Loading...
HomeMy WebLinkAboutMinutes 09/11/2000 PUBLIC HEARING SEPTEMBER 11, 2000 Present: Tom Stone Johnnette Phillips Michael Gallagher Robert Loeffler Jack Ingstad Sara J. Fisher Chairman Commissioner Commissioner Deputy County Attorney County Administrator Clerk to the Board This being a scheduled Public Hearing the following items were presented to the Board of County Commissioners for their consideration: Executive Session Chairman Stone stated the first item is to adjourn into an "Executive Session" Commissioner Phillips moved to adjourn into "Executive Session" to discuss negotiations regarding the Airport Terminal and a School District Intergovernmental Agreement. Commissioner Gallagher seconded the motion. The vote was declared unanimous. The time was noted at 8:40 a.m. Commissioner Gallagher moved to adjourn from the "Executive Session" and reconvene into the regular meeting. Commissioner Phillips seconded the motion. The vote was declared unanimous. The time was noted at 9: 10 a.m. Consent Agenda Chairman Pro-tern Phillips stated the first item before the Board is the consent agenda as follows: A) Approval of bill paying for week of September 11,2000, subject to review by County Administrator B) Approval of the minutes of the Board of County Commissioners meeting for August 28,2000 C) Contract between the County of Eagle and Department of Public Health and Environment for prenatal services D) Agreement between County of Eagle and the County of Summit for the Retired and Senior Volunteer Program E) Amendment No. One to Agreement regarding provisions of professional services for Fairgrounds Site Master Development Plan F) Letter of Agreement for the Grant for Communications Center Dispatchers for FY2000 by the Eagle county Emergency Telephone Services Authority to the Town of Vail for fiscal calendar year 2001 G) Change Order Number 2 to the 2000 Guardrail Contract H) Residence Lease I) Approval of Resolution 2000-129 to accept additional Carhof Funds and Signature of Acceptance Form. Kathleen Forinash, Director of Health & Human Services, stated she would like to pull item D, the Retired and Senior Volunteer Program. She stated they do not have the agreement back from 1 09-11-2000 Summit County. Chairman Pro-tern Phillips stated on item B, "Karen Stackbein" should be spelled "Strakbein". Commissioner Gallagher moved to approve the consent calendar as presented with the changes to the minutes as read and deleting item D. Chairman Pro-tem Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. Chairman Stone had left the meeting. Plat & Resolution Signing Matt Gennett, Planner, presented the following plats and resolutions for the Board's consideration: Cordillera Subdivision. Filing No.8. Lot 13. Tract F. He stated this was an Amended Final Plat, the purpose of which is to shift the previously platted building envelope approximately thirty (30) feet to the east. The building envelope adjustment will result in a more favorable home site with a reduced amount of necessary fill materials and lower retaining walls. Staff findings are as follows: Pursuant to Section 5-290 (G) (1) of the Eagle County Land Use Regulations: 5-290 (G) (1) Standards for Type A and Type B Subdivision (G) Standards. The Board of County Commissioners and the Community Development Director shall consider the following in the review of a Type A Subdivision, a Type B Subdivision, and an Amended Final Plat. Standards for Type A and Type B Subdivision. a) Access, potable water, and sewage disposal on the land to be subdivided are adequate; b. The plat does conform to Final Plat requirements and other applicable regulations, policies, standards, and guidelines; and c. No Improvement Agreement is applicable. Commissioner Gallagher moved to approve the final plat for Cordillera subdivision, Filing No.8, Lot 13, Tract F, incorporating staff findings. Chairman Pro-tem Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. 1041 Completeness Hearing, Colorado River Ranch PUD Ross Easterling, Planner, presented the 1041 completeness hearing for Colorado River Ranch PUD. He stated is a 1041 Permit application for the site selection and construction of a major new domestic water and sewage treatment system and efficient utilization of a municipal water project. The action that will be requested from the Board on September 11,2000, is to determine completeness of a 1041 Permit application and to estimate associated processing fees. Falcon Realty, LLC and River Ranch Development, LLC has submitted a 1041 Permit application for Site selection and construction of major new domestic water and sewage treatment systems as well as efficient utilization of the municipal water system to serve the Colorado River Ranch planned Unit Development. Staff