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HomeMy WebLinkAboutMinutes 02/27/2001 PUBLIC HEARING FEBRUARY 27,2001 Present: Tom Stone Michael Gallagher Am Menconi Robert Loeffler Jack Ingstad Sara 1. 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: Consent Agenda Chairman Stone stated the first item was the Consent Agenda as follows: A) Approval of bill paying for the weeks of February 26, 2001 and March 5, 2001, subject to review by County Administrator B) Approval of payroll for March 8, 2001, subject to review by County Administrator C) Approval of the minutes of the Board of County Commissioners meeting for February 13,2001 D) Contract between County of Eagle and the Xerox Corporation, Avon E) Contract between Eagle County and the Xerox Corporation, Basalt F) Agreement between Eagle County Health and Human Services and Joel Karr for T ANF ICHILD Welfare Services G) Contract between Eagle County and Vail Valley Medical Center for prenatal services H) 2001 Dump Truck with Plow and Sander I) 2001 30 ton Articulated Dump Truck J) 4 Centrifugal Trash Pump on Trailer K) 2001 Crawler Dozer L) Intergovernmental Agreement for Option Assignment Indianapolis Public Transportation Corporation, to obtain right to purchase two Gillig Corporation Buses M) Contract Amendment between the United States and Eagle County for water service from Green Mountain Reservoir N) Resolution 2001-031, conferring Power of Attorney upon the Attorney's Office to draw on Letter of Credit No. 9780017 in the amount of$8,839.72 for the account of Colorado Alpines, Inc., Edwards Nursery, drawn on 1st Bank of Avon, Letter of Credit will expire February 28, 2001 0) Resolution 2001-032, conferring Power of Attorney upon the Attorney's Office to draw on Letter of Credit No. 002 in the amount of $2,000.00 for the account of First Land Development LLC, drawn on Alpine Bank, Vail, Letter of Credit will expire March 9, 2001 P) Resolution 2001-033 Appointing Michael Roeper to the Board of Directors of Mountain Glen Housing Corporation Q) Resolution 2001-034 Appointing Michael Roeper to the Board of Directors of Eagle Riverview Affordable Housing Corporation R) Resolution 2001-035 Appointment of Robert Loeffler as Acting County Attorney S) Maintenance Agreement between Xerox and the County for copier in Information Technology T) Colorado Discretionary Aviation Grant Program 1 02-27-2001 U) Grant Agreement for AlP 3-08-0020-28 V) Contract with Colorado Department of Transportation for the SH 82 Access Control Plan. Chairman Stone asked the County Attorney if any items m~d to be removed from the Consent Agenda. Bob Loeffler, Acting County Attorney, answered no. Commissioner Gallagher asked about Item H and the dump [lUck. He asked if they were trading in two for one and reducing the fleet. Brad Higgins explained that was a misprint. It should be two new dump trucks and they are only trading one. Commissioner Gallagher asked about the dozer. Mr. Higgins explained CAT is the low bidder. Commissioner Gallagher asked about maintaining all similar typ.\; in the fleet. Mr. Higgins stated they try to but there will be further discussion about that. Commissioner Gallagher asked about the Copier Contracts. Lanie Martin stated she was here representing Information Technolggy. She stated her item is the maintenance agreement which lowers the cost. Commissioner Gallagher asked if all copiers fall under the umbrella oYlnformation Technologies or does everyone do their own thing. Jack Ingstad, County Administrator, explained that finance standardize~ the product and gets the lowest bid. Commissioner Menconi asked on the trade in vehicles they have the inv~ ~ce numbers. He asked if they can have years and milage information in their back up. Mr. Higgins stated yes they can. Mr. Ingstad stated they have a five year or 80,000 miles standard for trade ms. Commissioner Menconi asked if it is the same standard used for all vehicles. Mr. Higgins stated they tend to keep the equipment longer, but they have a st4'1dard five year buy back agreement. He stated he will explain that further. Commissioner Gallagher asked that item C, approval of the minutes, be voted 01' separately. Chairman Stone asked about the Airport and the statement that the work was un'\ ~rtaken using County Funds. Jim Elwood, Airport Manager, stated those are in fact Airport funds and not from ',e general fund. Commissioner Menconi spoke to items P and Q and that Michael Roeper is being app,ointed to the Boards of the Mountain Glen Housing Corporation and Eagle Riverview Affordable housiflg. Commissioner Gallagher moved to approve the Consent Agenda except for Item C, the,meeting minutes. Commissioner Menconi seconded the motion. The vote was declared unanimous. Commissioner Gallagher moved to table the minutes from the February 13 meeting to allow for the final time of adjournment to be noted. Commissioner Menconi seconded the motion. The vote was declared unanimous. Plat & Resolution Signing Bob Narracci, Planner, stated there are no plats or resolutions to be signed today. Retainer Agreement, Board of Social Services Rita Woods, Health & Human Services, presented a Retainer Agreement between Eagle County 2 02-27-2001 Board of Social Services and the Board of County Commissioners for representation of the Eagle County Department of Health and Human Services by the office of the Eagle County Attorney. Bob Loeffler stated he understood Mr. Roeper was going to do a survey of the amounts being paid in other Counties. Mr. Ingstad suggested they table this item. Commissioner Gallagher stated in his copy the retainer is assigned. Mr. Loeffler stated he doesn't know the explanation for that. Mr. Ingstad stated one ofthe members must have taken action for it to come to the Board. Commissioner Menconi moved to table the Retainer Agreement between Eagle County Board of Social Services and the Board of County commissioners for representation of the Eagle County Department of Health and Human Services by the office of the Eagle County Attorney. Commissioner Gallagher seconded the motion. The vote was declared unanimous. 2001 Four Wheel Drive Motor Grader Brad Higgins stated the next item on the agenda was the purchase of a 2001 Four Wheel Drive Motor Grader. Mr. Higgins stated the low bidder on this is not the company they normally run. The low bidder is Champion which is being bought by Volvo. He explained they bid it as guarantee by life cycle costing. He explained the differences in the trade in amounts. He suggested they would exercise the buy back if they are going to go with the Champion. Commissioner Gallagher asked about the training. Mr. Higgins stated it is virtually the same. He spoke to the attachments and that they are not compatible. Commissioner Gallagher asked for Mr. Higgins recommendation. Mr. Higgins stated he would go with Caterpillar though he is not opposed to trying the new equipment. He is concerned that they do the buy back while there is still value to the equipment. Chairman Stone suggested he is slow to make that decision. He spoke to not choosing the low bidder at the Landfill on the equipment for the scale and they ended up having to revisit that and change their minds. He explained what took place. Mr. Ingstad stated Mr. Higgins has shown some significant evidence to justify the decision. Chairman Stone stated he appreciates that but does not want this decision to be taken lightly. Commissioner Menconi asked about the differences. Mr. Higgins stated John Deere is the highest bidder. The two lower bids were what was presented. He explained the life cycle costs. Commissioner Menconi asked if they could have a work session to address all of the issues in equipment purchasing to better understand the life cycle program. He spoke to the difference in costs. Mr. Higgins stated it is about $26,000. Chairman Stone asked to see the break down of the life cycle comparison and that showed that it is actually at difference of $26,000 ifthey do the buy back at the end of five years. He asked Mr. Higgins to itemize the reasons. Mr. Higgins stated standardization ofthe fleet. They have seven of the Caterpillars. He spoke to the attachments and that they will not fit this type of equipment, the worth of the machine after a seven or eight year usage and they don't know what the cost will be then. Chairman Stone asked ifhe feels the value ofthe machine would be off set and made up. So what seems to be a $26,000 difference actually is in favor of Caterpillar in seven or eight years. Commissioner Menconi moved to approve the purchase of a 2001 Four Wheel Drive Motor Grader authorizing the Chairman to sign the contract. Commissioner Gallagher seconded the motion. Chairman Stone explained they were not selecting the lower bidder for the reasons stated above. 3 02-27-2001 He called for the question on the motion. The vote was declared unanimous. 2001 Compactor with Spreader Blade Brad Higgins stated the next item was the purchase ofa 2001 Compactor with Spreader Blade for soil operations. He stated there is a $2,870 difference however the low bidder did not bid to the specifications. He stated for what he wants to use it for, the equipment they are proposing is not the better choice. Commissioner Gallagher moved to approve the purchase of a 2001 Compactor with Spreader Blade for soil operations from the bidder that met the specification being Wagner. Commissioner Menconi seconded the motion. The vote was declared unanimous. ZS-00070, LaFarge Gravel Pit lena Skinner, Planner, presented file number ZS-00070, LaFarge Gravel Pit. Mr. Ingstad stated this had been tabled to this date and as of today they do not have the signed agreement. Mr. Loeffler stated they actually have both agreed on the document, but they don't have confirmation. He stated it is now a matter of getting it signed. They would have it in three weeks. Mr. lngstad suggested they table it to March 20th to get the lease on before the land use issue. Then the negotiations can take place. Commissioner Menconi moved to table file number ZS-00070, LaFarge Gravel Pit to March 20, 2001 giving them time to review the lease. Commissioner Gallagher seconded the motion. The vote was declared unanimous. SUF-00003, Abram's Subdivision Cliff Simonton, Planner, presented file number SUF-00003, Abrams Subdivision. The applicant seeks to subdivide a 14.848 acre site into a 9.739 acre lot and a 5.109 acre lot for single-family residential development and accessory agricultural uses. The 9.739 acre lot is to encompass an existing single-family residence and a variety of agricultural outbuildings. The 5.109 acre lot is proposed for a new single-family residence. Both lots are/will be served by public water from the Town of Eagle and individual sewage disposal systems. Access will be via a private, shared driveway easement off of Brush Creek Road. The chronology of the file is as follows and as shown on staff report: At its regularly hearing of April 17th, 2000, the Board of County Commissioners approved a Planned Unit Development Sketch Plan for the Abrams PUD (PDS-00020). A condition of approval was that the applicant justify the use of PUD zoning for this development. It was subsequently determined that the PUD was not appropriate for a two lot subdivision, and that the goal could better be accommodated via a Zone Change process to conventional Agricultural Limited zoning. At it regular hearing of November 20th, 2000, the Board of County Commissioners approved the Abrams Subdivision Preliminary Plan (SUP-00003) and Zone Change (ZC-00041). Referral responses are as follows and as shown on staff report: Eagle County Engineering. All Engineering and Surveyor's comments have been satisfied. There are no public improvements proposed by this application. Staff findings are as shown on staff report and as follows: Pursuant to Section 5-280.B.5.b.(3) Final Plat for Subdivision - Action by the Board of County Commissioners: 4 02-27-2001 1) This Final Plat for Subdivision conforms to the approval given to the Preliminary Plan for Subdivision. 2) The required improvements are adequate. 3) Areas dedicated for public use and easement are acceptable. Pursuant to Section 5-280.B.3.e Standards of the Eagle County Land Use Regulations: 1) Consistent with Master Plan. The proposed subdivision IS consistent with the Eagle County Master Plan and the FLUM ofthe Master Plan; 2) Consistent with Land Use Regulations. The proposed subdivision DOES comply with all of the standards of this Section and all other provisions of these Land Use Regulations, including, but not limited to, the applicable standards of Article 3, Zone Districts, and Article 4, Site Development Standards. 3) Spatial Pattern Shall Be Efficient. The proposed subdivision IS located and designed to avoid creating spatial patterns that cause inefficiencies in the delivery of public services, or require duplication or premature extension of public facilities, or result in a "leapfrog" pattern of development. (a) Utility and Road Extensions. Proposed utility extensions ARE consistent with the utility's service plan or shall require prior County approval of an amendment to the service plan. Proposed road extensions ARE consistent with the Eagle County Road Capital Improvements Plan. (b) Serve Ultimate Population. Utility lines SHALL BE sized to serve the planned ultimate population ofthe service area to avoid future land disruption to upgrade under-sized lines. (c) Coordinate Utility Extensions. Generally, utility extensions shall only be allowed when the entire range of necessary facilities can be provided, rather than incrementally extending a single service into an otherwise un-served area. 4) Suitability for Development. The property proposed to be subdivided IS suitable for development, considering its topography, environmental resources and natural or man-made hazards that may affect the potential development of the property, and existing and probable future public improvements to the area. 5) Compatible With Surrounding Uses. The proposed subdivision IS compatible with the character of existing land uses in the area and DOES NOT adversely affect the future development of the surrounding area. Mr. Simonton stated the Attorney's Office has not had an opportunity to review the plat as it was just submitted yesterday. He suggested it be approved with that condition. He stated there were problems getting the proper signatures on the plat. Tom Boni, Knight Planning, stated he called the applicant this morning who thanked staff for the work they have done. They would very much appreciate it being approved conditionally on the final plat being review by the Attorney's office. Commissioner Gallagher moved to approve SUF-00003, Abrams Subdivision, asking the Clerk to incorporate the findings and pending review by the Attorney's Office. The Chairman shall be authorized to sign the plat. Commissioner Menconi seconded the motion. The vote was declared unanimous. SUS-00009, Eby Creek Ranch Cliff Simonton presented file number SUS-00009, Eby Creek Ranch. He stated the Planning Commission discussed the following items: Options and/or alternatives that might facilitate the protection of geologically and/or environmentally sensitive lands. Logic of annexation ofthis parcel to the Town of Eagle. Repeated attempts of Applicant to gain approval with the Town. 5 02-27-2001 Frustration with the Town's reluctance to annex property. Feasibility of hook up to public sewer. Town's "conditional" willingness to provide domestic water. Density of wells and individual septic systems in a small area. Ability of aquifer to support 5 wells. Water augmentation plan, and source of augmentation water. Possibility of locating a fire hydrant on access road. Emergency vehicle turn-around's at the end of each drive. Use of building envelops to establish building sites on each lot. JJP Companies is proposing a subdivision that would create five (5) lots on a 56.94 acre parcel along side and to the east oflower Eby Creek just north of the Town of Eagle. Access to the proposed lots would be via Eby Creek Road at a point approximately .36 miles above the ambulance station. A dedicated rural residential lane, 175 feet in length, would cross Eby Creek at that point to access two driveways, one heading north to serve three lots and one heading south to serve the remaining two. The parcel is dominated by a steeply dissected ridge that rises approximately 300 feet above and parallel to the valley floor. This ridge exhibits a number of short, steep, and somewhat heavily treed but otherwise sparsely vegetated gullies interspersed by very steep barren slopes. The ridge transitions on its west flank in a series of alluvial fans and sloping benches which border Eby Creek. The stream itself zigzags through a somewhat narrow and steep sided channel that has been cut between this transition bench and the Eby Creek Road platform to the west. The Applicant proposes to develop sites for residential homes on the land between the steep hillside to the east and the creek to the west. Water for the homes is to be provided by individual wells; sewage disposal would be by ISDS. The chronology of this application is as shown on staff report and as follows: This parcel was first platted in November of 1981 as Lot 220 of the Eby Creek Mesa Subdivision, and is zoned Agricultural Residential. In the time since its creation, various proposals have been submitted to both the County and the Town of Eagle for its development. In early 1997, then owner David Faulkenberg presented to the Town of Eagle a plan for the annexation of Creekside Estates PUD, a development that included five single family lots with adjacent open space, pedestrian paths and a public park. This plan was withdrawn by the applicant prior to final plat approval. In July of 1999, an idea was presented to the County Staff by the current owner, Mr. John Poukish, that involved a subdivision of the parcel into 20 (more or less) lots. Staff was not comfortable with the concept, and Mr. Poukish was encouraged to return to the Town with a scaled back plan. A proposal for the annexation of eleven single family lots with an equestrian center and an additional parcel for employee housing was then developed and submitted to the Town in the fall of 1999. This plan went through a variety of modifications, eventually becoming File S-24, Eby Creek Ranch, a proposal for 6 single family lots with a seventh to be dedicated to the ambulance district for employee housing. The Town Staff and the Town's Planning and Zoning Commission approved the plan, with conditions, and supported the owners intent through the sketch and preliminary planning stages. At its meeting of July 25, 2000, however, the Town Board rejected the final plat for the plan, stating that the development was of "questionable value to the Town" and, essentially, that the advantages of approval did not significantly outweigh the disadvantages. In the summer of 2000, the owner installed culverts in Eby Creek (Army Corp of Engineers permit # 199775351) and completed initial grading (Eagle County permit # MI-11373) for the road segment proposed for access to the drive ways. With the exception of some old road tracks, a few abandoned fences and several recent soil study test holes, the site is undisturbed. Any development on this parcel will be subject to the protective covenants of the Eby Creek Homeowner's Association. Referral responses are as shown on staff report and as follows: 6 02-27-2001 7 02-27-2001 Uniform fire code requires space for fire truck/fire apparatus turn around on dead end access roads in excess of 150 feet in length. Fire access roads and related bridges shall be designed to support loads of fire apparatus and shall be provided a surface to accommodate all-weather driving. Access roads shall be a minimum of 20 feet wide and shall provide a vertical clearance of 13 feet 6 inches. Fire hydrants are required along access roads, and should be spaced a maximum of 400 feet apart. Colorado Division of Water Resources Materials submitted with the application did not adequately address the issues of water quality, quantity and dependability. Lacking a water court avvroved augmentation vlan, the proposal will cause material in;urv to decreed water rights. Colorado Division of Wildlife The site contains critical deer habitat for migration and winter range. There is also concern for impacts to adjacent riparian areas, water quality in Eby Creek and mountain lion movement. Numerous mitigation measures are available (please see attached letter), including, but not limited to: Restricting the number of dogs per household and the way they are boarded; Restricting the types and amounts of fencing used; Prohibiting the boarding of any livestock. Restricting the size of building envelopes, and requiring construction disturbance areas to be delineated with siltation fencing. Require funds to be deposited in a wildlife mitigation trust, or instigate an internal real estate transfer fee to support wildlife mitigation efforts. Use established BMP for protection against unwanted bear activities. No development should be allowed in riparian areas. A 75 foot minimum setback is recommended from the stream. Drainage and runoff water should be contained and filtered prior to its leaving a home site. A raptor survey should be conducted CDOW should be indemnified against any claims from wildlife damage Open space areas should be managed to prevent harassment of wildlife. Temporary fencing and other passive means may be used to restrict wildlife on landscaped areas. The steep hillside area immediately east of the site should be restricted from use from December 15th through March 31 st of each year. A brochure or pamphlet should be developed to educate new residents about local wildlife concerns. Eagle County School District Cash in Lieu of School Land is estimated to be $1,006.36, payable at Final Plan approval. T own of Eagle (letter to the Applicant, copy to Staff 01/1 % 1) Town is ready to serve the property, if applicant will commit to a water service agreement, which would include an annexation or pre-annexation agreement. Water rights dedication or cash-in-lieu fee would be required. Ownership of2.0 cfs from the Neilson Ditch has not been verified. Eby Creek Mesa Homeowner's Association The Board is in general support of the proposal. Proposed development is a part of the Eby Creek Mesa Subdivision, and will be subject to payment of homeowner's dues and to the design review process. Additional Referral Agencies, not responding: 8 02-27-2001 Eagle County Assessor, Sheriff, Animal Control and Environmental Health; Colorado Water Conservation Board; BLM; US Army Corps of Engineers; Natural Resources Conservation Board; US West/PTI; Public Service; Holy Cross Electric. Staff findings are as follows and as shown on staff report: Pursuant to Eagle County Land Use Regulations Section 5-280.B.1, Overview of Procedures. Subdivision Sketch Plan Review; the review of a Sketch Plan for Subdivision provides an opportunity for the applicant, the County and the public to evaluate and discuss the basic concepts for the proposed development, and to determine if there are any alternative approaches the applicant should explore. A determination is made at this time as to whether or not the proposal is consistent with Master Plan documents, and whether the improvements proposed by the plan are generally compatible with surrounding uses. Consensus should be reached regarding the number of units proposed, the general location of development, the general alignment(s) for access, and whether water supply and sewage disposal should be provided on site or through connection to a public system. Issues and concerns that should be addressed relevant to the approval of a Preliminary Plan are identified. Staff utilizes the Standards for Sketch and Preliminarv Plan for Subdivision, as detailed in Section 5-280.B.3.e in the review of a Subdivision Sketch Plan application. Pluses and minuses appearing before each Finding indicate where Staff has found that the proposed development meets or could meet that Standard ([+D, will not be able to meet that Standard ([-D, is of mixed conformance (unavoidable negative impacts will likely result, but at an acceptable level) ([ +/- D, or that the Standard does not apply ([n/aD. Pursuant to Eagle County Land Use Regulations Section 5-280.B.3.e., Standards for Sketch and Preliminary Plan for Subdivision: STANDARD (1): Consistent with Master Plan. [Section 5-280.B.3.e (1)] - The proposed subdivision shall be consistent with the Eagle County Master Plan and the FLUM of the Master Plan. EAGLE COUNTY MASTER PLAN Eagle County Master Plan. Environmental Quality - Guiding Policy # 1 -The proposed development is located in a critical mule deer migration and winter range habitat area, and may negatively impact the function of the area as suitable habitat. Please see discussion under Eagle County Open Space Plan. Development - Guiding policy # 5 - Significant natural hazards may be present on this site to a degree that might limit development alternatives. The area is also identified as critical to mule deer for migration and winter range. - Guiding policy # 6 - A Clustered Development option is available, and was not considered as an alternative to this plan. Given the characteristics of this site, however, the minimum lot size of 5 acres required by the clustering option would probably render it ineffective as a means of setting aside sensitive land areas. Current zoning does allow for the layout as submitted. 