A. I believe that's correct. To my knowledge we do not
normally issue summons' or unless it warrants it. ?7e feel you
can go either way, given the statutes' directions. However, we
usually like to take the reports and respond to the local
licensing or the state authority and let them make the
decisions. We can, for instance, go back and cite a violation
through criminal court. However, needless to say, the court
system is back logged enough so we have another avenue and we
pursue the other avenue.
Q. But, there were no violations through the criminal
court, either, is that correct?
A. Except for the one incident.
Q. September 7th?
A. Correct.
MR. MICHAELS: No further questions.
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CROSS EXAMINATION
BY MR. BROWN:
Q. I just have a couple of questions, with regard to
controlling what goes on in the establishment. What, exactly
is the owner's or operator's obligation with regard to
controlling his premises?
A. Okay. On several state hearings, we've had in the
past, this has been covered in detail. The licensed premise is
defined by a diagram. The licensee is licensed to sell, not
for taking liquor, malt, vinous, or spirituous liquor off the
premise, and that would be the physical structure. However,
the licensees' premises are his responsibility. By reasonable
means extends to its immediate leased area, such as if there's
a vacant lot incorporated in his lease, or his additional
parking area that his patrons would frequent. Because they are
procurring his business, they are operating his business and
that's how we've handled it at the state hearings in the past.
Q. So, there is a specific area within which he can sell
liquor, is that correct?
A. Correct.
Q. But, he is also expected to control areas outside of
that, as far as having liquor removed from -- things that go on
in the parking lot, things of that sort?
A. To some extent, within reasonable grounds.
Q. If people are getting intoxicated in his establishment
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and going out to the parking lot and fighting, is he expected
to control that?
A. If they're intoxicated that's aviolation in itself.
If they were intoxicated in the bar and pushed out into the
parking lot, yes he would be responsible for their actions
because of the previous violation in the bar.
Q. So, he's not to handle it simply by pushing them out
in the street?
A. Correct.
Q. Now, the statute cited, Mr. Sauter, on Exhibit A, the
first page in charge two, 12-47-128 (1) (a) says: it is unlawful
for any person to sell, serve, give away, dispose of, exchange,
deliver or permit the sale, serving, giving or procurring of any
malt, vinuous, or spirituous liquor to any person under the age
of twenty-one. So, then it is not illegal, per say, for
someone to be in a bar that has someway obtained a liquor,
unless the establishment permitted it, now, isn't that true?
A. Well, I think the statue says that he can not allow
them to procure, which the definition I believe is obtain, an
alcoholic beverage.
Q. But, the statute does not say possess?
A. I just want to refer -- well, the 128 to 180 does
state in the second sub -section that the individual cannot
possess. That would be a charge against the individual himself
for possessing. Procurring is the operator letting the person
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have the alcoholic beverage in his establishment.
Q. Letting the person have it?
A. Correct. And, that's my viewpoint on what procurring
means, letting him obtain it.
MR. BROWN: Thank you. That's all I have.
COMMISSIONER JOHNSON: Mr. Michaels, do you have any
other testimony?
MR. MICHHAELS: Yes, I do. I want to call Stella
Rosalez.
STELLA ROSALEZ,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MICHAELS:
Q. Would you state your full name and your address for
the Board.
A. Stella Rosalez. 441 Wall Street, Eaton, Colorado.
Q. And, where is your home located in relation to
Ernie's Bar?
A. It's connected to Ernie's Bar. Right next door.
Q. How many feet separates them?
A. It's really not separated. It's connected right to
it.
Q. What -- on August 3rd, of 1985, in the proximate
location of your house, was there a murder following a wedding
party?
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A. There was a murder there. But, according to what I
seen, I seen the victim across the street with blood. Now,
the fight did occur in front of my home.
Q. What involvement did you have with the wedding and the
party and the --
A. We went to the wedding and then when we got home, I
don't know how they ended up moving their truck from the other
side of Ernie's Bar to our driveway, but -- I don't know how
to explain this, okay, I was standing right outside when the
fight started.
Q. Now, was there a keg there?
A. No. I guess they had moved the keg there, but it
disappeared and they were going crazy looking for it there for
awhile.
