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HomeMy WebLinkAbout2017-07-20 Liquor Adjudication Board Minutes COUNTY OF HAWAII DEPARTMENT OF LIQUOR CONTROL LIQUOR ADJUDICATION BOARD THURSDAY, JULY 20, 2017 DEPARTMENT OF LIQUOR CONTROL WEST HAWAII CIVIC CENTER, 74-5044 ANE KEOHOKALOLE HIGHWAY, BUILDING B, 2ND FLOOR, KAILUA-KONA, HAWAII I. Call to Order The meeting was called to order by Chair Bryan Lindsey at 10:00 A.M., in the Meeting Room, Department of Liquor Control, West Hawaii Civic Center, 74-5044 Ane Keohokalole Highway, Building B, 2nd Floor, Kailua-Kona, Hawaii. The following were present and constituted a quorum: Adjudication Board: Bryan Lindsey, Chair Sidney Fuke, Vice Chair Andi Pawasarat-Losalio, Board Member Riley Smith, Board Member Absent and Excused: Geraldine Giffin, Board Member Brandon Gonzalez, Administrative Officer Others Present: Gerald Takase, Director Renee Schoen, Assistant Corporation Counsel (Department) Craig Masuda, Deputy Corporation Counsel (Board) Stacie Waltjen, Licensing Tech I Nyssa Aoki, T/A Secretary to the Board Lindsey: Good morning everyone, I'd like to call this meeting to order. At this time we'd like to ask the people present to silence their mobile devices. I'd like to begin with introductions starting immediately to my left. Fuke: Good morning. My name is Sidney Fuke, Board Member. Pawasarat-Losalio: Aloha, my name is Andi Pawasarat-Losalio, Board Member. Takase: Gerald Takase, Director. Waltjen: Good morning, Stacie Waltjen, Licensing Tech I. Aoki: Good morning, Nyssa Aoki, T/A Secretary to the Board and Commission. Schoen: Renee Schoen, Assistant Corporation Counsel. Pintor: Good morning, Abra Pintor. I do the PR for Ultimate Burger. Smith: Riley Smith, Board Member. Masuda: Craig Masuda, Counsel for the Board. Lindsey: Bryan Lindsey, Chair. Lindsey: Thank you. II. Approval of Minutes Lindsey: The April 20, 2017 meeting minutes were circulated via e-mail/mail on July 13, 2017. Motion to approve? Smith: So moved. Fuke: Second. Mr. Smith moved that the April 20, 2017, Liquor Adjudication Board minutes be approved as circulated; seconded by Mr. Fuke. Lindsey: It has been moved and seconded. Is there any discussion? There was no discussion from the Board Members. Lindsey: Hearing none. All those in favor say "Aye." The Board Members voted "Aye." Lindsey: Those opposed, "Nay." There was no opposition by the Board Members. Lindsey: Minutes approved. The motion was carried unanimously. Ill. Hearings Lindsey: We'd like to go immediately into Case No. 2017-009, In the Matter of the Accusation Against Slingshot LLC, dba Ultimate Burger, located at Kailua-Kona, Hawaii. An Informal Hearing on violation of Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii, for failure to have a person in active charge of the premises at all times while the premises was open for business to provide proper supervision. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 2 1. CASE NO. 2017-009 (10:00 A.M.) In the Matter of the Accusation Against Slingshot LLC, dba Ultimate Burger, located at Kailua-Kona, Hawaii. Informal Hearing (Alternative II) on violation of Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii, for failure to have a person in active charge of the premises at all times while the premises was open for business to provide proper supervision. Abra Pintor, Area Manager, was present. Lindsey: I'd like to ask the Licensee to identify themself. Pintor: Abra Pintor. Lindsey: At this time, I'd like to ask Counsel to please read the Complaint and the Answer to the Complaint. Schoen: Yes, Mr. Chair. The Complaint states that on or about the 14th day of March, 2017, in the County and State of Hawaii, Slingshot, LLC, dba Ultimate Burger, did fail to have a person duly approved by the Department of Liquor Control as a person in active charge of the premises at all times while the premises was open for business to provide proper supervision in the exercise of the liquor license in accordance with the liquor laws, in violation of Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii. The Licensee has chosen Alternative II, in accordance to the allegations and stipulates that disciplinary action may be taken, waives a right to a hearing and appeal and requests that an informal hearing be held explaining the circumstances regarding the violation. Lindsey: Is there a motion to find Licensee in violation? Smith: So moved. Fuke: Second. Mr. Smith moved that the Licensee in Case No. 2017-009, be found in violation of Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii; seconded by Mr. Fuke. Lindsey: It has been moved and seconded. Is there any discussion? There was no discussion from the Board Members. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 3 Lindsey: No discussion on the matter at this time. All those in favor say "Aye." The Board Members voted "Aye." Lindsey: Those opposed say "Nay." There was no opposition by the Board Members. Lindsey: Chair votes "Aye." Motion carried. The motion was carried unanimously. Lindsey: Prior to assessing a penalty, you may proceed with your presentation of the circumstances surrounding the violation. Pintor: First of all, I want to apologize because we were wrong. Our employee, Dani, did have her blue card but we did not have proper paperwork filed and her name was not on the list. We also had a manager that was irresponsible and did not take this matter seriously. I understand there are other violations and we have since then let that manager go. We are under new management now. We have two young ladies that are very responsible and do take this matter seriously. Two of our new employees just got their blue card a couple weeks ago and in the next two sessions, we also have more employees signed up. Moving forward, the goal is to never let this happen again. I want to explain that we do take this seriously and we understand the violation. We are sorry and know that it is important to follow the rules. I understand we will be fined and we will take whatever fine you feel is right. We are asking for leniency and a chance to prove we are going to not let this happen again in the future. Lindsey: Thank you. At this time, the Chair will entertain a discussion for the Board to ask questions to the Licensee. Fuke: I have a couple of questions. Apparently, there was no person in charge for about a three-hour window from 5:00 P.M. to 8:00 P.M? Pintor: Mmhm. Fuke: Do you have any idea as to how much alcohol was served in that time? Pintor: The Investigator there asked to see the sales. Were they able to pull that information up? Takase: I want to say they weren't able to discern if any liquor was sold. Pintor: Oh okay, that was my misunderstanding. Dani, the girl at the register, did have her blue card. My understanding is that it wasn't on the paper, so it doesn't count? JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 4 Takase: I would say it at least mitigates that. Dani was a previous blue card holder at another establishment. They weren't completely without a manager, but the requirements of the rule are that they be blue card holders and that they also are designated by that Licensee as one of their managers. Fuke: So this was more of a technical violation? Takase: In a sense. But as you'll find out from Renee, this isn't the first time they've had problems. I think that's the frustration from the Investigators because they've been trying to work with this Licensee and this still has happened several times. Fuke: This is not the first time. Is this the allegations you were alluding to? Pintor: I was informed that there were a couple others. Takase: It may have happened before she came on. Pintor: I don't really know any details and I don't know when that happened. Takase: My recollection is they were cited twice for no manager on duty and it happened close in time. We would have normally treated this as a third violation but we are treating it as their second violation because the first two were back to back. We treated those both as a first violation. Fuke: One final question. So the establishment is "Ultimate Burger." Is the specialty hamburgers? Pintor: Yeah. Fuke: What kind of clientele do you typically have? Pintor: We have a lot of tourists. We also serve families and couples; pretty much anyone that likes a burger. Fuke: So burgers are the primary sale and alcohol is incidental to that? It's not reversed, like going to a lounge? Pintor: Yeah. We sell beers to guys after work. They come to eat and like to have a beer with their burger. Fuke: Thank you. Lindsey: Do we have any other questions from the Board Members? JULY 20, 2017 LIQUOR ADJUDICATION BOARD MINUTES 5 Smith: I have a question. So in the situation where you didn't have a blue card holder that was identified on your list, did someone not show up to work? What were the circumstances? Pintor: The previous manager had left. Smith: Was he scheduled to be there and didn't stay? Pintor: Yeah. He put the restaurant in that predicament. If it was slow, he would come and go and say, "Call me." Obviously, that wasn't okay and we had to let him go because he was being irresponsible by not taking his duties as a manager properly. I think he's been gone about a month to a month-and-a-half. It was a process of trying to work him until we could fire him