9 02-27-2001 FLUM - The Future Land Use Map shows this area to be "Countryside" and indicates the possibility of future annexation of this tract by the Town of Eagle. The Town of Eagle has been reluctant to accept the annexation of this parcel through previous applications, although they have not been approached with this specific plan. The proposed development does comply with uses allowed under its current zoning designation of Agricultural Residential. EAGLE COUNTY OPEN SPACE PLAN Eagle County Open Space Plan. Hazards - The site is delineated on the Eagle County Hazards Map as requiring detailed geologic and engineering studies, and is immediately adjacent to an area (the Eby Creek drainage) that requires extensive geologic and engineering studies. The Colorado Geological Survev originallv recommended denial of the vro;ect as it is currentlv vrovosed aetter of 12/20/00). A second field investigation bv CGS with the Applicant's engineer resulted in a second letter from CGS (01112/01). in which thev state their belief that the hazards can be mitigated with avvropriate engineering. Staff remains concerned for the siting of safe building envelops and the close proximity of ISDS to the stream and/or flood zone set back, and is additionally concerned now for the site disturbance that may be required to accommodate "engineered geologic mitigation measures". Please see additional discussion under Site Development Standards and Suitability for Development. Wildlife - The proposed development is located in an area designated critical to wildlife. While the proposed density is low, access roads and activities associated with single family dwellings may disturb wildlife, and diminish the suitability of area as habitat. Strict adherence to the mitigating measures detailed in the report from Nature Tech Consultant Services, Inc. (10/19/00) and in the referral letter from the Colorado Division of Wildlife (12120/00) should be sufficient to reduce these impacts to an acceptable level. See further discussion under Site Development Standards EAGLE RIVER WATERSHED PLAN 10 02-27-2001 Eagle River WaterShed Plan. Water Ouantity - While the use of individual wells may prove to be a viable option for this project, the Applicant must demonstrate that the use of individual wells is the only alternative available for domestic water given the close proximity of public systems (ECLUR Section 4-680.A.1). In addition, the Applicant will be required to address concerns for adequate water for fire suppression as required by Section 4-680.B of ECLUR, and as detailed in letter from the Greater Eagle Fire Protection District (12/13/00). Should it be shown that individual wells are the only alternative, the Applicant should make all reasonable efforts to acquire augmentation water from sources in the upper Eagle River or Gore Creek basins so as to avoid depletion of flows in the Eagle River. Water Ouality - Development is close to a live stream that is tributary to the Eagle River. While the Applicant's engineer has stated that the use of individual sewage systems is viable, and will not adversely effect ground or surface water, the Applicant must demonstrate that use ofISDS is the only alternative available given the close proximity of public sewage disposal systems (ECLUR Section 4-690.A.1). Please see additional discussions under Site Development Standards. Wildlife - The site is identified as critical winter range habitat for mule deer. Please see discussion under Eagle County Open Space Plan (above) and Site Development Standards. EAGLE AREA COMMUNITY PLAN Eagle Area Community Plan. Environment & Sensitive Areas - The area to be developed is identified as a sensitive wildlife habitat, and has potentially significant geologic hazards. Please note earlier discussions. Circulation and Transportation - While properties involved do border the Town of Eagle, steep topography forces a considerable separation of the proposed homes sites from the Town. No pedestrian or bike pathways that would tie the developed site to the Town are contemplated by this plan. [+/-] FINDING: Consistency with Master Plan. [Section 5-280.B.3.e (1)] The proposed subdivision IS NOT presently consistent with all policies of applicable Master Plans. However, the Applicant MAY BE able to demonstrate full conformance to all applicable Master Plan Guiding Policies at application for Preliminary Plan approval. STANDARD (2): Consistent with Land Use Regulations. [Section 5-280.B.3.e (2)] - The proposed subdivision shall comply with all of the standards of this Section and all other provisions of these Land Use Regulations, including, but not limited to, the applicable standards of Article 3, Zone Districts. and Article 4, Site Develovment Standards. Article 3, Zone Districts [+] The uses proposed by this plan ARE in conformance with standards for the existing zone designation of Agricultural Residential. Article 4, Site Development Standards 11 02-27-2001 [+] Off-Street Parking and Loading Standards (Division 4-1) Adequate provisions for off-street parking and loading have been provided. [+] Landscaping and Illumination Standards (Division 4-2) Submitted plans discuss issues related to landscaping and illumination, and are adequate for Sketch Plan approval. [+] Sign Regulations (Division 4-3). A discussion of signs and related standards is provided, and is adequate for Sketch Plan approval. [+/-] Natural Resource Protection Standards (Division 4-4) [+/-] Wildlife Protection (Section 4-410) - The site proposed for development is in an area designated as winter range, critical winter range and migration corridor for mule deer. A report by Nature Tech Consultants Corp. (10/19/00) recommends seven (7) mitigating measures. A similar but more extensive list of mitigations has been provided by the Colorado Division of Wildlife (referral letter of 12/20/00). While plans submitted are adequate for Sketch Plan approval, the Applicant will be required to address and/or incorporate all of the recommendations made for the mitigation of impacts to wildlife in their application for Preliminary Plan Approval. [+/-] Geologic Hazards (Section 4-420) - Potential geologic hazards exist on the site. In their referral response (12/20/00), the Colorado Geologic Survey (CGS) stated that the geologic reports submitted bv the Applicant were insufficient, and recommended denial of the proiect pending further site specific geotechnical investigation and analysis. In a second letter (01112/01) sent after a second field inspection, CGS reversed this decision, stating that the proposal would be possible if appropriately engineered. Staff remains concerned regarding the location of safe home sites and is additionally concerned for the site disturbance that may be required to implement geologic hazard mitigation measures. See additional discussion under Standard 5-280. B. 3. e( 4), Suitability for Development. [+/-] Wildfire Protection (Section 4-430) - The Colorado State Forest Service (CSFS) has noted a moderate risk for wildfire on this site. In their referral response of 12/11100, CSFS recommended the inclusion of adequate truck turn-around's at the ends of each driveway, that defensible spaces be established around each home, that access to Eby Creek for the drafting of water be provided and that fire resistant roofing material be used. The Applicant will be required to incorporate these recommendations into the application for Preliminary Plan approval. [+] Wood Burning Controls (Section 4-440) - The applicant has agreed to incorporate existing Eagle County wood burning controls. [+] Ridgeline Protection (Section 4-450) - The proposed development is in an area designated on the Ridgeline Protection Map. However, no ridgeline impacts will result from the proposed development. [+] Environmental Impact Report (Section 4-460) - A preliminary Environmental Impact Report (EIR) was submitted with the application and was deemed to be sufficient for the Sketch Plan approval. [n/a] Commercial and Industrial Performance Standards (Division 4-5) Standards in this section do not apply. [ +/ -] Improvement Standards (Division 4-6) [+] Roadway Standards (Section 4-620) - The County Engineer has noted that road geometry specifications will be required at application for Preliminary Plan approval. Given the topographic characteristics of the site, it appears that the Applicant will be able to satisfy the appropriate requirements. Eagle County Road and Bridge has stated that they would rather not be responsible for the maintenance ofthe proposed access spur. This issue will also need to be resolved prior to Preliminary Plan approval. [n/a] Sidewalk and Trail Standards (Section 4-630) - No trails are proposed by the Eagle County Trails Plan for this area. [n/a] Irrigation System Standards (Section 4-640) - No irrigation outside of that used for 12 02-27-2001 individual homes is contemplated by this plan. [+] Drainage Standards (Section 4-650) - A drainage report dated June 16th, 1997 was included in the application and is deemed sufficient for Sketch Plan approval. As specified by referral from County Engineering, an updated drainage report will be required in application for Preliminary Plan approval. [+] Grading and Erosion Control Standards (Section 4-660) - No information or plans related to grading or erosion control on the site have been submitted to date. The Applicant will be required to satisfy these standards in their application for Preliminary Plan approval. [+] Utility and Lighting Standards (Section 4-670) - Standards for utilities lighting are discussed to a degree sufficient for Sketch Plan approval. Detailed information regarding utility layout and installation will be required at application for Preliminary Plan approval. Street lights are not required in the Agricultural Residential Zone District. [+/-] Water Supply Standards (Section 4-680) - Potable water is proposed to be provided by individual wells, and the Applicant is in the process of submitting an application for augmentation to the State Water Court. Lacking evidence of an official Water Resource Report and/or Water Court approved augmentation plan, The Colorado Division of Water Resources has stated in their referral response of 12/21/00 that the water supply is insufficient and that material injury to decreed water rights will result. The Applicant will be required to show evidence that water, in sufficient quality, quantity and dependability, will be available for this project in their application for Preliminary Plan approval. A domestic water line operated by the Town of Eagle currently exists in the Eby Creek Road right of way adjacent to this site. Section 4-680.A.l states that "Where approved public water supply is located within four hundred (400) feet of a development, the developer shall connect to such system...". This alternative to the use of individual wells is not adequately discussed in the application. The Applicant has asserted in subsequent conversation that by denying applications similar to this one, the Town of Eagle has, in effect, refused to serve the site. A letter from the Town to the Applicant's representative, dated 0 1 /l % 1, would indicate that the possibility of service by the Town remains open. The Town has placed conditions on hook up, however, that the Applicant is either not able to meet or is unwilling to accept. Prior to approval of the use of individual wells. the Applicant must also demonstrate that connection to the adjacent public water supply is not reasonably accessible or procurable. Water for fire suppression is also not contemplated by this plan, other than to point out that a fire hydrant exists 2000 feet to the north of the development on Eby Creek Road. Pursuant to section 4- 680.B, "the developer is required to supply fire fighting water, fire hydrants, and a fire fighting system of the type, size and number specified by the fire protection district having jurisdiction in the area." In their letter of 12/13/00, the Greater Eagle Fire Protection District provided requirements for road design and for the location and distribution of fire hydrants. The Applicant will be required to address water supply issues related to fire suppression. and specifically those items addressed in the referral response from the Greater Eagle Fire Protection District. in the application for Preliminary Plan approval. [+/-] Sanitary Sewage Disposal Standards (Section 4-690) - Individual Sewage Disposal Systems (ISDS) are proposed, and the Applicant's engineer has indicated that ISDS will work in the soils on the site. A domestic sewer line operated by the Eagle Sanitation District currently exists in the Eby Creek Road right of way. Section 4-690.A.l of Eagle County's Land Use Regulations states that "Where a public sanitary sewer system is located within four hundred (400) feet of a proposed development the applicant shall connect to such sanitary sewer system where and whenever feasible." This Alternative to the use of ISDS is not adequately discussed in the application. Staff has learned in subsequent conversation that, given the topography and terrain, a forced main or lift station system would be required to connect the proposed homes to the public system, and that designs for both have been 13 02-27-2001 contemplated in previous applications to the Town. Again, the Applicant would assert that by denying applications for land use similar to this one, the Town of Eagle has, in effect, refused to serve the site. This issue remains umesolved at the writing of this report. Prior to approval of the use of individual sewage disposal systems, the Applicant must demonstrate that connection to the adiacent public sewage disposal system is not feasible. [+] Impact Fees and Land Dedication Standards (Division 4-7) As detailed in letter from Karen Strakbein, cash-in-lieu of school land dedication is preferred, and is estimated to be $1006.36. Road impact fees will be assessed on a per dwelling unit basis. Payment will be due as a part of Final Plan Approval. [+/-] FINDING: Consistent with Land Use Regulations. [Section 5-280.B.3.e (2)] The Applicant HAS demonstrated that the proposed subdivision complies with all of the standards of Article 3, Zone Districts. While the Applicant HAS NOT fully demonstrated that the proposed subdivision complies with all of the standards of Article 4, Site Development Standards, the Applicant MAY BE able to meet the applicable standards at application for Preliminary Plan approval. STANDARD: Spatial Pattern Shall Be Efficient. [Section 5-280.B.3.e (3)] - The proposed subdivision shall be located and designed to avoid creating spatial patterns that cause inefficiencies in the delivery of public services, or require duplication or premature extension of public facilities, or result in a "leapfrog" pattern of development. (a) Utility and Road Extensions. Proposed utility extensions shall be consistent with the utility's service plan or shall require prior County approval of an amendment to the service plan. Proposed road extensions shall be consistent with the Eagle Countv Road Capital Improvements Plan. (b) Serve Ultimate Population. Utility lines shall be sized to serve the planned ultimate population of the service area to avoid future land disruption to upgrade under-sized lines. (c) Coordinate Utility Extensions. Generally, utility extensions shall only be allowed when the entire range of necessary facilities can be provided, rather than incrementally extending a single service into an otherwise un-served area. The spatial patterns proposed by this development are not anticipated to cause the kind of inefficiencies contemplated by this standard. The Applicant is required to demonstrate that these standards will be met at application for Preliminary Plan approval. [+] FINDING: Spatial Pattern Shall Be Efficient. [Section 5-280.B.3.e (3)] The proposed subdivision IS located and designed to avoid creating spatial patterns that cause inefficiencies in the delivery of public services, or require duplication or premature extension of public facilities, or result in a "leapfrog" pattern of development. STANDARD: Suitability for Development. [Section 5-280.B.3.e (4)] - The property proposed to be subdivided shall be suitable for development, considering its topography, environmental resources and natural or man-made hazards that may affect the potential development of the property, and existing and probable future public improvements to the area. Concern exists for potentially significant geologic hazards and their impact on the location of safe home sites. The Colorado Geological Survey originally recommended denial of the project as submitted (letter of 12/20/00), pending additional site specific studies related to debris flow hazards, delineation of flood zones, stream channel stability and soil and bedrock conditions. A second and more thorough site visit by CGS resulted in a second letter (01/12/01), in which CGS reversed their earlier position and stated that the project, as proposed, could be accomplished if appropriate engineering were applied. The potential for debris or mud flows remains a concern, however, especially on lots 1 and 2 (please note earlier discussion under Eagle County Open Space Plan). Routing of storm water and debris flow material across alluvial fans, rock fall hazards, the delineation of the flood plain for Eby Creek and issues related to the location and engineering of individual sewage disposal systems will need to be resolved as the Applicant works to establish safe and buildable home sites. 