Q. How long after the wedding did this incident occur?
A. Oh, I can't remember. Maybe half an hour after we
all got back to Eaton.
Q. So, there was only -- was anybody drinking or involved
with Ernie's Bar, in any way, that was in the wedding party?
A. I didn't go into the bar, so I don't know who, from
the wedding party, was in there.
Q. Do you know, whether or not the suspected perpetrator
of the crime or the victim were involved in Ernie's Bar at all?
A. I knew the victim a little bit, and from what I know,
he never went in there.
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Q. There was drinking at the wedding?
A. Yes. They had keggers at the wedding.
Q. And, you'd only been there half an hour before the
incident happened?
A. Yeah.
MR. MICHAELS: No further questions.
CROSS EXAMINATION
BY MR. BROWN:
Q. I'm sorry, your full name is what?
A. Stella Rosalez.
Q. Okay. And, how are you related to the actual owner
of the property in which Ernie's is on?
A. The owner is June Rosalez, she's my sister-in-law.
Q. She's your sister-in-law?
A. (Gesture.)
Q. Okay. And, did your husband own the bar prior to her
obtaining it?
A. My husband never owned that bar.
Q. Never owned that bar. With regard to the stabbing,
you indicated that you saw this fight start?
A.
Uh-hmm .
Q. And, who did you see start the fight?
A. Rudy. The victim, whatever you want to call him.
Q. Okay. And, did you see who actually stabbed the
victim?
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A. No.
Q. Where had you gone to, at that point in time?
A. I was in front right there where the fight was going
on at. But, I was hollering for my husband.
Q. So, you weren't looking at the fight when the stabbing
occurred?
A. No.
Q. I notice you said the victim, as far as you knew,
had never been in the bar.
A. Right. As far as I know.
Q. Did you know the suspect?
A. The suspect? There were a lot of suspects. Now,
two of them, two of the suspects -- well three of them, that
they took in that night were my brothers.
Q. Okay. What about the other one?
A. Excuse me.
Q.
You said there were three. Were there any others
that were taken in that night?
A. They were just looking for my brothers, that I know
of.
Q. Okay. Have your brothers ever been in Ernie's?
A. My oldest brother has.
Q. Was he also taken in?
A. Yes. But, he wasn't even he just got there when
the detective was investigating my husband, was when he got
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there.
Q. So, your family is involved in the investigation of
this murder?
A. Uh-hmm.
MR. BROWN: That's all I have.
MR. MICHAELS: No further evidence in this tier.
CHAIRMAN JOHNSON: All right, thank you. It is my
understanding we are at a point where we have the task of
determining whether or not --
MR. MORRISON: Any of those claims set forth on the
probablecausefindings. Whether the burden has been met by, in
effect, the prosecution. And, if you do make that, then we will
go to Phase Two.
COMMISSIONER JOHNSON: Just to remind the Board, again
the findings were the violations over the last year period of
the Colorado Liquor Code. Specifically, serving liquor to
persons under the age of twenty-one, serving to visibly
intoxicated persons, and failing to conduct the licensed premise
in a respectable manner, etc. I think those are all outlined
in your resolution, which is part of the packet with the long
sheet in it.
And, secondly, evidence showing excessive noise, rowdiness,
or disturbances on a continuous basis in the immediate,a'ea of
the licensed premise,which has been substantially as a result
of the operation of the licensed premise. Those are the things
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that we have to determine having been proven or not proven.
MR. MORRISON: Right. And, you can find any or all.
It does not have to be, for you to proceed in the next phase,
you need not find all four. You need only find one.
COMMISSIONER BRANTNER: If we find a violation of our
ordinance or state statute?
MR. MORRISON: Either.
COMMISSIONER BRANTNER: Either.
MR. MORRISON: But, the real standards are set in the
state statute, or primarily set. The other factors are items
that -- the second factor is items that appear in cases
regarding the renewal or suspension.
COMMISSIONER BRANTNER: That's Phase Two?