because there is a legal process. It did take us some time to go through the proper channels to make sure we were letting him go for proper reasons. Pawasarat-Losalio: I have a question. How long was that manager employed with your organization? Pintor: A couple of years? Pawasarat-Losalio: For a while? Pintor: Yeah, he's been there for a couple of years. He started off doing a decent job. For whatever reason, I don't know why but in the last six months or more, maybe he got burnt out in my opinion. He wasn't following through on his managerial duties. Pawasarat-Losalio: Were any of the prior infractions under his management? Pintor: All of them were. I don't have the dates. Pawasarat-Losalio: How far back do those infractions go? Schoen: Mr. Chair, the License was issued in 2010. The two prior violations for Rule 5-2 occurred on July 31, 2012 and on August 5, 2012, for no persons in active charge. For those cases, the Board did recommend a $1,000 fine with $500 suspended for 12 months. The Department is recommending a $1,000 fine for this case. Masuda: With no suspension? Schoen: With no suspension. Lindsey: Do we have any discussion on the penalty? There was no discussion from the Board Members. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 6 Lindsey: Do we have a motion on the penalty? Fuke: I move that we accept Counsel's recommendation of the $1,000 with no suspension. Smith: Second. Mr. Fuke moved that the Licensee in Case No. 2017-009, be assessed a penalty in the amount of$1,000.00 and that$1,000.00 is to be paid within thirty (30) days upon receipt of the written Decision and Order; seconded by Mr. Smith. Lindsey: It has been moved and seconded. All those in favor say "Aye." The Board Members voted "Aye." Lindsey: Those opposed, "Nay." There was no opposition by the Board Members. Lindsey: Chair votes "Aye." Motion is carried. The motion was carried unanimously. Lindsey: Thank you. Pintor: Thank you. Masuda: Just to let you know, the written Decision and Order will be prepared and served on you. Pintor: What's that? Masuda: The written Decision and Order, today's Decision, will be prepared and will be sent to you later. Pintor: Okay. Are you going to send the fine? Takase: Yeah. After you get that, you can make the payment. Pintor: The fine will be on there? Takase: I think you have 30 days to pay it or if you need time you can give us a call. Pintor: When can I expect to see that? JULY 20, 2017-LIQUOR ADJUDICATION BOARD MINUTES 7 Takase: Within the next 30 days. Pintor: All right. Thank you. Lindsey: We will move on to Case No. 2017-010, In the Matter of the Accusation Against Kmart Corporation, dba Big Kmart#7683, located at Kailua-Kona, Hawaii. An Informal Hearing (Alternative IV) on violation of Rule 4-6(B) of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii, for failure to notify the Liquor Commission of the Department of Liquor Control in writing of the election within 60 days from the date of election of Robert Riecker, as Vice President, Controller and Chief Acting Officer, received on May 17, 2017, effective June 1, 2015. At this time, I'd like to call Corporation Counsel. 2. CASE NO. 2017-010 In the Matter of the Accusation Against Kmart Corporation, dba Big Kmart #7683, located at Kailua-Kona, Hawaii. Informal Hearing (Alternative IV) on violation of Rule 4-6(B) of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii, for failure to notify the Liquor Commission of the Department of Liquor Control in writing of the election within sixty (60) days from the date of election of Robert Riecker, as Vice President, Controller and Chief Acting Officer, (received on May 17, 2017), effective June 1, 2015. Schoen: Thank you, Mr. Chair. At this time the Department is asking that the Complaint be amended, on page 2, and correct Robert Riecker as Treasurer to Robert Riecker as Vice President, Controller and Chief Acting Officer. Lindsey: At this time, the Chair would like to ask for a motion to amend page 2. Smith: So moved. Fuke: Second. Mr. Smith moved that the Liquor Adjudication Board amend page 2 of the Complaint and Accusation in Case No. 2017-010, to reflect Robert Riecker as Vice President, Controller and Chief Acting Officer; seconded by Mr. Fuke. Lindsey: It has been moved and seconded. Is there any discussion? There was no discussion from the Board Members. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 8 Lindsey: All those in favor say "Aye." The Board Members voted "Aye." Lindsey: Those opposed say "Nay." There was no opposition by the Board Members. Lindsey: Chair votes "Aye." Motion carried. Schoen: Thank you Mr. Chair. The Complaint states that on or about the 1st day of June, 2017, in the County and State of Hawaii, Kmart Corporation, dba Big Kmart #7683, a corporate Licensee, did elect Robert Riecker, as Vice President, Controller and Chief Acting Officer, received on May 17, 2017, effective June 1, 2015, and failed to notify the Liquor Commission of the Department of Liquor Control in writing of the election within 60 days from the date of election, a violation on Rule 4-6(B) of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawai'i. The Licensee has selected Alternative IV, admitting the allegation and stipulates that disciplinary action may be taken without their presence. They have waived their right to a hearing and elected to pay a fine pursuant to Rule 1.12. Lindsey: Thank you Counsel. The Chair would like to entertain a motion to find the Licensee in violation of the charge. Smith: So moved. Fuke: Second. Mr. Smith moved that the Licensee in Case No. 2017-010, be found in violation of Rule 4-6(B) of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii; seconded by Mr. Fuke. Lindsey: It has been moved and seconded. Is there any discussion? There was no discussion from the Board Members. Lindsey: Hearing none. All those in favor of the motion say "Aye." The Board Members voted "Aye." Lindsey: Those opposed say "Nay." There was no opposition by the Board Members. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 9 Lindsey: Chair votes "Aye." Motion carried. The motion was carried unanimously. Lindsey: Chair would like to request a motion to impose a penalty in the amount of $100. Fuke: So moved. Smith: Second. Mr. Fuke moved that the Licensee in Case No. 2017-010, be assessed a penalty in the amount of$100.00 and that $100.00 be paid within thirty (30) days upon receipt of the written Decision and Order; seconded by Mr. Smith. Lindsey: It has been moved and seconded. Is there any discussion? There was no discussion from the Board Members. Lindsey: Hearing none. All those in favor of the motion say "Aye." The Board Members voted "Aye." Lindsey: Those opposed say "Nay." There was no opposition by the Board Members. Lindsey: Chair votes "Aye." Motion carried The motion was carried unanimously. Smith: Craig, I have a question. Did they pay the fine on July 12, 2017, before we decided on the fine? Takase: Yeah, in the rules, it's an automatic fine. The first offense is $100 and the second offense is $200. They knew what their fine amount was going to be. Masuda: If you folks didn't agree with the fine, then we'd have to reset everything and have a hearing. It's either you accept it as it's stipulated to or don't and have a hearing. Takase: By the rules, you already agreed to it that these are minor offenses and that first violation is $100 and the second is $200. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 10 Smith: I have another question. On the second half of page 2 it says, "Unless you have exercised Alternative I, you are hereby directed and commanded to appear today." I'm confused by that because they selected Alterative IV. Masuda: This is the chart that initially goes out to them. They come back with a response and say we want Alternative IV. Takase: That's the old charging form. When the Complaint goes out, there are four Alternatives. If you choose Alternative IV, we fill in the amount for them. Smith: Okay, thank you. Lindsey: Any further discussion? If none, we will move on to Unfinished Business. IV. Unfinished Business Lindsey: There is none. We will move onto New Business. V. New Business Lindsey: There is none. Moving on to Announcements. VI. Announcements Lindsey: Gerald, do you want to make the announcements on the next meetings? Takase: The August meeting has been cancelled. We don't have anything pending right now. That's it. Meetings of Liquor Adjudication Board August 17, 2017, 10:00 A.M., location TBA. September 21, 2017, 10:00 A.M., location TBA. Lindsey: Does the Board have any questions for Counsel? Is there any further discussion for today? VII. Adjournment Lindsey: If none, Chair calls for the meeting to be adjourned. Smith: So moved. Fuke: Second. JULY 20, 2017—LIQUOR ADJUDICATION BOARD MINUTES 11 Lindsey: It has been moved and seconded. All those in favor say "Aye." The Board Members voted "Aye." Lindsey: Those opposed say "Nay." There was no opposition by the Board Members. Lindsey: Chair votes "Aye." Motion carried. Meeting adjourned at 10:22 A.M. - :Id Takase I -ctor The July 20, 2017, meeting minutes were approved as circulated via e-mail/mail on September 12, 2017, by the Liquor Adjudication Board of the County of Hawaii, on September 21, 2017. JULY 20, 2017-LIQUOR ADJUDICATION BOARD MINUTES 12