has reviewed the above referenced application and has found it to be complete. We have tentatively scheduled the hearings for the Planning Commission and Permit Authority on November 1, 2000 and November 13,2000, respectively. Estimated fees for the above referenced 1041 Permit application are as follows: Community Development Staff 10 Hrs @ $42.50 = $ 425.00 Engineering Staff 2 09-11-2000 8 Hrs @ $42.50 = $ 340.00 Attorney Staff 8 Hrs @ $75.00 = $ 600.00 TOTAL = $1,365.00 Commissioner Gallagher moved the Board accept the application submitted by Falcon Realty, LLC and River Ranch Development, LLC for site selection and construction of major new domestic water and sewage treatment systems and the efficient utilization of the municipal water projects as complete. The estimated fee to process this application is $1,350.00 and may be altered to cover the actual cost of review and public hearings. Chairman Pro-tern Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. Commissioner Gallagher moved the Board approve the applicant's request for waiver ofthe special use permit requirement as allowed in section 3-310-1 of the Eagle County Land Use Regulations. Chairman Pro-tern Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. Resolution 2000-130, Adopting Supplementary Budget Terry Lowell, Finance Director, presented Resolution 2000-130, adopting a supplementary budget and appropriation of unanticipated revenues for fiscal year 2000, and authorizing the transfer of budgeted and appropriated moneys between various spending agencies. He stated all legal requirements have been met and this resolution has been reviewed by the Board. Chairman Pro-tern Phillips asked about the equipment being requested and if the Board is agreeing to said equipment. Jack Ingstad, County Administrator, stated some ofthe items were curtailed most ofthose in 2000 in the later part of 1999. He stated there were a couple of requests that were justified and they felt were affordable. Mr. Lowell stated the reason for the supplemental is it had already been identified in the 2000 budget, however when the bids came in the costs were higher than originally anticipated. If they spent what was in the budget they would end up with a machine of lessor quality than what was currently used. Commissioner Phillips asked ifthis machine was to replace the current map copier. Earlene Roach, Clerk & Recorders Office, stated the current map machine is being fixed at least three times a week. Mr. Ingstad stated there will be adjustments made to the Information Technology Budget as several items budgeted for 2000 were not purchased. Commissioner Gallagher moved to approve Resolution 2000-130, adopting a supplementary budget and appropriation of unanticipated revenues for fiscal year 2000, and authorizing the transfer of budgeted and appropriated moneys between various spending agencies. Chairman Pro-tern Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. Selection of Contractor, Golden Eagle Housing Subdivision Kathleen Forinash, Director of Health & Human Services, stated the next item on the agenda was the selection of a contractor and provider of assisted living services for Lot lA of Golden Eagle Housing Subdivision, Town of Eagle. She stated the purpose today is to select one ofthe candidates and to start negotiations. Ms. Forinash stated Heritage Health Care Management and Pinion Management have both given presentations to the Board. 3 09-11-2000 Chairman Pro-tem Phillips asked if there had been communications with Lucy, Manager of the Facility, concerning moving of the gardens, the berm and the time frame. Ms. Forinash stated she has met with Lucy and discussed the community gardens and related another area has been set aside for those gardens. Chairman Pro-tern Phillips stated it is important for the seniors to have their gardens. Commissioner Gallagher pointed out Heritage Health Care Management is a for profit company and Pinion Management is a non-profit organization. He stated Heritage Health Care has less than 25% of their units available for Medicaid, whereas Pinion Management has 30% available. He stated affordability to our senior citizens is better under Pinion Management as it 400 dollars less for the Medicaid. He stated he also likes the non-profit being run by a local board. Chairman Pro-tem Phillips stated there is also a difference in construction and financing costs. She stated the costs under Heritage is $1.5 million and under Pinion could be up to $2.2 million. She stated a HUD project, and Pinion Management intends to use HUD funds, if those funds go away the project is without funding. Commissioner Gallagher stated they were speaking about HUD money for construction not operations. Mr. Ingstad stated what they