14 02-27-2001 As a result of the on-going efforts of the Applicant and the Applicant's engineer to address these issues, Staff finds the application, as modified by referral response and as conditioned by this report, sufficient for Sketch Plan approval. [+/-] FINDING: Suitability for Development. [Section 5-280.B.3.e (4)] While the Applicant HAS NOT fully demonstrated that the property proposed to be subdivided is suitable for development, considering its topography, environmental resources and natural or man- made hazards that may affect the potential development of the property, and existing and probable future public improvements to the area, the Applicant MAY BE able to meet the applicable standards at application for Preliminary Plan approval. STANDARD: Compatible With Surrounding Uses. [Section 5-280.B.3.e (5)] - The proposed subdivision shall be compatible with the character of existing land uses in the area and shall not adversely affect the future development of the surrounding area. The use proposed is similar to and compatible with the existing land use in the surrounding area. It appears unlikely that the future development ofthe surrounding area would be adversely affected by the subdivision and development of this land. [+] FINDING: Compatible With Surrounding Uses. [Section 5-280.B.3.e (5)] The proposed subdivision IS compatible with the character of existing land uses in the area and WILL NOT adversely affect the future development of the surrounding area. Chairman Stone stated this file was heard on February 61h and it was continued. Mr. Simonton showed an aerial photograph of the parcel. He explained the previous tabling. He spoke to the memo from Adam Sommers and Rudy Zitti. He noted while the applicant continues to work with the Town of Eagle, he is unaware if they have come to agreement at this time. He spoke to the memo from Sid Fox and the keeping of horses. He stated as proposed these lots are zoned to allow for animals. Sid Fox, representing the applicant, stated he thinks it is important to focus on the sketch plan before them today. In summary there is a five lot sketch plan proposed with no subdivision application requested. He stated as mentioned the last time, this application has been before the Town of Eagle for a number of years. He has been involved for the last couple of years. He stated his first effort was to approach the Town staff with the sketch plan and stated they were requesting Town water but wanted to go through the County process. He stated the plan was met favorably and they were encouraged to continue through the Town process. He spoke to the Town zoning and it being a PUD. He stated they met with Bill Heicher, Division of Wildlife, and as they approached the Planning Commission with the Town they were working through issues. Staff felt comfortable enough to proceed through preliminary plan. The reason they were able to provide the supplemental information as it was available through the Town process. What they have received in the supplemental materials is a covenant. They have gone above and beyond what zoning asks for and added covenants. He spoke to the culvert that is in place with one access proposed. There will need to be some fill added. There is no additional access. They have added some additional environmental protection in the building envelopes and through the covenants. Chairman Stone asked for public comment. Will James, a 71h grader at Eagle Valley Middle School, stated he was hear today to help save Eby Creek and to understand the decision making process. He handed out a portfolio. He explained his interest in the impacts of development along Eby Creek. He spoke to the geologic hazards and the potential impacts to wildlife. Maria Scott, an 81h grade student at Eagle Valley Middle School, explained her involvement with Eagle Valley River Watch and other activities in which she has participated. She spoke to the samples collected. She submitted newspaper articles to the Board. Sara Dabner, an 81h grade student at Eagle Valley Middle School, spoke to her work at the mine 15 02-27-2001 clean up and with River Watch. She stated she has collected samples in Eby Creek and on the Eagle River and Brush Creek. She thanked the Board. Walt Valdez stated they do care about Eby Creek. He is a 7th grader and has trained students himself. He has learned enough to make a program to study Gypsum Creek. Tim Kelly, a citizen of Eagle and a member of Town of Eagle Planning and Zoning Commission. He has seen this piece of property has come through four or five times. He spoke to one plan that was previously submitted by the previous owner that they were close to approving. Mr. Kokish has not agreed to the terms. He spoke to that area being given to public ownership or private common ownership. Another condition was that no livestock be allowed. The proximity of horse activity to the creek is a concern. Another condition was that there be no construction on the mesa above the steep slope. He spoke to his request of the creation of a bike path to serve Eby Creek and other residents. That has not been included. In the latest submission there was an easement adjacent to the road, but unfortunately there are areas along the road that are not feasible. He suggested if the bike path was on the eastern side of the creek it would help protect the creek. He spoke to documents in relation to the Eby Creek corridor. He read from those documents. The main problems that he has had with any of the development suggestions for this property have been much larger private ownership without clustering with no provision for future pedestrian or bicycle access along Eby Creek Road. There is no access for that activity to Eby Creek Mesa. He suggested Mr. Fox stretched the truth about the minor tweaking. He stated there were major concerns including the roads meeting the Town's standards. He would hope the Board would view this subdivision in light of the changes that should be made to the plan to protect the natural assets and the stream corridor. Chairman Stone asked if the applicant were going to make the changes spoken about would he be in favor of this moving forward. Mr. Kelly stated he would be in favor of the plan with several conditions. He spoke to the Eagle Area Community Plan and keeping development closer to the Town. It is property that is appropriate to be developed. He is concerned with how it will be developed. He spoke to the building footprints and the use of horses will be a mistake. Commissioner Menconi stated the plan he referred to earlier, was the seven unit plan for affordable housing. Mr. Kelly stated that was the plan submitted by David Falkenberg. He believes it was a five unit development with a segment to the south which was providing a lot. He doesn't believe there were more than five parcels on the property and the entire stream area and easement was to be a public space. There was a park area that was proposed. Gordon Schicoine stated he is a land owner in Eby Creek. He is concerned with what will happen in the end. He stated he is concerned with the people who have endorsed the project. He spoke to a letter ofEby Creek Homeowner's who have endorsed the proposal. He stated they want to make sure that it is kept nice and that it is only five homes. He questions what direction it will take if this doesn't move forward. He spoke to attempts to keep it open space and that there are organizations that could have helped. That hasn't worked. He is concerned that there will be one home owner with one house. He stated his biggest concern is that it will be used for agricultural and that there is no protection. He is concerned they may have a pig, sheep or goat farm. He hopes that the letter from Eby Creek endorsing this will allow this to move forward into preliminary plan. He stated in the last meeting there were remarks made to the character of the applicant. He stated as he was building his house he asked if he could dump the loads on his property. He explained Mr. Polkish placed many restrictions on him if he was going to dump dirt there. He was very concerned. He wants to be sure that the other voices that aren't here today are heard and that to consider the concern of what happens if this project doesn't proceed. Chairman Stone closed public comment. Sid Fox stated the public comment is well received. They understand the sensitivity ofthe land 16 02-27-2001 and the need to think carefully before developing. He stated this is only sketch plan. He spoke to the standards that must be mitigated. He spoke to the on site sewage disposal and the requirements and standards that protect the sight and the environment. He stated they incorporated the comments of the Division of Wildlife. He spoke to the set backs and the wildlife mitigation plans. He stated they have committed that the maximum area of disturbance will be 16,500 square feet. The site will remain open on the south end of the site to try to maintain the wildlife corridor. Dog controls have been mitigated. The plan reflects early comments by the staff for accommodating the wells and septics. They can work with proper set backs and resources can be maintained. They have incorporated the concerns into the plan. John Polkish, owner ofthe property, stated they do have larger envelopes on the plan than what will be disturbed. They are larger to offer flexibility within the site but the total disturbance is 16,500 per unit. He spoke to the mitigation methods in place. They have no intention of building on the ridges nor the flat spots on the mesas. There is no home development up there. What seems to be lost is that they have well over 40 acres that will be undisturbed. He stated only a couple of acres will be disturbed for homesites with the scope of things in the total area. He stated it is true Mr. Falkenberg had a plan in place but that expired prior to his purchase. Mr. Kelly sat on a Planning Commission that gave approval during the summer of 2000 with a seventh lot available for an employee housing unit for the Ambulance District. He stated they are very sensitive to the site and have addressed concerns brought forward. He thanked the Board. Chairman Stone asked if the Planning Commission granted approval but the Town Board turned it down. Mr. Poklish stated they did not gather support for approval of the plan and that the Town felt there was not enough Town benefit. He spoke to the employee units but it was deemed there was not enough Town benefit. He stated that was not everyone. Commissioner Menconi asked for the vote. Mr. Polkish stated some of those in favor were not present at that meeting and they chose to pull the plan rather than have it be denied. They did go to the Board with planning and staff approval. He stated the vote on the annexation was what looked to be denied. He suggested they never did get to the plan itself. Chairman Stone stated he takes the sketch plan approval process as serious as any other plan and that he does not want to mislead an applicant to believing he is in support ofthe plan ifhe isn't convinced the plan is a good one. Commissioner Gallagher asked about the fence posts. Mr. Simonton stated livestock is a use by right. The fact the land crosses the stream, he questions how they would protect the stream and water somewhere other than the riparian zone. Those things are normally worked out at preliminary plan. Commissioner Gallagher asked if Engineering has looked at the soil reports. Adam Summers, Engineering Department, stated they look conceptually at the plans and it does meet the standards. It has posed some mitigation factors to be addressed at preliminary plan. Commissioner Gallagher asked Ray Merry about the ISDS and how it works. Ray Merry, Environmental Health Officer, stated it is a tank to retain solids and liquids for a 30 hour period of time and then are absorbed into the leach field. Commissioner Gallagher asked if he has looked at the site. Mr. Merry stated he has and he believes there are suitable soils. Long term reliability is a concern. Quite often the owner is incumbered by the leach field and is not able to modify the structure. Commissioner Gallagher asked about the leach field. Mr. Merry stated the depth is about 3 feet. They try to keep it shallow to take advantage of oxygenation. Commissioner Gallagher asked about the creation of the parcel. 17 02-27-2001 Mr. Simonton stated it was originally one lot and there was a covenant that did not allow for more than one lot, however that covenant was amended for this parcel. Commissioner Menconi asked about the water for Eby Creek Mesa. Mr. Simonton stated there are domestic lines and two tanks supplied by Town water and there is sewage treatment by the Town. Commissioner Menconi asked how they are proposing the water be handled. He asked if the sketch plan is calling for that. Richard Migchelbrink representing the applicant, stated this sketch plan is not calling for Town services. It is ISDS. It is physically possible to use Town services but doesn't think it is politically possible. Commissioner Menconi asked about the applicant transferring the water rights to the Town. He asked about Eby Creek transferring those rights. John Polkish stated he wrote the Town and stated ifhe in deed owned the water rights he would convey them to the Town. He stated he has not received any response from the Town stating their position. He spoke to the water rights and that they were conveyed to the Town to supply Eby Creek Mesa with water taps. He stated he is powerless to force the Town and they are very willing to pay for the taps and supply one to each of the lots. He stated that was what prompted them to make a contract with the River District to supply wells for the development. They will abandon that and pay for the water taps with the Town. He stated they did offer to pay for a tap to provide water for fire protection by adding a hydrant. Commissioner Menconi asked which method they would prefer. Mr. Polkish stated he would prefer to buy the water tapes. He stated overall that would be the best solution if the water is obtainable. He stated that is why they obtained the permits to the wells as a back up. They do not want the water to be the negative factor that holds up this project. Mr. Fox stated in context ofthe past years efforts with the Town, they have responded that they will provide water but it is subject to an annexation agreement. They went through the Town process with the annexation application in context with the Town zoning plan and it was determined there wasn't enough benefit to the Town. He stated approval by the Board of County Commissioners at sketch plan does not automatically preclude them from continuing to work with the Town. Chairman Stone asked if Mr. Powell stated water would be provided and the annexation was not necessary . Mr. Fox stated he believes it is conditioned on annexation. Commissioner Menconi asked how complicated it is to decern who owns the water rights. Mr. Simonton stated he is out of his league but believes it would be necessary to have a water attorney. Mr. Polkish stated he was asked to hire a water attorney to identify the conveyance of water rights. He stated after much research they received a letter from the State Engineers office. He stated they didn't know 100% who owned the rights and ifhe does, he would convey those rights. He spoke to other rights that had been conveyed to the Town. He stated none ofEby Creek Mesa is annexed into the town. They were being asked to abide by a different set of rules when they are part of Eby Creek Mesa that has a supply contract in place. Commissioner Menconi stated if this was to move forward it would be his preference it be connected to the Town's water and sewer. Mr. Simonton stated staff would support that. The applicant has acquired the water to support the wells and septic. Mr. Merry stated again, it is a reliability issue for the sake of water quality and reliability. He suggested the water from the wells will probably not be very good and is likely to look bad, taste bad and smell bad but not be harmful. They would like to see it on the Town system as well. Commissioner Menconi questioned the ownership of riparian areas. 18 02-27-2001 Mr. Simonton stated within the covenants you can set aside conservation easements that would still be owned by the property owner or there could be a PUD which could define open space area. Commissioner Menconi asked the applicant to speak to the protection of the riparian area. Mr. Fox stated the riparian corridor is very small. He stated livestock could do significant damage in a hurry. In light of a barn, what they have done is develop the best management practices in case someone does want to have a horse. There is no open grazing allowed based on the covenants they are proposing. He spoke to the confinement of horses with the fenced corral not being more than 3000 square feet and they shall not have direct access to Eby Creek. He stated it is a standard subdivision otherwise. Commissioner Menconi asked if they have explored private/public interest in the riparian area. Mr. Fox stated they spoke with Bard Udahall and the Eagle Valley Land Trust and had a couple of meetings but were not able to come up with a solution for both parties. Commissioner Menconi spoke to discussions about public offerings of the property for a bike or pedestrian path. Mr. Fox stated the road is on the western side of the road right of way. As you look at the site from the road, the right of way extends into the riparian and wet lands creek area. In the future, if you wanted to approve the road, there is adequate right of way to do it. The difficulty is that it would be expensive, but it is very possible. There is public right of way there to accommodate a bike path or trail in conjunction with the county road. They looked at several options. The right of way on the west includes much of the creek area. Commissioner Menconi stated his concerns are firstly, the water access. The second is a form of public offerings for protection of the riparian area. Third is the horse activity. What they had discussed was the engineering necessary. Rich Migchelbrink spoke to the debris flow and rock fall. He stated they have put berms and grading behind the building envelopes. He stated Geo-Engineering did not see it as a big deal. Commissioner Menconi spoke to the report by Mr. Zetti about the burning that was taking place. Mr. Zetti stated the applicant had a permit but it may have been issued under some misunderstanding. Mr. Polkish agreed to stop the burning, but started it up again. Commissioner Menconi asked if the concerns about the burning and the damage and if Mr. Zetti could reply to those. Mr. Zetti stated any conversations he has had with Mr. Polkish have addressed the problems and they have been resolved. He suggested they may need to revisit the site once the ground thaws. The concerns are minor at this time. Commissioner Gallagher asked for the information on the flow of Eby Creek and if that information is available. Mr. Fox stated he can pull that from the drainage plan. Commissioner Gallagher asked what the Town said when asked for a hydrant. Mr. Polkish stated his two most recent letters to the Town were not responded to. He stated the first was submitted on the 8th after this meeting. He stated he tried to treat the hydrant as a separate issue reflecting on public safety and fire concerns. He stated there has been no response. Mr. Fox stated with respect to wildfire measures they have adopted the State's requirements. He stated the cul-de-sac is designed to meet County standards for emergency vehicles. The sketch plan included a drainage study that is a few years old. It states the 100 peak discharge being 653 cubic feet per second. Commissioner Gallagher stated he is particularly interested in low flows. Mr. Migchelbrink stated at low flows it probably goes down to almost nothing. Commissioner Gallagher stated most fires happen at Christmas time. He stated if not a wet hydrant, a dry hydrant. Chairman Stone asked Mr. Simonton to characterize this process as compared to a PUD. 19 02-27-2001 Mr. Simonton stated the difference is actually not significant for a development this size. The PUD would require a PUD document but otherwise the complexity of this project is minimal and the PUD would be less restrictive. He stated the applicant chose not to go with the PUD. Mr. Fox stated the pun is a combination often used for mix use or the larger more complex developments. He stated the land owner is satisfied with the zoning. The other reason you might go to a PUD is to protect sensitive resources. He stated they have mitigated the steep slopes and the riparian area. Chairman Stone asked ifhe'd explain the sketch plan before them. He finds it confusing. Mr. Fox stated the site is 57 acres. He showed the Ambulance building. They are proposing five lots. He stated they have identified in grey the approximation of the building envelops. He stated staff asked them to clarify some of the site characteristics. He stated they began locating the potential primary structure. Mr. Polkish showed where lot one is located and pointed out the on site septic. He stated lot two has two potential building sites. He stated the owner could chose from the two potential sites. That is the same with lots 3 and 4 with five and one having only one potential building site. He stated the driveway does split in half the buildable area. Chairman Stone suggested they could restrict the building to the east side of the creek. Mr. Polkish stated that is possible but the covenants are quite restrictive. Chairman Stone stated his general concerns are water and sewer, horses, the roads and bike paths. He asked the County Attorney what are the requirements for making a decision in favor of this. Renee Black, Asst. County Attorney, stated the findings are in staff's report. Because this is still the sketch plan, they can make conditional findings. Chairman Stone spoke to the findings found on page 10. He stated the first is consistency with the Master Plan. He read that finding. Mr. Simonton stated they incorporate the referrals from the outside agency and the mitigating measures. Because the sketch plan is not that detailed they hope but can't guarantee the finding will be met. Chairman Stone asked what are the areas of concern to them. Mr. Simonton stated the concerns ofthe Division of Wildlife, the concern expressed by the Colorado Geologic survey. They will send out more detailed plans for further comment. He stated staff's general approach with the plus and minus is that the information is sufficient for sketch plan but that more detail is needed. Chairman Stone asked about the positive check marks. The next standard is consistency with Land Use Regulations. There is a positive and negative by Wildlife Protection, Geologic Hazards, and Wildfire Protection. He stated he would poll the Board regarding this issues. Commissioner Gallagher stated concerning the finding of consistency with the Master Plan he questions that. Chairman Stone spoke to the tables and the notation of mixed conformance. Commissioner Gallagher asked if the plus/minus marking is a summation of the various types of reView. Mr. Simonton stated the plus/minus indication implies the applicant should be able to meet the criteria at a later date. Commissioner Gallagher stated he does not find that it is consistent with the Master Plan. Commissioner Menconi suggested that at this stage in planning there is an opportunity that these findings will be corrected or adjusted before preliminary plan. He stated he would trust the process at this stage of sketch plan. Chairman Stone stated he is actually undecided and he is very concerned about the natural resource protection standards. 