MR. MORRISON: No. That's Paragraph 2 of your
probable cause. There's evidence showing excessive noise,
rowdiness, and disturbances. Case law supports the finding of
that as the basis for not renewing. The other matters are on
One, A, B, and C, and specifically items that are set forth in
the liquor code as being unlawful conduct.
COMMISSIONER BRANTNER: Do you do it by motion?
MR. MORRISON: You can. Once again, you have -- your
final decision has to be made on the record. You can discuss
individual facts and ask for legaladviceoff the record and
in executive session. I don't encourage that. But, a motion
saying that the burden has or has not been met, possibly on each
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of these, I think would be the best way to proceed.
COMMISSIONER BRANTNER: You need a motion on each
one?
MR. MORRISON: It's up to you. You could make a
motion that all had been met. If you feel one hasn't been met
you have to vote against that, so maybe the best way would be
to go through each of those and make a finding.
COMMISSIONER BRANTNER: Do you need a comment on the
motion? If we feel it has been met or not met, is that
MR. MORRISON: Yes. Any findings you might make,
either specifically or in general, are facts that support your
motion, or facts that are lacking.
COMMISSIONER BRANTNER: Madam Chairman, I'm going to
move that it has been shown -- proven -- help me with the
wording. Is that right?
MR. MORRISON: The burden of proof.
COMMISSIONER BRANTNER: The burden of proof has been
met in the show cause for the non -renewal of Ernie's Bar
license. Based upon the testimony given to date, proving that
there have been violations in the last one year period by
Mr. Llamas, by any of the servants or employees before the
division of the Colorado Liquor Code and the rules and
regulations authorized pursuant to it. Relating to: serving
malt, vinous, or spirituous liquor to persons under the age of
twenty-one years.
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We have heard testimony from Lieutenant Hayward, that he
in direct investigation, had a 16 year old testify to him that
he was served in the bar. September 7th, there was also a minor
served. There were two instances of direct testimony of being
served of people under twenty-one years of age.
Serving malt, vinous, or spirituous liquor to a visibly
intoxicated person. We heard direct testimony of Officer
Ed Herring that he has sat on various occasions and observed
intoxicated people being carried out and placed in cars or
pickups. It was in his opinion, as a police officer, that these
people were intoxicated to the point that they had to be
carried out.
Failing to conduct his licensed premise in a decent,
orderly and respectable manner. Permitting on his licensed
premise service of apparantly intoxicated persons and permitting
profanity, rowdiness, and other disturbances, offensive to the
sense of an average citizen, or the residents of the neighbor-
hood in which the licensed establishment is located. I think
every witness that testified, there was testimony given to
direct relationship of their visual observance of disorderly
Of the area. The intoxicated
conduct, plus uncleanliness
backing of cars. I think it was very evident by Lieutenant
Hayward's testimony that when the bar was closed, the people
that came to the bar -- when the bar was closed, there were not
these people there. There were not that many people on the
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streets. We also heard testimony that most of the people were
not from the area, so, therefore, it was not neighborhood
people that were on the street. That, there was people coming
into the area to frequent Ernie's Bar.
That, there's evidence showing excessive noise, rowdiness,
and disturbances on a continuous basis in the immediate area of
the licensed premise. I think my previous statements would
substantiate that.
I would also like to add as basis of my motion, testimony
from Paul Halloran, of his observance and visiting with the
people in the area , of how the bar contributed to the, not
only the fights, assaults, and other bad activities, but also
the reputations that accompany this. And, I felt that Paul
testified and satisfied my judgment that the bar did contribute
to that.
CHAIRMAN JOHNSON: Is there a second of this
motion?
COMMISSIONER KIRBY: I'll second.
CHAIRMAN JOHNSON: Motion made by Gene, seconded by
Bill to conclude that evidence has been presented to find cause
based upon the probable cause criteria that was established in
our resolution. Is there discussion on the motion?
COMMISSIONER LACY: I have a little problem. I don't
have a problem with most of the motion, I have a problem with
one part of the motion. And, I guess if we went on these one
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by one, I could have voted against my part.
CHAIRMAN JOHNSON: Well, I guess Gordon, that's what
discussion is for and as Lee pointed out the purpose is that if
we concur that in any one of the instances that has been the
case, that we do, in fact, have reason to continue with part
two.