are asking for is to allow staff to start negotiations with the top contender. He stated if those negotiations fail the Board could instruct staff to start negotiations with the second bidder. Bob Loeffler, Deputy County Attorney, stated if the negotiations were successful, that bidder would be selected. Mr. Ingstad stated the agreement would have to be brought back before the Board and they would have to agree to the terms. Ms. Forinash stated certain issues identified would be addressed during the negotiations. Commissioner Gallagher moved to allow staff to move forward with negotiations with Pinion Management for development of the assisted living facility for the Golden Eagle Housing Subdivision. Chairman Pro-tern Phillips stated she could not second the motion. Chairman Pro-tern Phillips moved to allow staff to move forward with negotiations with Heritage Healthcare Management. Commissioner Gallagher seconded the motion. The vote was declared unanimous. Resolution 2000- ???, Mountain Glen Housing Corp Multifamily Revenue Bonds Bob Loeffler stated the bonds will be priced this week and HUD's commitment has been typed and is awaiting signature. This matter will be put on the agenda for next week. The Board concurred to not open this agenda matter. Resolution 2000-132, Modifications to Roaring Fork Transportation Authority Agreement Renee Black, Asst. County Attorney, stated the next item on the agenda was modifications to the Roaring Fork Transportation Authority Intergovernmental Agreement. She stated the only reason for the modifications is one of the partners made a few changes in the wording. The changes make no difference to the IGA. George Roussos, Asst. County Administrator, stated the Authority would like any reference to Garfield County taken out of the agreement. He stated Garfield County has elected not to participate in this Agreement. Commissioner Gallagher moved to approve the inclusions of the modifications to the Roaring Fork Transportation Authority Agreement, including deleting the reference to Garfield County. Chairman Pro-tem Phillips seconded the motion. Of the two voting Commissioners the vote was 4 09-11-2000 declared unanimous. Commissioner Gallagher moved to adjourn as the Board of County Commissioners and reconvene as the Local Liquor Licensing Authority. Chairman Pro-tem Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. Riverwalk Wines & Spirits Earlene Roach, Liquor Inspector, stated this is a show cause hearing for Edwards Liquor Mart, Inc., dba/Riverwalk Wines & Spirits. She turned the hearing over to Steve Carter from Carter & Sands P.C. Mr. Carter stated he is ready to present evidence today as to the sale of alcohol to a visibly intoxicated individual. He called on Katie Brandrup, Eagle County Sheriffs Office to testify. Johnnette Phillips swore in Ms. Brandrup to testify. Mr. Carter asked if Ms. Brandrup had a receipt for the purchase of the alcohol. Ms. Brandrup stated she received a call from dispatch concerning an intoxicated individual walking along Highway 6 near the intersection of Highway 6. Mr. Carter asked what time Ms. Brandrup received the call. Ms. Brandrup answered at 21 :21 p.m. which is 9:21 p.m. Mr. Carter asked about the Eagle County Sheriffs Office dispatch and the estimated time between the time dispatch received the call and when they called Officer Brandrup. Ms. Brandrup responded between one and two minutes. Mr. Carter asked what Ms. Brandrup found when arriving at the scene. Ms. Brandrup stated she was traveling west on Highway 6 and approached the individual who was heading for the bus stop near the Gashouse Restaurant. She stated the individual was staggering along the Highway with a twelve pack of beer and a bag of dog food. She stated the individual was moving very slowly. Ms. Brandrup stated the crotch of his pants were wet and it appeared he had urinated himself, his eyes were bloodshot and he was swaying back and forth. There was a strong odor of alcohol on this individual and his speech was slurred. She stated while this individual was looking for his ID, Ms. Brandrup noticed the bottle of peppermint schnapps in his jacket pocket. This individual indicated to her he had purchased the alcohol at Riverwalk Wines & Spirits. Ms. Brandrup stated she called for another officer who escorted this individual home and released him to the custody of his sober roommate. Ms. Brandrup then proceeded to Riverwalk Wines and Spirits. She stated she contacted Geoffrey Moser, employee, who admitted he had sold both the beer and the peppermint schnapps to this individual. She stated Mr. Moser related it had been approximately 30 minutes since the individual had purchased the alcohol. Mr. Moser related he did not believe the gentleman was intoxicated. He