20 02-27-2001 Commissioner Menconi asked about the positive on the Environmental Impact report. Mr. Simonton stated it outlines the impacts that may happen and they need the information of mitigation before they can continue. He stated they need to have proof those have been addressed at a sufficient level. Chairman Stone moved to Improvement Standards and asked why they have the plus and minus. Mr. Simonton stated water supply standards and sanitary sewage disposal are still at issue. Chairman Stone suggested he is not moved by comments regarding the politics of the situation. He stated it is by politics that Eagle County has tried to bring groups together. He stated he has a real problem with these homes being that close to the stream. Can they be counted upon for long term reliability? He spoke to Red Sky Ranch and that they do not have the availability of a sewage line. He explained the systems they will be installing that will be managed by the local sewage provider. He stated eventually these systems will not be managed properly they could end up having problems and are delaying the inevitable. He stated he feels the same with the water. He asked if they have an agreement to purchase water from Wolford. Mr. Polkish stated they have contracts on the Eagle and the Colorado River. He stated he believes that all the contracts have been met for them to drill wells. Chairman Stone stated he has a hard time justifying not hooking into the water line. He asked the Commissioners for their input. Commissioner Gallagher stated the potential threat to Eby Creek for 5 ISDS systems, he does not find acceptable especially so with Town services running right down the street. Commissioner Menconi stated he addressed that earlier and he believes there are complicated issues to be worked out. He feels that the applicant believes they can work that out. He agrees with the other Commissioners and their concerns. Chairman Stone asked if Commissioner Menconi is interested in seeing this move forward if they are going to be using ISDS. Commissioner Menconi stated he can't answer that without exhausting the possibility of working with the Town for both water and sewage. Chairman Stone suggested what if there is no way the applicant can work out an agreement to get five taps for water and sewage. Would he be amenable to allowing this to move forward. Commissioner Menconi stated he would like to see the process continue and can not at this time make a determination. Chairman Stone asked Commissioner Gallagher if he were to approve this what kind of conditions would he place. Commissioner Gallagher stated first is the need to hook up. He suggested it looks to him that they are trying to put a $5.00 project on a $1.00 site. He is concerned with the need to place five dwelling units on this parcel. He believes five units are too many. He has done site visits and seen where they plan on putting the units. He stated he honestly can't see it work. Commissioner Menconi asked how many units he sees. Commissioner Gallagher stated it is zoned for one house now and he thinks that is more appropriate. Chairman Stone suggested they can approve with conditions. He read the conditions into the record. He asked the County Attorney about #2 and #3. He asked if they are worded as such because the County really can't require the applicant to hook onto the water and sewer of another entity. Ms. Black stated the County can require that the approval be conditioned that the applicant may have to hook into some public water/sewer system. They would have grounds if they find the environmental or safety issues were identified. Chairman Stone stated another concern is the horses. He stated in his estimation he does not believe the site is suitable for horses and that is especially true with five units. He asked the Commissioners for comments or questions. 21 02-27-2001 Commissioner Gallagher moved the Board of Eagle County Commissioners approve File No. SDS-00009, Eby Creek Ranch, incorporating all staff findings, with the following conditions: I) That prior to Preliminary Plan approval the Applicant show evidence that issues related to geologic hazards, as defined by the Colorado Geological Survey (letter of 12/20/00 and follow up letter of 01/12/01) relative to the location of safe and adequately sized building sites, have been resolved. 2) The Subdivision will be hooked up to a public water system. 3) The Subdivision will be hooked up to a public sewer system. 4) That prior to Preliminary Plan approval, the Applicant show evidence that all water supply and access issues related to fire fighting systems, as detailed in the referral response from the Colorado State Forest Service (12/11/00) and Greater Eagle Fire Protection District (12/13/00), have been resolved. 5) That prior to Preliminary Plan approval, the Applicant show evidence that all mitigating measures for wildlife protection, as detailed in both the report by Nature Tech Consultants Corp. (1 0/19/00) and in referral response letter from Colorado Division of Wildlife (12/20/00), have been addressed and/or incorporated into the Plan. 6) That the application for Preliminary Plan approval incorporate and/or resolve the recommendations of Eagle County Engineering, Eagle County Road and Bridge, Inter-Mountain Engineering, Ltd., Nicholas Lampris, Phd., and Montane Environmental as they relate to development on this site. 7) That all material representations made by the applicant in submitted materials and in public meetings shall be adhered to and considered conditions of approval, unless otherwise amended by other conditions. Commissioner Menconi seconded the motion. In discussion, Commissioner Gallagher stated his making this motion is not an indication that there are to be five units there but simply for the applicant to proceed to submit some compatible plans. Chairman Stone called for the question on the motion. The vote was declared unanimous. Champions Grill Commissioner Gallagher moved to adjourn as the Board of County Commissioners and reconvene as the Local Liquor Licensing Authority. Commissioner Menconi seconded the motion. The vote was declared unanimous. Earlene Roach, Liquor Inspector, and Bob Emerson, Prosecuting Attorney, presented the renewal of a hotel and restaurant license for Monet's Tavern, Inc., dba/Champions Grill. This is a notice of hearing to determine if the license should be renewed. She introduced Bob Emerson. Brian O'Reilly, representing Monet's Tavern, ask for a request for a continuance as he did so previously. He stated he would like to detail the timing and the efforts of the client to gain representation. He understood the violation notice was received on or about Monday, February 5. The client called Jim Farenhotlz for representation but was told that he was representing Theresa Firkins, the bartender, and there might be a conflict of interest. Mr. Farenhotlz suggested he would call the client back. He also suggested that due to a scheduling conflict the client might want to request a continuance. He stated his client then contact Michael Murphy, an Attorney from Denver who deals with this type of thing. He suggested the client request a continuance. His client then delivered a letter on February 15th to the Board requesting a continuance. He then called back Mr. Farenhotlz to see ifhis schedule had changed but while there was no conflict they had conflicts with the date and could not attend. The client then contacted Mr. Esqwith who was going to be out of town. Mr. Dockery then talked with Mr. O'Reilly last Friday and he has agreed to represent Monet's Tavern, but in the short time frame, there would not be ample time to interview the parties involved. He spoke to the request for investigator notes. A report has since been generated, but without the notes, they don't have the information to 22 02-27-2001 examine or cross-examine the witnesses. He stated they are all aware that this investigation one way or the other resulted in a death which makes this a very important issue. He believes that under these circumstances, and through no fault of his own, he is entitled to a continuance. There may be witnesses that may be brought forward that may provide a different outcome. He can not see the sense of this Board to want this situation to occur in which an appeal can be sought before this hearing begins. Chairman Stone asked ifthere is anything that might be added by Ms. Roach that would be similar or different and what her take is on this. Earlene Roach stated the death happened on October 9th. She stated it took a while to get the Sheriff s report, she brought the Board a packet of information who decided to issue a Show Cause Notice. The applicant was informed that there was going to be a hearing and she advised the applicant to hire an Attorney. She stated she spoke with Mr. Farenhotlz on Friday and related he was going to be the Attorney but there was a potential conflict of interest. Mr. Emerson stated he was hired by the County on December 11 th and at that time he understood Mr. Dockery had asked for and obtained all ofthe Sheriffs reports at that time. That also included witness and reports. He spoke to the young ladies being present today and that Mr. Dockery had those reports. He stated he also had copies of the interviews of other people. He stated Brian Turner, the Liquor Enforcement Officer of Grand Junction is also present under subpoena. He was contacted by Mr. Farenhotlz on Friday. He stated he was contacted by Mr. O'Reilly yesterday afternoon and sent him the copies of the reports as requested. He stated Mr. Turner does have some hand written notes and he did not receive those until yesterday. He asked Mr. O'Reilly what he wanted and provided those to him. Also here today is Scott Hunter who was subpoenaed is present today. He does not feel it is the responsibility of the office or of him to provide the information. He stated this is now a renewal hearing. He understands the position ofMr. O'Reilly, but he is ready to go forward. Mr. O'Reilly stated in response, until the client is served with a notice of violation he doesn't think anybody can begin an investigation. He stated assuming he was correct in the notice being received three weeks ago is. He stated there has been some allegation and reinvestigation, it would be his practice to interview them again. He stated they would have had only a very short time to respond after the re-interview. He stated the autopsy report was delayed and the Sheriff has had since October 9th and Mr. Emerson since December to deal with this and they have only had three weeks. He suggested they should all take Mr. Dockery at his word. This is a serious matter. First a person has died and secondly they may loose their livelihood. Chairman Stone spoke to the amendment of the liquor license regulations regarding the renewal of the license. He stated knowing the laws, each license holder is aware of the process. Mr. O'Reilly stated if there were a continuance, the license would continue until such time of the new hearing date. Chairman Stone stated they like to deal with the license on a timely basis. He asked how much time they were requesting. Mr. O'Reilly stated thirty days. Commissioner Gallagher asked again when they received the notice. He asked Ms. Roach if at any time she received notice that Mr. Dockery had retained an Attorney. Ms. Roach stated Mr. Dockery stated the applicant had obtained Jim Farenhotlz approximately two and a half months ago. Ms. Black stated in 12-47-302 is the notice requirement and it provides notice shall be given 10 days prior to the hearing. Ralph Dockery, husband of the owner, stated he is the one that has been dealing with this since it happened. He stated he contacted Ms. Roach a few weeks after it happened. He then contacted her a few weeks later and asked for the investigative reports. He stated he said he contacted Mr. Farenhotlz, but never said that he was the Attorney. He submitted his license renewal. He stated he received the notice on the 5th and that was the first notice he had that there would be a hearing. 23 02-27-2001 Commissioner Gallagher stated it appears to him that the liquor license holder understood the need to contact an Attorney. He believes they complied with the statutes giving ten days notice. Commissioner Menconi asked for legal direction. Ms. Black stated the law requires only a ten day notice and it is up to the Board to listen to the information requested. Commissioner Menconi asked Ms. Black if each individual situation may be different depending on the parties. Ms. Black stated she feels comfortable proceeding with this hearing. Commissioner Menconi asked about the appeal of this. Mr. O'Reilly stated in a courtroom setting that when you are talking about a case this serious when there is a death or where an individual may loose their livelihood, it is the fundamental fairness. He stated there were forty people in the bar. He stated he did not get any fax from Mr. Emerson. He stated there are things that Mr. Emerson has that he doesn't have and they are also entitled to be advised by due process of the violation. He suggested someone's thoughts does not give them ample notice. He asked again to look at the seriousness of the matter and the three week time frame. Chairman Stone stated they are not making any decisions as to the criminality and believes they can move forward. Mr. O'Reilly asked ifthey are only having a hearing on the renewal. Ms. Black asked if a notice of violation has been issued. Mr. Emerson stated no. They have the ability to review the violations that may have been violated. He read the statute and explained good cause. He stated they would put the evidence of notice into evidence. Chairman Stone stated this is a renewal license hearing and not a show cause. Mr. Emerson suggested the Board make a motion. Commissioner Gallagher moved they proceed with the liquor license hearing for Monet's Tavern Inc. doing business as Champions Grill. Commissioner Menconi seconded the motion. In discussion Commissioner Menconi stated he understands that this is a matter of renewal and asked for a definition of the notice of hearing. Ms. Black responded the other kind of hearing is a Show Cause on a specific violation. One of the things that can be considered are the alleged violations that may have occurred. It was included in the notice so that the license holder will understand the matters to be discussed. Chairman Stone called for the question on the motion. Commissioners Gallagher and Stone voting aye and Commissioner Menconi voting no. Ms. Black stated she would like to clarify that the license holder in this case is Cathy Dockery and not Ralph Dockery. Mr. Emerson stated he would like to review the process for this hearing. Chairman Stone asked him to specify the possible outcomes as well. Mr. Emerson asked Ms. Roach to deliver to the Board a copy of the relevant regulation and Statute which is at issue here. He stated this is a renewal hearing and at this hearing it is appropriate to consider whether this license should be renewed. He spoke to "good cause" and the finding of a violation of the liquor code or violation of a regulation. That is the last page which talks about the violation of serving a visibly intoxicated person or to allow profanity, rowdiness, undue noise on the premises. The state also talks about the manner at which the bar is being operated and adversely effects the health, safety and welfare of the community. He suggested over service is of concern. He believes there is good cause to not renew this license. He stated usually these hearings are conducted in a show cause manner. He spoke to the various outcomes and sanctions that could be considered. He stated the burden of proof and the burden of going forward is his burden having been hired by the County. He explained the Board controls how this hearing is conducted. What he would propose to do is provide an 24 02-27-2001 opening statement and Mr. O'Reilly will have the chance to do the same. He would defer addressing any sanctions until a violation has been found. Chairman Stone stated he would agree with the manner of procedure suggested and would like for Mr. Emerson to indicate what he will be recommending if a violation is found. Mr. Emerson stated the evidence they intend to introduce is that on October 9th, Carolyn Barton was a patron of Champions having entered in at 4:30, she consumed two 22 ounce beers, which is the equivalent of four 12 ounce beers. She left the bar for a short period of time to what they believe was a trip to a grocery store and then returned shortly after 7:00 p.m. and began drinking in the bar. She paid for four 22 ounce beers, one 12 ounce beer, numerous shots and well drinks and that Visa bill will be offered into evidence. She bought shots for others and they bought shots for her. The roommates came into the bar at about 8:30 p.m. to 8:45 p.m. and can described signs of the intoxication and that she considered herself messed up. The witnesses will describe the amount of alcohol Ms. Barton had to drink that evening, the signs of intoxication which included being very animated, high, loud and boisterous. She had a red flushed face, brushing her hair and face, had trouble walking as she stumbled over a stool. She was having trouble with her speech. He explained that during the course of the evening the bartender cut her off and then again served her later. She left the bar shortly after 11 :00 by bicycle. She was offered an opportunity to ride home with friends. The witnesses have indicated that normally when she decided it was time to go home, she went straight home and did not go anywhere else to drink. He stated they believe that to be the case. She rode west on the bike path towards her home and after about a mile down the road, she rode off the bike path, went into Lake Creek and drowned. Her body was found the next day. Her blood alcohol level at the time of death was .216. Colorado law presumes a person with a blood alcohol level over .1 is intoxicated. In this case it was twice that amount. The evidence they will present will clearly establish this was a woman who was in the bar, drinking hard, showing clear visible signs of intoxication yet she was still served. He stated that is a violation of the Statutes and the Colorado Liquor Code. He stated the second prong of evidence is how that establishment has functioned historically. He stated they have introduced a packet of evidence that reviews the various violations that have occurred in that establishment historically. He thinks the evidence will show a pattern of violations. He stated it is incumbent of the license holder to manage the facility in accordance with the Liquor Code and especially so when it affects the health, safety and welfare of the neighborhood. He stated they are asking for the harshest possible remedy, that the license not be renewed, based on this occurrence and the matter of conduct of this establishment. Brian O'Reilly stated he would like to review what the evidence will show and not show. He suggested that it is fundamentally unfair and the introduction of records of violations without notice. He stated he has no evidence of the time of death. He suggested the evidence will show how much and when Ms. Barton drank and that the evidence will clearly show that there was opportunity for her to visit another establishment. He stated the evidence will also show that the blood sample was not drawn for almost another 24 hours later. He stated it was not tested for another 24 hours. He has no evidence with what was put on. They will produce the bartender who will speak to what was ordered and served. Another witness will suggest that she will testify that there was no need for Ms. Barton to be cut off. In respect to Ms. Barton's roommates, he is not sure what they will testify to. He suggested if they had been drinking that might need to be considered as well. He stated lastly he would point out they sought and had the agreement of another party present that night. They did not have the time to serve subpoenas but they did not appear. Mr. O'Reilly stated it will be shown by omission where Ms. Barton went at 11 :30 at night. In respect to the conduct of the establishment he has no evidence. Chairman Stone asked Mr. O'Reilly ifthe liquor license should be renewed. Mr. O'Reilly stated he thinks that the license should be renewed and a Show Cause Order issued. He suggested it is fundamentally unfair and unfair procedure. Mr. Emerson handed out exhibits and asked they be accepted into the record. Chairman Stone asked they be identified as different exhibits. 25 02-27-2001 Mr. Emerson stated he has labeled them numerically and there is a chart. Chairman Stone labeled them Prosecution 1 - 10 and number 11 and accepted them into the record. Mr. Emerson asked about the swearing of witnesses. Earlene Roach, Scott Hunter, Brian Turner, Rebecca Maas, Andrea Sanchez, Ralph Dockery, Theresa Firkins, Bridget Semple and Andrew Byrne were sworn to testify. The first witness was Earlene Roach. Mr. Emerson asked Ms. Roach to explain her job and review exhibits 1 through 5. He asked about the death of Carolyn Barton. Ms. Roach stated she had received a call from the Sheriff's Office then received a copy of the report by the Sheriff's Office. Mr. Emerson asked if in the Sheriff's report did it indicated Ms. Barton had been drinking at Champions. Ms. Roach answered yes. She then copied all pertinent information for the Board and inquired if they would like to hold a Show Cause Hearing. She stated the bar tab was included in the report. At that time the Board decided to issue a Show Cause Notice but it then turned into a renewal hearing as the license was up for renewal. The Notice of Hearing was mailed to the applicant on February 2, and Ralph Dockery signed for the certified mail. She also posted the premises on February 16, 2001. Mr. Emerson continued to question Ms. Roach on the exhibits. Ms. Roach stated exhibit 5 is the report from Chem- T ox Laboratories showing Ms. Barton's blood alcohol level of .216. She stated these are all true and correct copies of the originals. Mr. Emerson asked in the discussion with Mr. Dockery was he provided with copies of the Sheriff's report. She answered yes. Mr. O'Reilly asked about exhibits 9 & 10 and when those were given to Mr. Dockery. Ms. Roach stated she did not testify concerning exhibits 9 & 10. Mr. O'Reilly questioned the custody of the original documents. Ms. Roach stated she has the original is in the file, the original Notice of Hearing was mailed to the Dockery's, the original copy of the death certificate is in the file, the original Chem-Tox report, autopsy, Visa receipt and Sheriff's report, the Sheriff's Office holds. Mr. O'Reilly questioned the time of death. Ms. Roach stated there is no time of death. Mr. O'Reilly questioned if Ms. Roach had first hand knowledge of Ms. Barton having cannabis in her system. Ms. Roach answered yes. Mr. O'Reilly asked if she had been given copies of Mr. Turner's report previously. Ms. Roach answered no. Mr. 0 'Reilly asked if she had provided copies of the police report to Mr. Dockery. Ms. Roach answered yes. Mr. O'Reilly asked about the ownership of Monet's Tavern, Inc. Ms. Roach stated it is owned by Cathy Dockery. In 1994 Cathy Dockery owned 80% and Dolores Johnson owned 20%. It is now 100% owned by Cathy Dockery. Mr. O'Reilly asked about previous violations. Ms. Roach stated there have been several discussion over the years concerning over service but there is no motion that a violation was found. Mr. Emerson asked about exhibits 9 & 10 and if they were ever in her possession. Ms. Roach answered no. Mr. Emerson stated it is his understanding that exhibits 1 through 11 have been admitted into the record and do not need to be further tendered. 