I think it is perfectly appropriate for you to --
COMMISSIONER LACY: I cannot vote against the motion,
because this has been proven in most instances. And, I guess
I would have to take a long look at it. In the period, and
when you get down to where you say, distributes on a continuous
basis in the immediate area of the licensed premise, which has
been substantially as a result of the operation. In other words,
I have alittle problem with all of that, because of so much of
the activity coming in from outside the area and being involved
with what's going on.
I agree with you, Gene, on the serving of a minor. I
agree with the testimony that we had, as far as the visibly
intoxicated person, or people coming out.
So, that was the only part that I had. I would vote yes
for the rest of the motion, that was the only part.
COMMISSIONER KIRBY: I think we can address some of
those things as to mitigating or similar circumstances. I think
we can go on to Phase Two, as far as the degree. And, so I
don't have any problem with it and I think items three and four
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certainly were not proven in the evidence. That the licensee
is no longer a good character, or that --
CHAIRMAN JOHNSON: Those weren't even under
consideration.
COMMISSION KIRBY: No. Those weren't under
consideration, of course.
CHAIRMAN JOHNSON: Other comments? There being none,
I will call for a vote on the motion. All in favor say aye.
(Whereupon, all commissioners answered aye.)
CHAIRMAN JOHNSON: The motion is carried. It would
appear then, that we should probably set a time to continue
this hearing, so that we can proceed with the second phase.
MR. MORRISON: Yes.
CHAIRMAN JOHNSON: And, I think we have a complicated
factor with regard to the renewal time which is the 5th of
October.
MR. MORRISON: Well, it's my understanding that
a letter, at least under similar circumstances, that we can
issue a letter -- if we have to continue past the fifth --
issue a letter to Mr. Llamas, and adivse the State that the
reason that the renewal has not come through is that it's still
under consideration. So, that he would be allowed to operate
under the letter and Mr. Sauter would be aware that it would not
be a violation, to not have the renewal.
COMMISSIONER KIRBY: So, we could continue for two
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weeks?
MR. MORRISON: We could continue for two weeks. That
is my understanding. And, the contact with the State indicates
that, as well.
MR. BROWN: That's a problem for us. Mr. Sauter will
be out of the state for about three weeks, beginning on the
9th of October.
COMMISSIONER BRANTNER: Mr. Sauter, would you concur
with our attorney's opinion on, that they can operate without
a license with this letter?
MR. SATJTER: That's correct. In the administrative
procedures act, if the license is being held up by a
administrative procedure, then the existing license (inaudible)
until that matter is resolved.
CHAIRMAN JOHNSON: The Board of Commissioners will be
out of town the first through the 4th, and you will be gone
the 9th. That would make the next Wednesday the 16th of
October.
COMMISSIONER KIRBY: He's leaving on the 9th.
COMMISSIONER BRANTNER: Do we have to have a certain
amount of time? Can we act on it, even this week?
MR. MORRISON: You need to give the parties an
opportunity to present mitigating testimony as to litigation.
Your decision still may require more testimony. It doesn't
have to go a week, if we could find the time and everyone else
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could be here.
COMMISSIONER KIRBY: But, we don't really have a
satisfactory time
CHAIRMAN JOHNSON: The 7th would be available,:the 8th
we begin budget hearings. So, we're not available on those
dates.
The 30th of September is a Monday, I don't know whether
we could meet in the afternoon on Monday. Or, following the
Board meeting Monday morning.
COMMISSIONER KIRBY: I would think if we have to set
it for the 7th, we ought to set it for like 1:30 in the
afternoon.
CHAIRMAN JOHNSON: All right. If there's no objection
we'll set that hearing for Monday, October 7th at 1:30?
Hearing no objection, we will do that. We will adjourn the
meeting at this time to be continued at the date just given.
(Whereupon the meeting was adjourned at 6:20.)
Seal
Certified a true and complete transcript.
Dated this
144-
day of October, 1985.
7
Valerie S. Antthna
Shorthand Reporter
Notary Public
My Commission Exp1M1
Must 30/ ,19*
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