went to the store quite a bit and keeps his head down. She stated she informed Mr. Moser the front of the individuals pants were wet, he smelled strongly of alcoholic beverages, speech was slurred and his eyes were bloodshot. She questioned why he did not pick up on the signs. Mr. Moser responded he had not noticed. Wendell Porterfield, Attorney representing Riverwalk Wines & Spirits, questioned the carhart jacket the individual was wearing. Ms. Brandrup stated it is a work jacket. She stated his was about waist level but they do come longer. Mr. Porterfield questioned if Ms. Brandrup had performed a test on the pants to determine what was on the wet spot. Ms. Brandrup answered no. Mr. Porterfield asked if it was possible that wetness came from any other substances, i.e. 5 09-11-2000 alcoholic beverages, etc. Ms. Brandrup answered possibly. She stated she did not perform a blood or breath test as the individual refused. He was not taken to detox but was released at his home to a sober roommate. Mr. Porterfield asked if Ms. Brandrup had given Mr. Moser a Miranda warning. Ms. Brandrup answered no. She stated she met up with the intoxicated individual right in front ofthe Gashouse Restaurant. Mr. Porterfield continued to question Ms. Brandrup on her qualifications and testing of the intoxicated individual. He asked if Mr. Moser had related the individual in question did not display any signs of intoxication. Ms. Brandrup answered Mr. Moser stated to her that he did not notice anything. Mr. Porter stated Ms. Brandrup does not have any evidence that this individual displayed any signs of intoxication while in the liquor store. Ms. Brandrup answered no, but the individual had related he had been no where else. Mr. Carter stated the ticket given to the intoxicated individual was for a drunken pedestrian on the highway. Does that individual have to take a blood or breath test or if the Sheriff s Office has the authority to require they take a sobriety test. Ms. Brandrup answered no to both questions. Mr. Porterfield asked when the Officers make the decision to transport individuals to a medical center rather than releasing them to a sober individual. Ms. Brandrup stated if they can find a responsible party to release that person to or if there is a detox center available. She stated they have very limited detox facilities in this area. This individual was released to his roommate. Dr. Larry Brooks, Vail Valley Emergency Room Physician, stated he has been doing emergency medicine since 1973. He stated a big part of emergency medicine is intoxicated individuals. He stated their primary concern is those problems that can cause other problems. He stated without clinical data he cannot legally state someone is intoxicated by alcohol or drugs unless a test has been performed. He stated there are those that can have a blood test and it be proven they are intoxicated may not appear to be in that condition. He stated people who are intoxicated can have seizures. Mr. Carter asked if Dr. Brooks studied the field of intoxication. Dr. Brooks related it comes with the territory. Mr. Carter asked if there are things that Dr. Brooks can conclude without the tests. Dr. Brooks responded they cannot and do not put down the patient is drunk without evidence of proof. Mr. Carter asked Dr. Brooks if staggering down the highway, the slurred speech, bloodshot watering eyes and the odor of alcohol, were signs of intoxication of some kind. Dr. Brooks stated the ground is uneven in that location and he is concerned with the wet pants. He stated ifthe Deputies see someone with wet pants they probably should be taking them to the emergency room. Mr. Porterfield called Steve Rose, General Manager at the Inn at Beaver Creek, and asked about TIPS training. Mr. Rose stated he has been a certified TIPS trainer for the past six years. He stated this training is for those who serve alcohol, how to recognize signs of intoxication and to intervene with the sale to those individuals. He stated he has TIPS trained a number of the employees at Riverwalk Wines & Spirits over the past three years. He stated Ms. Benedickt has been very pro-active in the TIPS training. He stated there are a number of clues to look for that are provided in the TIPS training. Those are, bloodshot watery eyes, slurred speech and inhibitions. Mr. Porterfield asked if the amount of time to size up customers in a liquor store is shorter than in a bar or restaurant. Mr. Rose stated there is a shorter amount of time. You should be watching if they are stumbling 6 09-11-2000 into the store, if they slur their speech. He stated the decision should not be made on only one clue. It should be made on several clues. He stated there are those that are skilled at behaving