26 02-27-2001 Mr. O'Reilly stated he had not heard they were admitted into the record. He argued they were just copies. Mr. Emerson stated he has in fact laid the foundation for admittance into the record. He stated the Board has the option to admit them into the record if they feel they substantially represent what they are supposed to represent. Ms. Black stated they have heard evidence concerning the exhibits and can admit them for the record. Commissioner Gallagher asked Ms. Roach about the Chem-Tox report. He asked if that was faxed to her by Chem-Tox or someone else. Ms. Roach answered it was faxed to her from the Sheriff s Office. Mr. Emerson called Scott Hunter, Eagle County Sheriffs Office. He asked him to describe his involvement with the investigation on the death of Carolyn Barton. Mr. Hunter stated he was called in to assist with a body found in the river at the intersection of Highway 6 and Spruce Lane. When he arrived the west and east portion of the bridge was covered with crime scene tape. There was a bike on the eastern portion of the bridge and the body was on the east wall of the river in the rocks. That was the body of Carolyn Barton. He stated he removed two receipts and one lottery ticket and a wallet as well. Mr. Emerson asked if exhibit 6 was the receipts that Mr. Hunter took from the body. Mr. Hunter answered yes. Mr. Emerson asked if there was evidence to show how the accident occurred. Mr. Hunter stated the outer clothing had grass stains and she had facial injuries. Deputy Ruddy had stated when he was on scene he saw Carolyn's body in the river with the head facing west, feet facing east with the bicycle also in the river above her head facing east to west. Mr. Emerson stated the diagram shows travel from east to west. He asked how Mr. Hunter came to that conclusion. Mr. Hunter stated they looked at the position of the bicycle and took pictures. He stated they could see fresh breaks in the bushes and weeds. There were what appeared to be fresh tire marks in the grass. Mr. Emerson asked ifthe Sheriff s Office came to the conclusion that Ms. Barton was traveling west on the bike path and failed to make the turn to the left that is shown on the diagram. Mr. Hunter answered yes. Mr. Emerson asked if the bike path was lighted at night. Mr. Hunter stated it is not. Mr. Emerson asked ifMr. Hunter knew where Ms. Barton lived at the time of her death and would be consistent with the way Ms. Barton was traveling. Mr. Hunter stated she lived at Lake Creek Village and yes it was in the direction where she lived. It would be a direct line to Champions. Mr. Emerson asked if Mr. Hunter had interviewed the roommates, Andrea Sanchez and Rebecca Maas. He asked if they had made any statements to him as to whether or not Carolyn was on her way home from Champions. Mr. Hunter stated they related Ms. Barton left the bar between 11 :30 p.m. and 11 :45 p.m. and was on her bicycle. Ms. Barton had related to her roommates she was going straight home. Mr. Emerson asked about Ms. Barton's habits. Mr. Hunter stated her roommates had related when the deceased stated she was on her way her she went straight home. She would not go anywhere else. That was her normal character. Mr. Emerson asked if the roommates went to another bar that evening and if they had offered Ms. Barton a ride home. Mr. Hunter stated they had related they did. Mr. Emerson asked if there was anything that would lead the Sheriffs Office to believe that Ms. 27 02-27-2001 Barton went somewhere else that evening. Mr. Hunter stated not that he is aware of. Mr. Emerson directed his attention to exhibit 6, the items found on Ms. Barton's person. Mr. Hunter stated these receipts lead them to believe Ms. Barton was at the bar on the night of her death on October 9th and left around the time the roommates had related. He stated one of the receipts start the bar tab at 7: 11 p.m. and itemizes the amount of drinks she drank. Her name was on the bar tab. He stated the bar tab has 4 HH 220z dom, I HH 12 oz dom, 3 wells, 6 well tequila and 4 well bud and scotch. Mr. Emerson asked if the Sheriff s Office had received any information about Ms. Barton being in Champions earlier in the day. Mr. Hunter stated he took a photograph of Ms. Barton to the bar and spoke to the bartender, Marilyn Feldman. Ms. Feldman related Ms. Barton was in the bar earlier in the day, around 4:30 p.m. and had three 22 ounce domestic beers during happy hour. Mr. Emerson asked if Mr. Hunter knew where Carolyn went after leaving the bar at that time. Mr. Hunter stated it was his understanding that Ms. Barton went over to the grocery store and bought groceries. Mr. Emerson asked if Mr. Hunter knew what time Andrea and Rebecca arrived at the bar. Mr. Hunter stated they have stated they arrived approximately at 8:45 p.m. and related Ms. Barton was at the bar. Mr. Emerson asked ifthe roommates knew if Ms. Barton had been drinking. Mr. Hunter stated the roommates related she had been drinking there for awhile and had a good buzz. They drank with Ms. Barton for the remainder of the evening. They were all sharing rounds of drinks and related to him that Ms. Barton had around 3 tequila shots, between 3 and 4 other shots and a few beers. Mr. Emerson asked ifthis was between 8:45 p.m. and II :00 p.m. Mr. Hunter stated that was correct. Mr. Emerson asked if the roommates had described the bartender cutting off Ms. Barton. Mr. Hunter stated Carolyn Barton was getting loud and kind of obnoxious and the bartender on duty told her to quite down or she was going to be cut off. He stated that was about 10:30 p.m. Mr. Emerson asked if the bartender began serving Ms. Barton again. Mr. Hunter stated Ms. Barton calmed down and shortly thereafter the bartender started serving her again and served her another beer and another shot. Mr. Emerson asked if the roommates thought that Carolyn Barton was intoxicated that evening. Mr. Hunter stated he asked Ms. Maas on a level of 1 to 10, 10 being passed out, where would she estimate that Ms. Barton was on that scale. She replied she felt she was an 8. Ms. Sanchez had related she felt Ms. Barton was a 7. Mr. Emerson asked if the roommates had indicated that there were other people in the bar buying them drinks that evening. Mr. Hunter answered yes. There was a group of individuals with them. The roommates indicated they were having a good time. Mr. Emerson asked if the bartenders actions in cutting off Ms. Barton were because she was showing visible signs of intoxication. Mr. Hunter stated they did and that they could see that. Mr. Emerson asked if there was more than one bartender on duty serving these drinks. Mr. Hunter stated he believed there was. They had gotten drinks from other servers. Mr. Emerson stated there is a time at the bottom ofthe bar tab. Mr. Hunter stated there is and it reads 11 :05 p.m. Mr. Emerson stated there is a time at the top of the Visa receipt. Mr. Hunter stated that reads 7: 11 p.m. 28 02-27 -200 I Mr. Emerson asked about the tip shown on the Visa bill. Mr. Hunter stated it is a $28.00 tip on a bill of $50.50, which is more than a 50% tip. He stated the roommates stated they felt that was unusual because Ms. Barton was upset that night at the bartender for being cut off. They felt that was an unusual tip. She normally left a 15% tip because she is a frequent drinker of this establishment. Mr. Emerson stated there is another entry on the Visa receipt that indicates plus $8.00. Mr. Hunter stated that was on the receipt when they found it. He stated they were concerned as to why there was a difference in the tip amounts. He stated the same laws for driving under the influence for cars also applies to bicycles. Mr. Emerson asked about the blood alcohol level for operating a vehicle and being considered DUI. Mr. Hunter stated that level is .10. Mr. Emerson asked if Mr. Hunter had experience with individuals of varying levels of intoxication. Mr. Hunter stated yes he does. He stated Ms. Barton's alcohol level was .216. Mr. Emerson asked about death and the blood alcohol level changing. Mr. Hunter stated the BAC does not change at the time of death as when the body is alive it is oxidizing the alcohol in the body. When the body dies it no longer does that. Mr. Emerson asked ifit is his belief that the BAC shown on the report is Ms. Barton's BAC at the time of her death. Mr. Hunter answered yes. Mr. Emerson asked how long marijuana can stay in a person's system. Mr. Hunter stated in his experience it can last up to 30 days. Mr. Emerson asked if Mr. Hunter considers a .216 a high blood alcohol level. Mr. Hunter answered yes. Mr. Emerson asked ifthat BAC was consistent with the amount of alcohol being drunk as reported by her roommates and shown on the bar tab. Mr. Hunter answered yes. Mr. Emerson questioned if the Sheriff's Office has been involved in calls and in responding to Champions Grill. Mr. Hunter answered yes. He related they have had various calls, assaults, disturbances, walk through's, business checks. Exhibit 7 is a record of all the involvements the Sheriff's Office has had with this establishment. He explained the codes shown on the report. He spoke to two incidents shown on the report, a harassment call and a third degree assault. He spoke to an intoxicated individual call he received for a gentleman who was being served in Champions, a gentleman urinating on the floor in Champions and a gentleman passed out in the bathroom at Champions. All individuals were extremely intoxicated. He continued to discuss the incident report. Mr. Emerson asked Mr. Hunter to describe happenings at the bar. Mr. Hunter stated it is his opinion that this bar is a nuisance. They get called continuously to go there. They have to focus their patrol specifically around that bar. Mr. Emerson asked, in his opinion, has the bar been operated in a manner that adversely affects the health, safety and welfare of the immediate neighborhood in which the establishment is located. Mr. Hunter stated in his opinion, yes. Mr. Emerson asked if that is because there is a continuing pattern of fights, violent activity or disorderly conduct. Mr. Hunter answered yes. Mr. O'Reilly asked Mr. Hunter how long he had been a law enforcement officer. Mr. Hunter stated he has been with the Sheriff's Office for four years, Aurora Probation for a year before that, and in California he worked for five years with the juvenile crises center. 29 02-27-2001 Mr. O'Reilly asked about law enforcement training. Mr. Hunter stated he was Post certified through the Denver Business College, which is the Peace Officers training. He stated he believes it is the same as CLET A certification. Mr. O'Reilly asked about alcohol training. Mr. Hunter stated he was certified in DUI Mastagmus, which relates to detecting alcohol in persons. Mr. O'Reilly asked about training in the metabolizing of the alcohol in the blood system. Mr. Hunter stated he was trained in the academy training and through his experiences in working with coroners and being present during many autopsies. Mr. O'Reilly asked about items other than clothing that were found on Ms. Barton. Mr. Hunter stated a wallet and he believes some drug paraphernalia but the coroner would have a complete list. Mr. O'Reilly asked when the body was discovered. Mr. Hunter stated he arrived at 11 :30 a.m. and Deputy Ruddy was there around 10:30 a.m. on October 10, 2000. Mr. O'Reilly asked if he had obtained information about where Carolyn Barton was after 11 :30 p.m. Mr. Hunter stated they could not determine if she went anywhere. Mr. O'Reilly stated for all he knows she could have been in a bar until 2:30 a.m. Mr. Hunter stated she could have been. Mr. O'Reilly asked about the time the roommates called exactly. Mr. Hunter stated he does not know. Mr. O'Reilly asked about the time they called the Sheriffs Department. Mr. Hunter stated he believes it was around 3 :00 a.m. Mr. O'Reilly asked if when the roommates arrived home if they were concerned with Carolyn's safety . Mr. Hunter answered yes. Mr. O'Reilly questioned one of the bartenders indicating Carolyn drank two large beers. Mr. Hunter stated that was correct. Mr. O'Reilly asked if those were red beers. Mr. Hunter stated that was correct. He is not sure what a red beer is but believes the bartender related it is a mixture of tomato juice and beer. Mr. O'Reilly asked if that was the case then the beer would contain less alcohol. If you put tomato juice in you would have less alcohol. Mr. Hunter stated that was correct. Mr. O'Reilly asked ifMr. Hunter had interviewed the bartender on duty. Mr. Hunter stated no as she had obtained a lawyer and he was not allowed to speak with her. Mr. O'Reilly asked about the roommate's comments concerning Ms. Barton being a 7 on the scale. Mr. Hunter stated they try to gage it on a level. He stated it has been his experience that ifthe person is not intoxicated people tend to use 2 and 3 and the more intoxicated they get the higher number they use. Mr. O'Reilly asked was it not true that Carolyn's roommates say that she was not cut off. Mr. Hunter stated she was threatened to be cut off. Mr. O'Reilly asked why she was threatened to be cut off. Mr. Hunter stated because she was being loud. Mr. O'Reilly asked how many servers were serving the group. Mr. Hunter stated it was the bartender and at least one other server. Mr. O'Reilly asked about what Carolyn did after walking out the door of Champions, according 30 02-27-2001 to the roommates. Mr. Hunter stated they talked to Carolyn about going to Bob's Place in Avon and she did not want to go because she had to ride her bike. They told her she could put her bike in one of their trucks or cars and they would give her a ride. She told them no because she was going home and wanted to get her groceries into her house. Mr. O'Reilly asked ifhe had been told she rode her bike around the parking lot several times while balancing her groceries. Mr. Hunter answered not to himself. Mr. O'Reilly asked about the $28.00 tip and if he had asked anyone at Champions about the credit card receipt. Mr. Hunter stated again, he was told he could not speak with Theresa as she had obtained an Attorney. Mr. O'Reilly asked if he would be surprised to learn that $8.00 of that was for cigarettes. Mr. Hunter stated no, that is why he wanted to talk to her. Mr. O'Reilly asked about the roommates relating that Carolyn's average tip was about 15%. Mr. Hunter stated they related to him that the average for Carolyn was about 15%. Mr. O'Reilly asked ifhe would be surprised to see credit card receipts showing Carolyn's tips of an average of about 60%. He also asked if Mr. Hunter could compare signatures. Mr. Hunter stated he would not be surprised. He stated he is not a signature expert. Mr. O'Reilly asked about the BAC level not metabolizing. Mr. Hunter stated this comes from experience and from what he has been told by coroners in past autopsies. Mr. O'Reilly spoke to exhibits number 7 and 8. He asked where exhibit 7, the Sheriffs report, comes from. Mr. Hunter stated he pulled it off the computer system at the Sheriffs Office. Mr. O'Reilly asked how many times Champions initiated contact with the Sheriffs Office. Mr. Hunter stated he does not know the answer to that but does know that Champions calls frequently. Mr. O'Reilly asked how many times Mr. Hunter has been in Champions. Mr. Hunter stated hundreds. Mr. O'Reilly stated is it not true that Mr. Hunter does not know if these reports are problems. Mr. Hunter stated they are calls for service. He stated for further information you would have to look further at the Sheriff s reports. Mr. O'Reilly asked ifMr. Hunter had personally seen any over service of alcohol at Champions. Mr. Hunter responded he has seen intoxicated people in the bar but has not seen a bartender hand that person a drink. Mr. O'Reilly asked Mr. Hunter on exhibit 7, page 7-8, would he please explain the incident. Mr. Hunter explained the report and the codes used on the report. Commissioner Gallagher asked about the scene being the Eagle River. Did Mr. Hunter mean to say Lake Creek. Mr. Hunter answered yes. Commissioner Gallagher asked if after speaking to the roommates it lead him to an understanding about how long it was between the threat of being cut off and the agreement to re-serve Ms. Barton. Mr. Hunter stated it was several minutes later. Mr. Emerson called Rebecca Maas to testify. He asked her how long she had known Carolyn Barton. Ms. Maas stated she met her around Christmas or New Years the year before, approximately one year. 31 02-27-2001 Mr. Emerson asked how long they had been roommates. Ms. Maas stated since the middle of August 2000. Mr. Emerson asked if Ms. Maas was with Carolyn Barton on the evening of October 9,2000. Ms. Maas answered yes. Mr. Emerson asked if she and Carolyn Barton went out together often prior to that evening. Did they drink together and was Ms. Maas aware of her habits. Ms. Maas answered yes. Mr. Emerson asked what time Ms. Maas arrived at Champions that evening. Ms. Maas answered at approximately 8:45 p.m. Mr. Emerson asked if Carolyn was there already. Ms. Maas answered yes. She stated Ms. Barton left the house and went into town to look for another job and grab some groceries. Mr. Emerson asked if it was obvious that Carolyn had been drinking when Ms. Maas arrived at the bar. Ms. Maas answered yes. Mr. Emerson asked how she knew that. Ms. Maas answered the way she talked, going on about things. She was constantly messing with her hair. She was sitting at the bar and related she was f-(expletive deleted) up but they continued to drink Mr. Emerson asked if Ms. Maas took that to mean she was intoxicated. Ms. Maas stated yes but she had already observed she was drunk. Mr. Emerson asked if other people at the bar were buying them drinks. Ms. Maas answered yes. Mr. Emerson asked what Carolyn was drinking at that time. Ms. Maas stated she had an assortment. She stated she had some buttery nipples, rum and sevens and some other stuff. Mr. Emerson asked how many bartenders were on duty that evening. Ms. Maas stated the bartender was Theresa and there was a cocktail waitress. Mr. Emerson asked if Ms. Maas had bought drinks for Carolyn that evening. Ms. Maas answered yes. Mr. Emerson stated she had related to the State Liquor Enforcement Officer that they were partying hard that evening. Ms. Maas stated they were doing that pretty often at that time. It was shot after shot. Mr. Emerson stated based on the amount of alcohol Carolyn was drinking and that Ms. Maas observed her drinking, should she have been riding a bicycle that evening. Ms. Maas stated probably not. She stated Carolyn could hold her alcohol very well but knowing how much she drank she was lucky to be walking. Somebody who is not accustomed to drinking as much as Carolyn did would have been on the floor passed out. Mr. Emerson stated Ms. Maas told Mr. Turner that during the course of the evening she began to show more and more signs of intoxication. Is that correct. Ms. Maas stated that was correct. She stated she was red faced, messing with her hair, ran into things a little. Mr. Emerson asked as she got progressively louder and louder the bartender either cut her off or threatened to cut her off. Ms. Maas stated that was correct. Another individual had come into the bar and purchased a beer and Theresa was eighty-sixing him and Carolyn got into it. Mr. Emerson asked what time Ms. Barton got cut off? Ms. Maas stated it was approximately 10:00 p.m. or 10:30 p.m., she is not sure. Mr. Emerson asked if that was after Carolyn was already showing signs of intoxication, and after 32 02-27-2001 that time the bartender served her additional alcohol. Ms. Maas stated that was correct. Mr. Emerson stated Ms. Maas told Mr. Turner that the bartender should have known that Carolyn was intoxicated because of the visible signs of intoxication and the number of drinks she had been served that night. Ms. Maas answered yes mostly based on how much she was served. Mr. Emerson asked, in her experience, is it a common practice that Champions serves patrons enough alcohol that they become intoxicated. Ms. Maas stated as long as you behave and handle your alcohol, she has never been cut off. She could drink as much as she wanted. She has not seen anyone get cut off unless they were not controlling themselves. Mr. Emerson asked if Ms. Maas had been served to the point where she was obviously intoxicated and continued to serve her as long as she was not a behavior problem. Ms. Maas answered yes. Mr. Emerson asked if she had seen the same be true of other patrons. Ms. Maas answered yes. Mr. Emerson asked if she had seen other patrons get served enough alcohol that they were clearly unsafe to drive a motor vehicle. Ms. Maas answered yes. Mr. Emerson asked is she has seen patrons in the bar served so much alcohol that they could not stand up or keep their head off the table. Ms. Maas stated she has seen a few stumblers. Mr. Emerson asked what time Carolyn left the bar. Ms. Maas stated around 11 :30 p.m. to 11:45 p.m. She stated they went outside about 11 :30 p.m. and messed around for awhile, which is where they asked if she wanted to go to another bar with them. She did not want to. She had already asked other friends for a ride home and they had said no so she was kinda of sad about it. Mr. Emerson asked if there was anything about this incident that would lead Ms. Maas to believe Carolyn went somewhere else to drink that night. Ms. Maas answered no. Mr. Emerson asked if there was anything else about this incident that would lead her to believe she did anything else but try to ride her bike home that night. Ms. Maas answered no. Mr. Emerson asked if Ms. Maas knew where the bike accident occurred. Ms. Maas answered yes. Mr. Emerson asked if that was a direct route to ride home. Ms. Maas answered yes. Mr. Emerson asked if Ms. Barton was unable to operate her bicycle that evening. Ms. Maas stated it was a combination of alcohol, there are no lights and the path makes a turn. But yes alcohol had something to do with it. She stated she does not believe she was even on the bike path but rather along side the path. Mr. Emerson asked ifthat would be consistent with her being drunk and riding off the bike path. Ms. Maas answered yes. Commissioner Gallagher asked Ms. Black to advise him about asking incriminating questions regarding their activity on that night. Ms. Black stated they may invoke the 5th amendment ifthey so choose. Mr. Emerson asked if Ms. Maas had any information to lead her to believe that Carolyn had been using marijuana on the night in question. Ms. Maas stated she did not see her smoke or do anything other than drink that night. 33 02-27-2001 Mr. Emerson asked is she was familiar with Carolyn's habits and did she use marijuana frequently. Ms. Maas stated not frequently but she did smoke on occasion. Mr. Emerson asked if she preferred alcohol over marijuana. Ms. Maas answered yes. Mr. O'Reilly asked if she thought Carolyn had too much to drink why would she offer to take her to another bar. Ms. Maas stated it was not that she thought she had too much to drink, she had a lot to drink. She drank frequently and was a grown woman. You could not tell her what to do. She made her own choices. Mr. O'Reilly asked if she expected Carolyn to be served in another bar. Ms. Maas answered yes. She did not expect to happen what happened. Mr. O'Reilly asked if Ms. Maas thought another bartender would not think she was intoxicated. Ms. Maas stated she turned 21 in August and started going to Champions. She did not know that you were not supposed to get drunk at bars. She had never been cut off before that. After this incident she went to a bar and got cut off after three shots and she asked why. The bartender told her it was the law. Mr. O'Reilly asked if Ms. Maas knew if Carolyn had ever been cut off at Champions. Ms. Maas stated she did not believe Carolyn had ever been cut off. She stated they usually closed it down when they were there. Mr. O'Reilly asked about what time Ms. Maas got home on October 9,2000. Ms. Maas stated it was a little after 2:00 a.m. Mr. O'Reilly stated he assumed she noticed right away that Ms. Barton was not home. Ms. Maas stated that was correct. Mr. O'Reilly asked what she did at that time. Ms. Maas stated they talked about it and were trying to think of a place she might have gone or maybe someone had seen her come home. They waited a little while but they had a feeling that something was not right. She should have been there, something was not right. They waited a little while and called the Sheriff and the hospital to see if anyone knew anything. They stayed up most of the morning waiting for her to come home. She related they called again at 4:00 a.m. or 5:00 a.m. They were going to go looking for her but it was dark and they would not be able to see her. Mr. O'Reilly asked what Ms. Barton did immediately after leaving Champions. Ms. Maas stated they were outside deciding what they were all going to do, maybe go to another bar. They decided to go to another bar and asked Carolyn. She did not want to go. They asked her if she wanted a ride. She stated she did not. She related she did not want to go out. She then rode her bike around in a circle about three times and then took off. Mr. O'Reilly asked about the groceries. Ms. Maas stated they were tied on the back of the bike. Mr. O'Reilly stated she then rode around Champions parking lot about three times. He asked if she had any trouble doing that. Ms. Maas stated not that she saw but she was not really watching her. She did not fall down. She could hold her alcohol pretty good. Mr. O'Reilly asked if she was aware of what time she was served her last drink at Champions. Ms. Maas stated not exactly. The bartender was calling last call at about 11 :00 p.m. but everyone wanted another drink so it was about 11: 15 p.m. Mr. O'Reilly asked when Ms. Maas walked into the bar, what was her immediate assessment of Ms. Barton's condition. Ms. Maas stated she realized she had been drinking for awhile. Mr. O'Reilly asked if she had suggested anytime during the evening suggest that she quit 34 02-27-2001 drinking. Ms. Maas answered no. Mr. O'Reilly asked if she has suggested to any employee that she be cut off. Ms. Maas answered no. Mr. O'Reilly asked if Ms. Maas thought that she should be cut off. Ms. Maas stated probably not. She was a grown woman and you could not tell her what to do. She would just laugh at you. Mr. O'Reilly stated but she was so grown up that you would have taken her to another bar and expected them to serve her. Ms. Maas stated yes. Mr. O'Reilly asked if Ms. Maas had bought her any drinks. Ms. Maas answered yes. Mr. O'Reilly stated except with respect to examining her credit card receipt, you do not know what she had to drink other than that. Ms. Maas answered no. Once she got there she hung out with her for awhile but there was a lot of their friends there and she was with all of them. Mr. O'Reilly asked if she had information that Carolyn did not drink all the drinks she ordered, that she could have bought drinks for other people. Ms. Maas stated she would assume so. Mr. O'Reilly asked if Ms. Maas had witnessed Ms. Barton buying a round and not drinking them. Ms. Maas stated she did not know. Mr. O'Reilly asked about Ms. Barton being able to hold her alcohol very well. Ms. Maas stated she could drink a lot. Mr. Emerson objected as counsel is cutting the witness off before she is finishing her answers. Ms. Maas stated for someone who did not drink as much they would be passed out if they drank the amount of alcohol that Ms. Barton did. Mr. O'Reilly asked would it be fair to say she could drink a lot without becoming visibly intoxicated. Ms. Maas stated if you did not know her well, yes. Mr. O'Reilly asked if Ms. Barton was known for being loud and some might characterize her as obnoxious. Ms. Maas stated when she drinks yes. When she was sober she was a lot quieter. When she got to drinking she got loud. Mr. O'Reilly asked if Ms. Barton had a drivers license. Ms. Maas answered she did not. Mr. O'Reilly asked if she knew why she did not have one. Ms. Maas stated she believes it was from a DUI. Mr. O'Reilly asked if she had any information on what Ms. Barton did on October 9, 2000 from about 11 :30 p.m. to 10:30 a.m. Ms. Maas stated that was correct. Mr. O'Reilly stated she could have gone to another bar. Ms. Maas stated she could have. Mr. O'Reilly asked about the area near where the bicycle was found it is kind of a dangerous spot. Ms. Maas stated that was correct. Mr. O'Reilly asked ifit would be dangerous whether you were drinking or not. Ms. Maas answered yes. She stated she has had other people tell her after this incident that they were riding their bikes home and have wrecked. They stopped themselves before they went over the edge. 35 02-27-2001 Mr. Emerson asked on October 9,2000, she did not know that it was illegal for a licensed bar to continue to serve alcohol to a visibly intoxicated person. Ms. Maas stated that was correct. She stated she assumed as long as you were not driving or causing a scene and being loud, they could continue to serve alcohol. Mr. Emerson asked knowing what she knows now and knowing how intoxicated Ms. Barton was that night, would she have expected another bartender in another bar to have served her. Ms. Maas stated if she would have been there long enough for them to see how she was she does not know if they would have served her or not. Some bars are more lenient than others. Mr. Emerson asked if Ms. Barton had gone to another bar and that bartender had seen the same kinds of intoxication that were visible in Champions that night, should that bartender have served her more alcohol. Mr. Maas answered that was correct. Mr. Emerson asked if it was the bartenders job to watch the people who are drinking and how they are behaving. Ms. Maas stated that is what she has heard. Mr. Emerson stated is that because patrons tend to loose their judgement when they have had too much to drink. Ms. Maas stated that was correct. Mr. Emerson called Brian Turner, State Liquor Enforcement Officer, to testify. Mr. Turner stated he interviewed Rebecca Maas, Andrea Sanchez and Bridget Semple. Mr. Emerson asked if he had been provided with copies of the interviews from the Sheriff's Office. Mr. Turner stated yes. He stated he interviewed Rebecca Maas on January 11, 2001. She related she knew Ms. Barton from LaJuanta and they were now roommates. She had related she did not go to the bar with Ms. Barton as she was already there. She related she arrived at the bar at approximately 8:30 p.m. She stated she did remember telling the Sheriff's Office that Ms. Barton was intoxicated, when she entered the bar she knew Ms. Barton was f-(expletive deleted) up and was loud, red faced and by the way she was talking she knew she was in her own world. She added she was feeling no pain and Ms. Barton had related she was f-----( expletive deleted) up. He stated he had asked her if it was a fair statement to say when Ms. Maas entered the bar she knew Ms. Barton was drunk. Ms. Maas had answered with a yes. He stated they talked a little bit about whether it was common for Ms. Barton to spend $50.00 per night in the bar. Ms. Maas indicated it was and sometimes it was $100.00. She did not know how much Ms. Barton had to drink because everybody was buying drinks for everyone and they were partying heavy. He stated Ms. Maas reported she had 6 shots. He had asked Ms. Maas how often Ms. Barton drank and Ms. Maas had replied about every night and approximately once a week she would drink pretty heavy. He had asked if anyone in the bar had asked about Ms. Barton being intoxicated and Ms. Maas related everyone in the bar knew that Ms. Barton was messed up but no one commented about it. He asked if any of the employees had cut Ms. Barton off at any time and she replied Ms. Barton had gotten in an argument with the bartender, Theresa Firkins, about Ms. Barton's friend who tried to bring a beer in the bar. Ms. Firkins then cut her off and about 15 minutes later Ms. Barton apologized and Ms. Firkins begin serving her again. Ms. Maas added that Ms. Firkins said she never cut Ms. Barton off, but she had. Then he spoke about the scale of I to 10 and asked Ms. Maas if she recalled that discussion. Ms. Maas replied yes and related Ms. Barton was wiping her face a lot, tripped over a stool and her balance was off a little. She further added Ms. Barton was not driving. Mr. Emerson asked if Mr. Turner had asked if Ms. Maas felt the bartender should have cut Ms. Barton off from further service. Mr. Turner stated he did and Ms. Maas replied yes on the number of drinks she had served Ms. Barton and added she was not aware that bars were supposed to stop serving if the individual was not driving. He stated Ms. Maas added at the end of the interview that one time one of her male friends was 36 02-27-2001 so messed up he could barely walk and Champions allowed him to drive home. He believes this bothered her because she was starting to tear a little. Mr. Emerson referred to exhibit 8. Mr. Turner stated exhibit 8 is a chart the State created to help people make decisions on there intoxication and sobriety level. It is a service guide and is on the Internet and available to any licensee or law enforcement agency. He reviewed the indications of intoxication shown on the chart. The first one being loud, altered speech, slurring, flushed face, general clumsiness, poor balance, ordering multiple drinks, change in motion. Mr. Emerson stated it is fair to say that the information he received from various sources including his own interviews, numerous signs of intoxication were present that night. Mr. Turner stated more than one item on the chart was present. Mr. Emerson asked about an interview with Andrea Sanchez. Mr. Turner stated he did interview Ms. Sanchez. Mr. Emerson asked if it was fair to say that Ms. Sanchez did not describe Ms. Barton being quite as intoxicated as Ms. Maas did. Mr. Turner stated that was correct. Mr. Emerson asked if she had indicated that Ms. Barton had quite a bite to drink. Mr. Turner answered yes and stated Ms. Sanchez had related when they got to the bar Carolyn was Carolyn times ten. He stated he tried to ask her what that meant. Ms. Sanchez replied that she was being loud but could hold her alcohol. Mr. Emerson asked if he had interviewed Bridget Semple. Mr. Turner stated he had. He related Ms. Semple stated she was watching TV and not paying attention to the customers. He stated he also asked her if the owner played an active role in the licensed premise and Ms. Semple stated about the only time she saw her was on payday every two weeks. He stated he asked if Ms. Barton had a change during the evening. Ms. Semple related she got progressively louder. Mr. Emerson asked if it is the responsibility of the bartender to keep in mind how much alcohol a patron has had to drink and over what period of time. Mr. Turner answered yes, they are in control ofthe bar. Mr. Emerson asked if he had an opportunity to review the bar tab that shows the drinks that Ms. Barton purchased which shows the equivalent of 13 drinks and 9 beers. Mr. Turner answered yes. Mr. Emerson asked if that confirmed with the interviews conducted with Ms. Maas and Ms. Sanchez that Ms. Barton consumed a lot and purchased a lot. Mr. Turner answered yes. Mr. Emerson asked ifMr. Turner knew the blood alcohol level at which a person is presumed to be intoxicated under Colorado law. Mr. Turner stated it is .10 Mr. Emerson asked if he knew what the blood alcohol level in this case was. Mr. Turner stated it was .216, over twice the legal limit. Mr. Emerson asked from his experience as a liquor investigator, was it likely that someone with a blood alcohol level of .216 would not be showing clear signs of intoxication. Mr. Turner stated everyone is a little different. With the blood alcohol level and testimony from the witnesses yes. It is his beliefthat over service did occur. Mr. Emerson asked in his experience, why would a bartender cut off service to a patron. Mr. Turner responded because the individual is starting to show signs of intoxication. Mr. Emerson asked if this Board finds that Carolyn Barton was served alcohol after showing signs of visible intoxication, would that be a violation of the Liquor Code. Mr. Turner answered yes. 37 02-27-2001 Mr. Emerson asked if it would also be a violation of the rules promulgated under the Code. Mr. Turner answered yes. Mr. Emerson asked if such a violation were found would that be grounds to deny the renewal of the liquor license. Mr. Turner answered yes. Mr. Emerson asked if this Board makes an evidentiary finding under C.R.S. 12-47-103, (9) (a) that this bar has been operated in a manner that adversely affects public health, safety and welfare of the immediate neighborhood, would that be grounds to deny this application. Mr. Turner answered yes. Mr. Emerson asked if that would be true if the Board made a finding as to Regulation 47-900 which requires the licensee and its employees to conduct the licensed premise in a decent and orderly manner and not allow the licensed premises to over serve or to serve intoxicated persons nor to permit profanity, rowdiness, undue noise and other disturbances or activities offensive to the average citizen or to the residents of the neighborhood in which the licensed premises are located. Mr. Turner answered yes. Mr. Emerson asked if in considering whether or not there was a violation of the Statutes and Regulations, what factors are normally considered by the licensing board. Mr. Turner stated if there was a violation and what should the penalty be. Other violations are also covered in the regulation, fights, disorderly's. Mr. Emerson asked ifhe has a term he uses to describe a bar such as this. Mr. Turner stated after the testimony of the Sheriffs Office, this is a problem bar and needs attention. Mr. Emerson asked if Mr. Turner had an opportunity to speak with Mr. Dockery. Mr. Turner stated he had informed Mr. Dockery he was conducting an investigation and would be doing some interviews. Mr. Dockery had stated he was possibly in the process of selling the bar. They also discussed the possibility of surrender of the license. Mr. Dockery had advised he did not want to surrender the license. Mr. O'Reilly asked ifMr. Turner had prepared any reports. Mr. Turner stated he did. Mr. O'Reilly asked if those were the reports labeled exhibits 9 & 10. Mr. Turner answered yes they were. Mr. O'Reilly asked if there were other reports he had prepared. Mr. Turner stated there was a report with an off duty bartender. He stated the way he takes his reports is he pre-typed out questions and writes the answers down and reviews them with the witness and signs the review. Mr. O'Reilly asked ifMr. Turner had prepared three reports. Mr. Turner stated that was correct. Mr. O'Reilly asked who Mr. Turner delivered his reports to. Mr. Turner stated he faxed them to Mr. Emerson. Mr. O'Reilly asked ifhe knew how they went to the license holder. Mr. Turner stated he did not know how the discovery took place. Mr. O'Reilly asked if Mr. Turner had any information concerning the exact time of Ms. Barton's death. Mr. Turner stated he did not. Mr. O'Reilly asked ifhe had any information about Mr. Barton drinking after she left Champions. Mr. Turner stated he does not. Mr. O'Reilly asked ifhe is aware that the signs of intoxication he referred to earlier is posted at the end of the bar at Champions. 38 02-27-2001 Mr. Turner stated he is not. Mr. O'Reilly asked based on his experience on evaluating people who have been drinking, what happens when a person is a habitual heavy drinker. Don't they compensate better for their intoxication. Mr. Turner stated a habitual drinker is someone who is labeled by the Court. He has personally not seen one. Mr. O'Reilly stated they have testimony that Ms. Barton drank a great deal. Would not a person like that be better able to hide the signs of visible intoxication. Mr. Turner answered yes. Mr. O'Reilly asked in light of his investigation Mr. Turner does not know what Ms. Barton had to drink that night. Mr. Turner stated that was correct, he was not in the bar. Mr. O'Reilly asked ifhe gave Mr. Turner a certain size and a number of drinks that someone drank would he be able to tell him what that person's BAC would be. Mr. Turner answered no. There is no scientific way to do that. In his training there is food involved and size of a person it is very hard to say. Mr. O'Reilly stated it is fair to say then that a bartender would also not know. Mr. Turner stated a bartender would not know by the size of a person if they could handle six or ten drinks Mr. O'Reilly asked when Mr. Turner forwarded his reports to Eagle County. Mr. Turner stated again, he forwarded his reports to Bob Emerson, the attorney handling the case. Mr. O'Reilly stated he then never forwarded them to Eagle County. Mr. Turner stated he does not recall if he ever gave them to Ms. Roach but to the best of his knowledge he did not. Chairman Stone asked how long has Mr. Turner been involved in these type investigations and how many times has he testified. Mr. Turner stated at the administrative level he has testified approximately 15 times and at the criminal level approximately 7 times. Chairman Stone asked if he was familiar with different liquor licensing authorities and the different decisions they have made in situations that mayor may not be similar to this case. Mr. Turner stated to an extent. Chairman Stone asked had he heard of any liquor licenses being revoked or not being renewed because of over serving of alcohol. Mr. Turner answered yes. Chairman Stone asked if it happens frequently or infrequently. Mr. Turner answered it depends. He stated they have a basic guideline at the State level that they go by. He stated when there is aggravation involved it changes immediately_ Such as a death occurring. He stated he's been involved where the license has been revoked and where they have issued 15 day suspensions and where they settled out of Court by paying a fine and having days held in abeyance. Chairman Stone stated so it is not unheard of. Mr. Turner answered no. Mr. Emerson called Bruce Campbell to testify. Mr. Campbell stated he was involved with this case as Deputy Coroner and was at the scene. He stated he arrived at the scene at approximately 11 :30 a.m. on the morning of October 10,2000. There were several law enforcement agencies on site. He observed Ms. Barton's body in the river and on the bank of the river. The bike was also in the river. Ms. Barton had received medical attention from paramedics previously. After speaking with law enforcement officers at the scene it was determined at that point it had been a bicycle accident. He pronounced Ms. Barton dead at noon on October 10,2000. Mr. Emerson asked if that was part of his job to pronounce someone dead. Mr. Campbell answered yes. 39 02-27-2001 Mr. Emerson asked if Mr. Campbell had reviewed Sheriffs reports and information about what Ms. Barton had been doing that evening. Mr. Campbell answered yes he did. Mr. Emerson asked if that included witness statements that indicated Ms. Barton was going home from Champions Bar. Mr. Campbell answered yes. Mr. Emerson asked if at the place where the death occurred would that be in a direct line with Champions Bar to the place of her residence. Mr. Campbell stated it would. Mr. Emerson asked ifhe had an opportunity to review all information concerning this accident, including statements from those on the scene and reports after the investigation was conducted. Mr. Campbell answered that was correct. Mr. Emerson asked if he had prepared an autopsy report and indicated a time of death. Mr. Campbell stated he did prepare a report but did not indicate a time of death. He stated at that point it was undetermined exactly the time Ms. Barton died. Mr. Emerson asked if felt it was his job to make a determination on the time of death. Mr. Campbell answered no. Mr. Emerson asked ifhe attempted to formulate an opinion as to a time of death. Mr. Campbell stated he did and he believes Ms. Barton died between 11 :30 p.m. and 12:00 a.m. Mr. Emerson asked what that opinion was based on. Mr. Campbell stated he based his opinion on the injuries sustained as a result of the fall into the river, interviews conducted and discussions with the Sheriffs Officers on scene. Mr. Emerson asked about the information obtained from the Sheriffs Officers from the interviews. Mr. Campbell stated Ms. Barton was last seen and had left the bar shortly after 11 :00 p.m. and by all accounts had ridden her bicycle west down Highway 6 towards home at the Lake Creek Apartments. Mr. Emerson asked Mr. Campbell to describe the physical injuries. Mr. Campbell stated Ms. Barton had sustained severe head injuries as well as internal injuries to her liver, spleen, fractured ribs. He had determined she had probably been knocked unconscious and as a result had drowned. Mr. Emerson stated the information Mr. Campbell had led him to conclude that she had not been laying on the ground alive for some extended period oftime. Mr. Campbell answered that was correct. Mr. Emerson asked if he had any information that Ms. Barton had gone to another liquor establishment and consumed liquor anywhere else or had not been heading home from the bar that evenmg. Mr. Campbell stated no he did not have that information. Mr. Emerson asked if the information he had was the opposite, that she left the bar and was heading home as stated by various witnesses. Mr. Campbell stated that was correct. Mr. Emerson asked about the BAC and what happens to it after the time of death. Mr. Campbell stated that would be left up to a pathologist. Mr. O'Reilly asked about Mr. Campbell's qualifications. Mr. Campbell stated he has been a deputy coroner for approximately 20 months, he has an AA degree in criminology and has been an investigator for 31 years. Mr. O'Reilly asked about the duties ofthe deputy coroner. Mr. Campbell stated the duties are pronouncement of death, investigation to locate and notify the next of kin and take possession of the body. Mr. O'Reilly stated he has not been trained to determine time of death, was that correct. 