under the influence of alcohol. Mr. Carter asked about the employees of a liquor store have less opportunity to view the patrons. He asked if the levels of intoxication are the same for all kinds of establishments. Mr. Rose stated the obligation is equally high for any server of alcohol. The TIPS training tries to control intoxication. You do have less time in a package store but anyone serving alcohol needs to be diligent in not serving those who have already had to much. Mr. Porterfield called on Geoffrey Moser, individual who sold the alcohol. Mr. Moser stated on the night in question, Deputy Brandrup came in and asked ifhe had sold a twelve pack and peppermint schnapps to the individual in question. He replied he did. He stated the individual walked into the store, set his groceries down by the door, then walked to the back of the store to the beer coolers, stopped on the way back and picked up the bottle of schnapps and came to the register. He stated he paid with cash. He did not appear to be having problems with walking. He did not fall or stumble. He did not smell of alcohol. Mr. Moser stated he has taken TIPS training and is involved in discussions in the store with other employees. He stated the store keeps a daily written log of everything that happens in the store. He stated he does not have a problem turning down individuals who are either minors or are intoxicated. Mr. Porterfield asked if Mr. Moser had told the Deputy Sheriff that he had not paid attention to this individual. Mr. Moser answered no. Mr. Carter asked if Mr. Moser had told the Deputy it had been about 30 minutes since he had sold alcohol to the individual. Mr. Moser stated it was probably around 9:00 p.m. when the individual came into the store and the Deputy came in at about 9:45 p.m. Mr. Carter asked ifthe reason that purchase was not in the log is because Mr. Moser did not notice anything unusual. Mr. Moser answered that was correct. He stated generally that individual keeps his head down when purchasing alcohol. Mr. Carter asked about surveillance equipment installed. Mr. Moser answered yes and it was operating that evening. Mr. Porterfield called on Terri Benedickt. He asked if the liquor store has any prior liquor offenses. Ms. Benedickt stated they have no prior alcohol offenses. She stated she spent many nights reading the liquor code. She explained the layout of the store. Mr. Porterfield stated he would like to enter the following exhibits into the record: A) Riverwalk Wine & Spirits Job Description B) Employee Policy C) Nightly Log of Customer Problems of Notations. Chairman Pro-tern Phillips accepted those into the record. Ms. Benedickt explained the employee log of problems and for the employees to communicate their experiences which can be reviewed by all other employees. She stated she is very concerned with possible sales to minors or intoxicated individuals. She stated all employees have a one on one discussion with her before they start working behind the register. She stated the employee goes through a TIPS review with the manager. She stated the first Tuesday of every month they have a staff meeting. Mr. Porterfield questioned Mr. Benedickt on the surveillance system. Ms. Benedickt stated they do have a surveillance system in place. She stated she reviewed the tapes on the night in question. She stated they did not find a sale to an intoxicated person, but the tape was recorded over before she thought they could use the tape as evidence. 7 09-11-2000 Ms. Benedickt stated a charge such as this would be devastating to her business. Mr. Carter asked about the log book submitted containing everything important. Ms. Benedickt stated her employees admitted before this infraction the employees only used the book about 50% of the time. After this date the employees say they are using the book more often. Mr. Carter stated although the doctor may have testified otherwise, it is very common knowledge that loss of bladder control is not only the symptom of a seizure but also of intoxicated individuals. He stated the question is what was this person's level of intoxication between 9:00 p.m. and 9:15 p.m. He stated the liquor licensing authority can produce no evidence as they were not there at that time. However, a few minutes later this individual was bad enough that someone called 911 on their cell phone. Moments later when the Deputy showed up this individual displayed all the classic symptoms of a drunk. He said he had purchased the alcohol from this establishment a few moments before that time. If this was a jury trial circumstantial evidence would mean as much as demonstrative evidence. The Doctor testified that some individuals are pretty good at masking it when they are intoxicated. The expert from the TIPS