40 02-27-2001 Mr. Campbell stated that was correct. Mr. O'Reilly asked what the basis was for time of death. He asked if it was primarily the information given by third parties. Mr. Campbell stated that would be the Sheriff's Office and they collaborated as they continued to come m. Mr. O'Reilly asked if he had been told that Ms. Barton had been seen at 11 :30 p.m. heading east on the bike path or on Highway 6, would that have left him without any basis for time of death. Mr. Campbell stated he would have continued the investigation. He stated he is not as concerned with the time of death as with the cause of death. Mr. O'Reilly stated with respect to his determination as to the time of death, having testified that he has no particular training, it is pure speculation isn't it. Mr. Campbell stated he would not say speculation. It is based on an investigation and any facts they gathered during that investigation. Mr. O'Reilly stated without the information of what time the decedent left the bar and which way she was headed he would have had no basis for his conclusion. Mr. Campbell stated that was correct. Mr. O'Reilly stated so his conclusion is based solely on that conclusion. Mr. Campbell stated that was correct. Mr. O'Reilly asked ifhe had any information as to where Ms. Barton may have been between 11 :30 p.m. and 10:30 a.m. Mr. Campbell stated from what he could tell she had fallen to her death shortly after leaving the bar. Mr. O'Reilly stated that is just a conclusion. Mr. Campbell stated that is correct. Mr. O'Reilly stated it is his conclusion based on statements from others. Mr. Campbell answered yes. Ms. Emerson asked in addition to the statements that it was Ms. Barton's intent to go straight home from Champions Bar, the fact that the direction of her travel is consistent with that intent and the fact that he physically observed that her injuries were consistent with a quick death and not a lingering situation where she remained alive, are all of those factors that he considers in coming to his conclusion as to time of death. Mr. Campbell stated that was correct. Mr. Emerson stated it was based on his discussion with the Sheriff's Officers who were on the scene and those who investigated, and the submitted reports. Mr. Campbell stated that was correct. Mr. O'Reilly asked ifMr. Campbell knew if there were any bars between where she was found and Champions. Mr. Campbell stated there were. Mr. O'Reilly asked ifthere is any reason to think she did not go to one ofthose. Mr. Campbell answered no. Mr. O'Reilly asked if he had information as to whether alcohol played a role in this death. Mr. Campbell stated that was not his concern. Mr. Emerson asked if it was clear that the cause of the accident was a bicycle accident. Mr. Campbell answered yes. Mr. Emerson asked if he was familiar with the blood alcohol level of Ms. Barton at the time of her death. Mr. Campbell answered yes it was .216. Mr. Emerson asked if it was consistent with a person of a blood alcohol level of .216 would have difficulty operating a bicycle. 41 02-27-2001 Mr. Campbell answered yes. Mr. Emerson asked if it was possible that alcohol contributed to her death. Mr. Campbell answered yes. Mr. O'Reilly asked ifMr. Campbell can determine BAC levels if given the time, size of a person and the amount of alcohol consumed. Mr. Campbell stated he could not. Mr. O'Reilly called Bridget Semple to testify. Ms. Semple stated she is a bartender and waitress at Champions. Mr. O'Reilly asked if she had completed TIPS certification. Ms. Semple stated she had completed the course three times. Mr. O'Reilly asked what does that entail. Ms. Semple stated how to serve alcohol responsibly. Mr. O'Reilly asked if she was trained to identify symptoms of someone who is intoxicated. Ms. Semple stated those would be slurring, stumbling, impaired speech. Mr. O'Reilly asked if she was on duty at Champions on October 9, 2000. Ms. Semple stated she was and arrived at about 4:00 p.m. and got off around 9:30 p.m. She was cocktailing and there was only one bartender, which was Theresa Firkins. Mr. O'Reilly asked what she did after she finished her shift. Ms. Semple stated she sat at the bar for awhile and left a little after 11 :00 p.m. Mr. O'Reilly asked if she knew Carolyn Barton. Ms. Semple stated she did. Mr. O'Reilly asked if she had spoken to Ms. Barton on the night in question. Ms. Semple stated she always said hello. Mr. O'Reilly asked if she had served her in the past and how often she was in Champions. Ms. Semple answered she had served her in the past and Ms. Barton was in the establishment about three or four times a week. Mr. O'Reilly asked what was her normal attitude. Ms. Semple stated she was happy. Mr. O'Reilly asked if she tended to be loud, boisterous and move around a lot. Ms. Semple stated yes she was very social. Mr. O'Reilly asked if she was a generous tipper. Ms. Semple answered yes. Mr. O'Reilly asked what she had observed Ms. Barton drinking that evening. Ms. Semple stated she was drinking beer and a couple of shots. Mr. O'Reilly asked if she had an opportunity to observe her between 4:30 p.m. and 11 :00 p.m. Ms. Semple stated she did but was not paying attention to what she was doing. Mr. 0' Reilly asked if Ms. Barton left at any time and if so when. Ms. Semple stated she did leave for awhile but she does not remember when. Mr. O'Reilly asked if she knew how long she was gone. Ms. Semple stated no but she was gone for awhile. Mr. O'Reilly asked if Ms. Barton appeared to be visibly intoxicated. Ms. Semple answered no. Mr. O'Reilly stated she had related she spoke to Ms. Barton and asked if she had replied. Ms. Semple stated she had. Mr. O'Reilly asked if she heard any slurred speech or bloodshot eyes. Ms. Semple answered no. Mr. O'Reilly asked if she had been bartending would she had continued to serve Ms. Barton. Ms. Semple answered yes. Mr. O'Reilly asked when last call took place. 42 02-27-2001 Ms. Semple stated Ms. Firkins called for last call at about 10:30 p.m. Mr. O'Reilly asked if Ms. Barton tried to get another drink after last call. Ms. Semple stated yes but Ms. Firkins did not give her one. Mr. O'Reilly asked if she knew when she was last served. Ms. Semple stated probably around 10:30 p.m. when she called last call. Mr. O'Reilly asked what time Carolyn left the bar. Ms. Semple stated around 11 :00 p.m. Mr. O'Reilly asked if she seemed visibly intoxicated at that time. Ms. Semple stated no but she was happy. Mr. O'Reilly asked if Ms. Barton acted in the same way she acted when she was sober. Ms. Semple stated to a certain extent. She stated she was always boisterous. Mr. O'Reilly asked if she had seen Ms. Barton in the parking lot on her bicycle. Ms. Semple answered no. She thought she was going with her friends. Mr. O'Reilly asked what she told the Sheriff about Ms. Barton's intoxication level. Ms. Semple stated she explained she was drinking and having a good time but it was not to the point where they would stop serving her. Mr. O'Reilly asked if she had told the Sheriff that Ms. Barton was intoxicated but not overly drunk. Ms. Semple answered yes. Mr. O'Reilly stated having just related she did not really seem to be intoxicated, could she explain what she meant. Ms. Semple stated she does not remember saying that. What she recalls is the Sheriffs Officer asked about signs of intoxication and if any of those applied to Ms. Barton. She replied some of them do but that is on a daily basis intoxicated or not. Mr. O'Reilly asked if it was her testimony that Ms. Barton was not visibly intoxicated when she left. Ms. Semple stated she was drinking and having a good time but did not think there was anything to worry about. Mr. O'Reilly asked if she would have continued to serve her. Ms. Semple stated yes. Mr. O'Reilly asked if she had ever cut off Ms. Barton. Ms. Semple stated she had never cut her off but had slowed her down and cut her off shots. Mr. O'Reilly asked if she had seen any other employee cut her off. Ms. Semple stated no and they are usually in good communication about that. Mr. Emerson asked if Ms. Semple still works at the bar. Ms. Semple answered yes. Mr. Emerson stated if the bar loses their liquor license as a result of this hearing she would lose her job, was that correct. Ms. Semple answered yes. Mr. Emerson asked if she was friends with Theresa Firkins. Ms. Semple stated she was. Mr. Emerson stated she was the bartender on duty whose service is being criticized somewhat. Ms. Semple answered yes. Mr. Emerson asked if she was on duty when Ms. Barton came on duty at about 4:30 p.m. on the afternoon of October 9, 2000. Ms. Semple answered yes. Mr. Emerson asked if Marilyn Feldman was the bartender at that time. Ms. Semple stated that was correct. Mr. Emerson asked if she recalled Ms. Barton being served two 22 ounce red beers. 43 02-27-2001 Ms. Semple stated she did not serve her any beers. Mr. Emerson asked if she disputed Ms. Barton being served two 22 ounce red beers. Ms. Semple stated no she did not dispute that. Mr. Emerson stated Ms. Barton left for awhile and asked if Ms. Semple knew if she had gone to the grocery store. Ms. Semple stated she did not know if Ms. Barton went to the grocery store. Mr. Emerson asked if she had seen groceries on her bicycle. Ms. Semple answered she did not even know she was on a bicycle. Mr. Emerson asked if it is the bartender and cocktail waitresses duty to pay close attention to the patrons of the bar because they are responsible for the amount of alcohol that is served to the patrons. Ms. Semple stated that was correct. Mr. Emerson asked if part of the reason it is so important is because it is State law, that the bar could lose its license. Ms. Semple stated correct. Mr. Emerson stated it is also important as a matter of safety. Is that correct. Ms. Semple stated that was correct. Mr. Emerson stated when people drink they do not show the best judgement do they. Ms. Semple answered no. Mr. Emerson stated and the bartender is supposed to not be drinking and the person in the bar who is sober, in charge and in control. Mr. Semple stated that was correct. Mr. Emerson stated that night, when she went off duty she was drinking, with her boyfriend and watching a football game. Ms. Semple stated yes. Mr. Emerson stated she had indicated that she was not paying much attention to what Ms. Barton was doing. Ms. Semple answered yes. Mr. Emerson stated Ms. Semple has been here through this hearing and heard Ms. Maas testify, who was Ms. Barton's roommate, who was with Ms. Barton throughout the evening and she was not. Is that correct. Ms. Semple stated that was correct. Mr. Emerson stated Ms. Maas had a much better opportunity to observe Ms. Barton's demeanor and her behavior and signs of intoxication. Is that correct. Ms. Semple answered yes. Mr. Emerson stated she also had a much better opportunity to observe how many drinks Ms. Barton was having and how many she bought. Ms. Semple stated that is true. Mr. Emerson stated she does not dispute the fact that Ms. Barton was showing visible signs of intoxication, that Ms. Maas testified to. Ms. Semple stated that was correct. Mr. Emerson stated those included stumbling, slurring her speech, being red faced, being loud and boisterous and getting progressively worse, having difficulty with her balance, all of which you know from your TIPS class to be clear signs of intoxication. She heard Ms. Maas testify that she did not think Ms. Firkins should have continued to serve Ms. Barton alcohol under these circumstances, did you not. Ms. Semple answered yes. Mr. Emerson stated she also related at one point in the evening Ms. Firkins actually cut of or threatened to cut off further service to Ms. Barton but later allowed her to have more alcohol. Ms. Semple stated she heard her say that. 44 02-27-2001 Mr. Emerson stated she related there was nothing to worry about that evening, but isn't it true that someone who has a .216 BAC there really is something to worry about with that person. Ms. Semple answered yes. Mr. Emerson stated that is a really high blood alcohol isn't it. Ms. Semple stated yes it is. Mr. Emerson stated it is more that twice the legal limit to get on a bicycle and ride it. Ms. Semple stated yes it is. Mr. Emerson stated it is more that twice the legal limit to get it a car and drive it. Ms. Semple stated absolutely. Mr. Emerson stated it is a safety factor when someone leaves the bar when they are in that state of intoxication. Ms. Semple answered yes. Mr. Emerson stated dangerous for that person and the person they might come into contact with, isn't that correct. Ms. Semple answered yes. Mr. Emerson asked if she had any information that Ms. Barton went anywhere other than directly home that evening. Ms. Semple stated no she does not. Mr. O'Reilly asked when Ms. Maas was viewing Carolyn's behavior she was also drinking was she not. Mr. Semple stated she was. Mr. O'Reilly asked if she knew how much Ms. Maas had to drink. Ms. Semple stated she did not know. Mr. O'Reilly asked if she showed any signs of intoxication at all. Ms. Semple stated when she was working that night she was helping out in the dining room and the bar and she trusts Ms. Firkins completely. There were only 6 people in the bar. Mr. O'Reilly stated it seems that she first testified that Ms. Barton was not visibly intoxicated and then testified that she showed signs of intoxication. Ms. Semple stated what she showed signs of was being loud and she was having a good time playing pool and foosball and hanging out with her friends. Mr. O'Reilly asked in her opinion was Ms. Barton visibly intoxicated. Ms. Semple stated she does not believe she was. Mr. O'Reilly asked if she knew why Ms. Firkins threatened to cut off Ms. Barton. Ms. Semple stated no she does not. Mr. O'Reilly asked if she was qualified to estimate Ms. Barton's blood alcohol level. Ms. Semple stated no she is not. Mr. O'Reilly asked if she had any information on where Ms. Barton went after leaving Champions. Mr. Emerson read from Officer Hollenbaugh's report and asked her if her statement, "Bridget said that Carolyn was intoxicated but did not think she was overly drunk." He asked if she said that. Ms. Semple stated she does not remember saying that. Mr. Emerson asked if Brian Turner had interviewed her and was it true that she told him if she had been the bartender she would have slowed Ms. Barton down in her drinking. Ms. Semple stated that was correct. Mr. Emerson stated the only reason to slow someone down when they are drinking is that they are getting to that critical point where they have had too much to drink. Ms. Semple stated before she gets herself in trouble she will slow her down. Mr. Emerson stated there was something that she saw that would indicate that would have been appropriate behavior by a bartender that evening. 45 02-27 -2001 Ms. Semple stated that was correct. Commissioner Gallagher stated he wanted to understand the idea of slowing someone down. He stated she cut off shots. Do they then serve only beer. Ms. Semple stated they can have beer or a drink but no shots. Commissioner Gallagher asked if she based that on some signs of intoxication. Ms. Semple answered correct. Commissioner Gallagher stated so they are too intoxicated to have shots but not too intoxicated to have other alcohol. Ms. Semple stated if you continue to serve them shots you have to continue to keep your eye on them and make sure you are always focused on them. Commissioner Menconi asked when she heard about the death of Ms. Barton. Ms. Semple stated it was the next afternoon. Commissioner Menconi asked when she heard they might have been some question about the amount of alcohol that Ms. Barton was served. Ms. Semple stated maybe the day after. Commissioner Menconi asked if she remembered what her feelings were at that time. Ms. Semple stated she thought it was unfortunate and we discussed it and thought about it and they did not feel they were the ones to cause this accident. Mr. O'Reilly called Andrew Byrne to testify. Mr. Byrne stated he has worked for this company for the past three years. Mr. O'Reilly asked ifhe had been trained in the service of alcohol. Mr. Byrne stated yes he has. Mr. O'Reilly asked ifhe had been certified by the TIPS training program. Mr. Byrne stated yes he has. Mr. O'Reilly asked what the training is comprised of. Mr. Byrne stated they go over serving responsibility, how to look for signs of too much alcohol, how to keep it from getting to that point, slowing shots down. As it was referred to, it is not that you are too drunk to drink any more alcohol it's that a shot will affect you differently and quicker than sipping a mixed drink for an hour or so. Mr. O'Reilly stated he was present during Ms. Semple's testimony and asked him to explain what TIPS training there is with respect to slowing people down. Mr. Byrne stated they make it zones, green, red and yellow, yellow being the middle when someone should be cut off, red being the obvious, someone should not get to that point, which is stressed to you. You try to keep someone in the green by slowing down shots. Mr. O'Reilly asked him to explain his understanding of the yellow zone. Mr. Byrne stated it is not that you cannot give them another drink but it might be their last or it might be their second to last. That person is getting to the point of being brought to the next bartenders attention. They tell you how the body metabolizes alcohol. They tell you how intoxicated a person would be if they drank so much alcohol. Mr. O'Reilly asked ifhe had been trained that it is acceptable to serve individuals who are in the yellow zone. Mr. Byrne stated they taught that a person in the high yellow zone should not be served. Mr. O'Reilly asked ifhe knew Carolyn Barton. Mr. Byrne stated yes he did as she was a frequent local in the bar. He stated he has hung out with her and her roommates here and there. Mr. O'Reilly asked if he had served Carolyn on other occasions. Mr. Byrne stated yes. He stated she was a fun person and did not have anything bad to say about anybody. She was not loud and in your face but made sure she got her point across. Mr. O'Reilly asked if Ms. Barton had what he would call a normal drink. 