training spoke to the limited amount of time in an establishment such as this and you must scrutinize each purchaser. Ms. Benedickt has made every effort to make sure this kind of thing does not happen. But it did. This individual was intoxicated only a few minutes later. This is the first time the owner's license has been threatened. Mr. Carter related he had asked for the owner to produce the surveillance tape which they say would have proven their innocence. That tape is not here and cannot be produced. He stated he asked the Board suspend the liquor license for a period of four days, holding two of those days in abeyance for a period of one year, which has been the standard policy. Mr. Porterfield stated the Statute is very clear. It is illegal to sell to a visibly intoxicated person but it is not illegal to sell to an intoxicated person. In order to be liable in this case the person has to be visibly intoxicated. Out of fairness, how can it be said this person display signs of intoxication at the point of sale. No one knows where this person was before the sale. The applicant is not in charge of giving breath tests to everyone that comes into the store. He stated it would be unfair to convict the owner of service to an intoxicated individual when there is no evidence of such. We do not know if this person was legally drunk. He recommended the order to show cause be discharged. Commissioner Gallagher asked about the age of Mr. Richko. Deputy Brandrup stated her estimation is he was in his 30's possibly early 40's. Commissioner Gallagher asked about tolerance and the more they drink the more they get used to it. Mr. Rose answered there are no specific techniques but it is discussed how often people are buying. He stated you kind of have to know your customer. Chairman Pro-tern Phillips asked if Mr. Moser had appeared in Court. Mr. Moser stated it is still on-going. Chairman Phillips asked if he had admitted that he sold to this individual. Mr. Moser answered yes but that he believes he was not intoxicated at that time. Commissioner Gallagher asked when did the tape get written over. Ms. Benedickt stated in about a week. Chairman Pro-tern Phillips stated the Board's decision will be made on testimony heard at this hearing. She stated they are looking at it as if a violation has occurred and does it require a suspension or a fine. Renee Black stated first and foremost the Board must determine if there was a violation. Commissioner Gallagher asked about the report time of 21 :21 p.m. He asked if that is the correct time. Deputy Brandrup stated she always asks dispatch to verify the time the call came in. Mr. Porterfield stated he does not believe the Sheriffs Report has been admitted into the record. Chairman Pro-tern Phillips stated the Board has a packet of information submitted by staff that is public record and is for the Board's use. 8 09-11-2000 Ms. Black recommended the Board accept the packet into the record. Mr. Porterfield stated it is unfair to let the hearsay statements into the record. Commissioner Gallagher asked if the burden is preponderance. Ms. Black stated that was correct. She stated the charge in the show cause was for sale to a minor or an intoxicated individual. Commissioner Gallagher stated in counsel's closing argument the prosecutor stated he believes that Mr. Richko was masking and was not showing intoxication. But if the clerk would have asked him to raise his head so he could look at him it may have been found that he was intoxicated. He stated he does not know where the burden lies for the liquor license holder in determining intoxication. He stated he is inclined to believe the individual in question was masking while in the store. Chairman Pro-tern Phillips questioned if he was saying there is a reasonable doubt and no violation had been committed. Commissioner Gallagher stated that was correct. Commissioner Gallagher moved the Board find there was not a violation of the Colorado Liquor Code by the liquor license holder, on April 28, 2000 at Edwards Liquor Mart, Inc., dbaJRiverwalk Wines and Spirits. Chairman Pro-tern Phillips seconded the motion. The vote was declared unanimous. Commissioner Gallagher thanked the applicant and asked they look into what would facilitate looking closer at those individuals purchasing alcohol to determine if they are intoxicated. Commissioner Gallagher moved to adjourn as the Local Liquor Licensing Authority and reconvene as the Board of County Commissioners. Chairman Pro-tern Phillips seconded the motion. Of the two voting Commissioners the vote was declared unanimous. There being no further business to be brought before the Board the meeting was adjourned until September 18, 2000. Attest: Clerk to the Board ~ Chairman 9 09-11-2000