46 02-27-2001 Mr. Byrne stated she liked rum and sevens. Mr. O'Reilly asked ifhe had ever seen her visibly intoxicated and being served. Mr. Byrne stated not visibly intoxicated. He related you are out there having a good time and getting intoxicated but not visibly. Mr. O'Reilly asked if intoxication was harder to see in Carolyn than in other people. Mr. Byrne stated on the sole fact ofthe regular drinking basis, they find ways around. You don't let the bartender see how you act. Mr. O'Reilly asked if Ms. Barton commonly bought rounds of drinks. Mr. Byrne stated yes and on a few occasions it was her buying for the roommates. He stated you don't have to drink all of the amount of drinks shown on your bar tab. You can buy rounds for other people. Mr. O'Reilly asked ifhe had the opportunity to observe Ms. Barton on October 9,2000. Mr. Byrne stated he came in that evening, had one drink at the bar right before last call, so it was probably around 10:30 a.m. He stated he is the one who wanted to go to another bar. Would he have served her? Yes. Mr. O'Reilly asked ifhe was aware when Ms. Barton quit drinking that evening. Mr. Byrne stated he was not. Mr. O'Reilly asked if he was aware if Ms. Barton was served after 10:00 p.m. Mr. Byrne stated he was not. Mr. O'Reilly asked ifhe had seen Ms. Barton leave the bar? Mr. Byrne stated yes. On the way out he said good bye to his co-workers, went out and saw Ms. Barton riding around the parking lot on her bicycle. They were going to another bar but he offered to take Ms. Barton home and she responded with a wave over her shoulder on her way out of the parking lot. Mr. O'Reilly asked ifhe saw bags of groceries. Mr. Byrne stated he remembers groceries but does not remember if they were on the back or if they were on the handle bars. Mr. O'Reilly asked ifhe saw her complete two or three turns around the parking lot. Mr. Byrne stated yes and it was at least two. Mr. O'Reilly asked ifhe saw her losing her balance. Mr. Byrne stated the weight of the groceries could do that. If it had been a wobbly ride he would have gotten her off the bike at that time. Mr. O'Reilly asked about the policies at Champions concerning serving alcohol. Mr. Byrne stated he has made calls to the Sheriffs Office. He stated he made a READI report just last week. When someone tries to leave my establishment the first thing to do is try and get them home with a sober friend. If that doesn't work, then he will call a cab and he will pay for half ofthe tab if needed. He stated they usually lock the doors and he is forced to call the Sheriff s Office and report a drunk driver. Mr. O'Reilly asked what 86'ing means. Mr. Byrne stated maybe it is someone we don't want back in our bar. We reserve the right to serve anyone. It is for the safety, health and welfare of our customers. Mr. O'Reilly stated if a person is 86'ed that means they are excluded from the bar. Mr. Byrne stated they could be 86'ed for two weeks, that night or maybe a year. It is discussed between the bar staff and they do as they see fit at that time. Mr. O'Reilly asked what would he do if a visibly intoxicated individual came into the bar. Mr. Byrne stated it has happened and he asked the Sheriff s Office about what to do. He was told to get them out of the bar as soon as possible. Mr. O'Reilly asked ifhe would call the police. Mr. Byrne stated if the person got loud and rowdy because of his decision he would most 47 02-27-2001 definitely call the police. If he starts a fight with him then a customer might get into it. Mr. Emerson stated he is current employee of Champions and if the bar loses its license he would lose his employment, is that correct. Mr. Byrne stated this is not his future livelihood and he is in the process of giving his two week notice for other reasons. Mr. Emerson stated he testified he came to the bar approximately 15 minutes before last call and had one drink, is that correct. Mr. Byrne stated that was correct. Mr. Emerson asked if he had been drinking somewhere else prior to coming to Champions. Mr. Byrne stated no he was home cleaning most of the day and did his shopping. He went to Champions to see who was there and to have a couple of drinks. Mr. Emerson stated he didn't see Ms. Barton earlier in the evening? Mr. Byrne answered no. Mr. Emerson stated then he had no opportunity to observe first hand the same things that Ms. Maas testified about while she was there drinking with Mr. Barton. Mr. Byrne stated that is correct he did not have an opportunity to observe her. Mr. Emerson asked if he disputed the signs of intoxication that Ms. Maas testified about that Ms. Barton was showing when she came into the bar. Mr. Byrne stated no. Mr. O'Reilly asked when he entered into the bar where was Ms. Barton. Mr. Byrne stated it is hard to recall but he seemed to remember a group of them back by the pool tables. Mr. O'Reilly asked ifhe went over and talked to her. Mr. Byrne stated he went up to the bar and they came over and said hello. Mr. O'Reilly asked ifhe had an opportunity to talk to her. Mr. Byrne answered yes. Mr. O'Reilly asked how long he was at Champions before he left. Mr. Byrne stated until about 11 :00 p.m. when they left. He was there about an hour. Mr. O'Reilly asked ifhe had enough time to make a determination as to whether Ms. Barton was or was not intoxicated. Mr. Byrne stated he is an extra set of eyes but you tend to not see anything when your off duty. Mr. O'Reilly asked again if Carolyn Barton was visibly intoxicated. Mr. Byrne stated in his opinion, no. He thought she could have a couple more, which is why he asked her to go to the bar with them. Mr. O'Reilly called Theresa Firkins to testify. She stated she was working at Champions on October 9, 2000. She stated she knew Ms. Barton as she came into the bar a couple oftimes a week. Mr. O'Reilly asked if her knowledge of Ms. Barton would be limited to the bar. Ms. Firkins answered yes. Mr. O'Reilly asked if she had served her previously to October 9,2000. Ms. Firkins stated yes she had. Mr. O'Reilly asked what was her normal personality. Ms. Firkins stated she was pretty loud and over bearing but was nice. Mr. O'Reilly asked when she arrived at Champions that night. Ms. Firkins stated second shift starts at 5:30 p.m. and she got there at about 5:00 p.m. Mr. O'Reilly asked when she first noticed Carolyn. Ms. Firkins stated right away. Ms. Barton was playing chess with Jim O'Hara. Mr. O'Reilly asked if she had any idea how long she played chess. Ms. Firkins stated for quite awhile. Their average game was probably about 45 minutes. Mr. O'Reilly asked if she saw her leave the bar. 48 02-27-2001 Ms. Firkins stated she did not see her leave. Mr. O'Reilly asked if she noticed if Ms. Barton had bags of groceries. Ms. Firkins stated she did not notice until they all left and she noticed the bags attached to her bike while she was riding around the parking lot. Mr. O'Reilly asked about what time she would have served Ms. Barton alcohol. Ms. Firkins stated she would have served her at 5:30 p.m. As she recalls she did not get a drink from her until around 7:00 p.m. Mr. O'Reilly asked if Ms. Barton had a drink in front of her when she came on duty. Ms. Firkins stated she had a 22 ounce red beer. Mr. O'Reilly stated to her recollection Ms. Barton did not buy any drinks from 5:30 p.m. to 7:00 p.m. Ms. Firkins answered that was correct. Mr. O'Reilly asked if Ms. Barton had bought any rounds of drinks for her friends. Ms. Firkins answered yes she bought two rounds of shots. Mr. O'Reilly asked what the shots were. Ms. Firkins stated tequila and buttery nipples. Mr. O'Reilly asked how many were in a round. Ms. Firkins stated she thought there were six people in a round. Mr. O'Reilly asked if she noticed how many of those shots she actually drank Ms. firkins stated she drank one from each round. She related the reason she knows that is because she was at the bar. Mr. O'Reilly asked how close was she to Ms. Barton. Ms. Firkins explained. Mr. O'Reilly asked if she was in that proximity most of the evening. Ms. Firkins stated she did not get drinks from the cocktail waitress but rather got drinks directly from her. However she did play foosball, pool and chess that night so she was not at the bar the entire time. Mr. O'Reilly stated she had good opportunity to observe her condition and did she form an OpInIOn. Mr. Firkins stated she was fine. Mr. O'Reilly asked what she bases that on. Ms. Firkins stated she had cut people offbefore in Champions. She herself drinks and knows what the limit is. She stated she is built a lot like Ms. Barton except Ms. Barton was just a little heavier than she was. In her opinion she was not visibly intoxicated. With the alcohol she did serve her, if she left the bar and went straight home there is no way that she had that much of an alcohol level. Mr. O'Reilly asked if she had knowledge of how much Ms. Barton had to drink that evening. Ms. Firkins stated she had three 22 ounce red beers, 2 rounds of shots and 1 shot by the two gentleman friends. That was on her shift. She has heard what she had before she got there. Mr. O'Reilly stated anything else she had to drink had to have been before 5:30 p.m. Ms. Firkins stated that was correct. Mr. O'Reilly asked if it would have been before 5:00 p.m. Ms. Firkins stated that was correct. Mr. O'Reilly asked when Ms. Barton had her last drink Ms. Firkins stated it was 10:30 p.m. because it was last call and she served her one more. Mr. O'Reilly asked what kind of drink that was. Ms. Firkins stated it was a seven and seven that she split with her two roommates. Mr. O'Reilly stated she would have had three beers, three shots and a half of a drink. Ms. Firkins stated yes. Mr. O'Reilly asked if she remembered when Ms. Barton left. 49 02-27-2001 Ms. Firkins stated everyone was gone at 11: 15 p.m. Mr. O'Reilly asked if that was when she left as well. Ms. Firkins answered yes. Mr. O'Reilly asked if there was any time after 11 :00 p.m. that Carolyn tried to get another drink. Ms. Firkins stated yes she had asked for one more but she informed her she had already called for last call and z'd out so she was not serving anything else. Mr. O'Reilly asked at that time was she not served because she was intoxicated or because you were done for the evening. Ms. Firkins stated last call is last call. She does not care who you are. Mr. 0 'Reilly asked if she suspend or cut off Ms. Barton's drinking privilege. Ms. Firkins answered no she did not cut Ms. Barton off. Mr. O'Reilly asked if she had threatened to. Ms. Firkins stated yes. There was a gentleman that came in who had been 86'ed for being disruptive and fighting. He came in the back door with and alcoholic beverage. She went back to ask the gentleman to leave. When she got back there Ms. Barton was playing pool. As she started talking to the guy and told him he would have to leave, he did not want to leave. When he decided he would leave he had a beer he wanted to take with him. Ms. Barton said that she was having words with him and she knew the guy. She came up to try and help the situation. Ms. Firkins stated she did not feel well that night and had a bad evening. She turned to Ms. Barton and told her to sit the f-(explicated deleted) down or get the f---- (explicated deleted) out. So she went and sat down. Mr. O'Reilly asked if she had told her that because she felt she was visibly intoxicated. Ms. Firkins stated no. Mr. O'Reilly asked if she had told her that because she as being too loud. Ms. Firkins answered no. She stated she told her that because she was getting in the middle of her job. She does not work there and is only a patron. If something were to happen to her the bar would be in trouble. She did not want that. It was her job to ask that gentleman to leave whether she knew the gentleman or was her boyfriend or anyone else. Mr. O'Reilly asked if Ms. Barton paid the tab to her. Ms. Firkins stated yes she did. Mr. O'Reilly asked what took place. Ms. Firkins stated Ms. Barton actually wrote the credit card slip out right before she left. She let her and her friend go ahead and finish the seven and seven. She gave her the credit card receipt and she signed it and she related to her not to forget the two packs of cigarettes she had put on account, which are $4.00 each, which is the $8.00 total. She watched her sign it and she gave it to her. Mr. O'Reilly asked with respect to the signature, was she familiar with Ms. Barton's signature. Ms. Firkins answered no, she believes that was the first night she had gotten a credit card from her. She had always paid cash previously. Having seen Mr. Dockery's copies of the credit card receipts, there is no difference in her signature. Mr. O'Reilly stated she signed the credit card receipt, gave her a copy, then what happened. Ms. Firkins stated she told them to be careful and have a good night and she watched them leave. She stated she saw her walk out the door and the last visual she has is Ms. Barton riding a circle in the parking lot. Mr. O'Reilly asked if she was sitting at the bar immediately prior to leaving. Ms. Firkins answered she stood at the bar and signed her bill. Her and her roommates were playing darts. Mr. O'Reilly asked then she watched her go out the door. Ms. Firkins answered yes. Mr. O'Reilly asked if she seemed to walk alright. Ms. Firkins answered yes she was fine. 50 02-27-2001 Mr. O'Reilly asked if she was slurring her speech. Ms. Firkins answered no. Mr. O'Reilly asked if she had seen her trip over anything. Ms. Firkins answered no she never saw her trip over anything. Mr. O'Reilly stated she did not see her in the parking lot, was that correct. Ms. Firkins stated she did see her riding her bicycle in a circle in the parking lot. Mr. O'Reilly asked how she appeared while riding her bicycle. Ms. Firkins stated she looked fine to her. She stated she does not believe she could ride a bike in a circle in the parking with a blood a1cohollevel that high. Mr. O'Reilly asked how many bags of groceries there were. Ms. Firkins stated there were three. Mr. O'Reilly asked how they were hooked to the bicycle. Ms. Firkins stated she believes they were on her front handle bars. Mr. O'Reilly asked if her balance appeared to be unimpaired. Ms. Firkins answered yes. She was fine, there was no wobbling with the bags. Mr. O'Reilly asked if she had ever cut off Ms. Barton. Ms. Firkins stated no. She stated she had cut off the roommate before but not Ms. Barton. Mr. Emerson asked if Marilyn Feldman was on duty when she got to the bar that evening. Ms. Firkins stated yes. Mr. Emerson stated she told the police officer that she sold Ms. Barton two 22 ounce beers during happy hour. Does she have any reason to dispute that. As a matter of fact she had a beer in front of her when Ms. Firkins arrived at the bar. Ms. Firkins answered correct. Mr. Emerson asked if the first drink she served Ms. Barton was another 22 ounce beer sometime after 7:00 p.m. Ms. Firkins stated she believes so. That time she is not sure of but believes it is correct. Mr. Emerson asked if her testimony was that she actually served her three 22 ounce beers that evemng. Ms. Firkins stated correct. Mr. Emerson stated a 22 ounce beer is obviously a lot closer to two 12 ounce beers than one 12 ounce beer. Ms. Firkins stated that is not correct, not with the tomato juice in it. Mr. Emerson stated so in each case each of these beers that she had was a red beer that night. Ms. Firkins stated yes it was. Mr. Emerson stated Ms. Barton also had a domestic beer that she purchased. Ms. Firkins stated that went to Jim O'Hara. Mr. Emerson stated other people in the bar were buying her drinks weren't they. Ms. Firkins answered no. Mr. Emerson asked if her roommates had bought her drinks. Ms. Firkins stated that her roommates did not buy her drinks the two gentlemen that were with her bought her a shot. Mr. Emerson stated she heard Ms. Maas testifY that she bought drinks that evening did she not. Ms. Firkins stated she did hear that. Mr. Emerson asked if she disputed that. Ms. Firkins stated yes she does. Mr. Emerson stated she also heard her testifY that other people bought Ms. Barton drinks that night also. Ms. Firkins stated she did hear her say that. Mr. Emerson asked if she disputes that as well. 51 02-27-2001 Ms. Firkins stated they are not here to testify so she does not know. Mr. Emerson stated that is not what he is asking. Ms. Firkins stated she does not know how to answer that. Mr. Emerson stated in her testimony she related she thought Ms. Barton was fine. Ms. Firkins stated correct. Mr. Emerson stated yet the evidence that has been presented here indicates she had a .216 blood alcohol level, she was not able to safely operate her bicycle, had a bicycle accident and died. Ms. Firkins asked then where did she drink at. Mr. Emerson asked if she considers that fine. Ms. Firkins stated when she left her bar she was fine. Mr. Emerson stated she has no evidence to indicate that she went anywhere else or consumed anything else or was not dead within thirty five to forty minutes after leaving your bar do you. Ms. Firkins stated he has no evidence that she did not go anywhere else either. Mr. Emerson asked if she had been present through out the hearing. Ms. Firkins stated she has. Mr. Emerson asked if she had heard the coroner testify that he believed the time of death was approximately one hour after leaving the bar. Ms. Firkins stated and why did he say that, because he heard the roommate say Ms. Barton left about 11 :30 p.m. He actually agreed with Mr. O'Reilly that is why he said that time. Mr. Emerson stated he also said it was consistent with the observation of her injuries and the manner of her death, based on his observations it was also consistent with all the information that he obtained from the various Sheriff s Officers that were on the scene. She also heard Ms. Maas say that Ms. Barton was insistent on going straight home that evening as she wanted to get her groceries home. Ms. Firkins stated she guessed. She related she told her father that she was going to the library and actually went to her boyfriends house. That doesn't mean she always tells the truth. Mr. Emerson asked if Ms. Barton would have a reason to lie to her roommate about that. Ms. Firkins stated she does not know, would she. Mr. Emerson stated he does not think so. She has a potential for civil liability here if you admit, or ifthere is a finding that she acted improperly in serving this woman that night, isn't that true. Ms. Firkins stated she has a potential liability no matter what this court finds right now. She has already been told that. Regardless of what this committee finds, she has trouble that she could be in. She stated that is unfortunate seeing how she has never been in trouble in her life. This was an unfortunate accident. Commissioner Gallagher asked her to explain what a red beer is. Ms. Firkins stated it is tomato juice served in a glass a little bit larger than a shot glass and served with the beer, approximately 18 ounces of beer. Commissioner Gallagher stated you pour beer down the drain to make way for the tomato juice. Ms. Firkins no you just don't pour the beer. She puts the tomato juice in the 22 ounce glass first then fills it up with beer. Commissioner Gallagher asked how much this represents. Ms. Firkins stated the glass is about 2 and a half ounce glass. Commissioner Gallagher stated then about 20 ounces of beer. Mr. Firkins answered yes. Commissioner Gallagher asked if she would describe the drinks served to Rebecca, Andrea, Sean and the other two gentlemen. Ms. Firkins stated Andrea and Rebecca, they came in later. I know they did a couple of shots. I do not remember serving Andrea any drinks at all and Rebecca I served a mixed drink. Sean Glenn drinks Budweiser beer and always drinks shots of tequila. His buddy also drinks Budweiser beer and he does shots of tequila as well. 52 02-27-2001 Commissioner Gallagher asked how many Budweiser's and shots did John and his tall skinny friend have. Ms. Firkins stated they probably had three to five. Commissioner Gallagher stated and Rebecca only had one and Andrea had none. Ms. Firkins stated she remembers serving Rebecca only one mixed drink and she remembers serving them two shots each. She does not remember serving Andrea any drink. Commissioner Gallagher asked if she knew for sure how much Andrea had to drink that night. Mr. Firkins answered no. Commissioner Gallagher asked if she knew for sure how much Rebecca had to drink that night? Ms. Firkins stated other than what she served them no. Commissioner Gallagher asked if she knew for sure how much Sean had to drink that night. Ms. Firkins stated other than what she served them no she does not. Commissioner Menconi asked about the three 22 ounce beers. Ms. Firkins stated the red beers yes. Commissioner Menconi stated that would have been 66 ounces of beer, less approximately 8 ounces of tomato juice. Then there was three shots, then there was a portion of seven and seven served. Ms. Firkins stated that was correct. She drank from 7:00 p.m. to 11 :00 p.m. Commissioner Menconi asked what time they were able to identify when she started drinking. Ms. Firkins stated she thought she served her the first beer at around 7:00 p.m. She had been at the bar prior and had two beers from Marilyn. But over that period of time, you are talking about four hours. You can drink a bottle of wine at dinner in an hour. Commissioner Menconi asked Mr. Turner if he could explain that to him. Mr. Turner stated there is no definite out there. All the charts he has seen state a shot equals 5 ounces of wine and a 12 ounce beer. And the body digests that in a one hour period. He stated if you were to break that down it could be close to the correct period. Commissioner Menconi asked if he thought a person could be intoxicated in that period of time having drank 8 to 10 drinks over the course of five or six hours. Mr. Turner stated it varies with what you can observe. He stated that level of intoxication is very high. Commissioner Menconi stated could there be any kind of rough match made in having 8 to 10 drinks and a .216 alcohol level. Mr. Turner stated it sounds within reason. Mr. O'Reilly stated he will call Ralph Dockery to testify and he will be their last witness. Mr. Dockery stated his wife owns Champions and they operate as a management team. They have Sundance Saloon in Lionshead in Vail, they have the majority interest in Paddy's in Eagle-Vail. Due to the liquor license rules and regulations, he owns 100% of Sundance which is a tavern license, his wife owns 100% of Champions, which is a hotel and restaurant license and 77% of Paddys, which is a hotel and restaurant license. We operate as a team. She handles most of the back office, payroll, accounts payable, purchasing, insurance, things of that nature, with our controller Valerie Weggert. He handles a lot of the front end. He deals with the employees, menus, recipes, training, which is the most pertinent. Mr. O'Reilly asked about the employees training at Champions. Mr. Dockery stated they have a policy in all of our establishments, he was instrumental in getting. He was president of the restaurant association in Vail in 1997 and during that period his primary responsibility was to get 100% voluntarily TIPS training for all employees, all alcohol service employees, within the Vail Valley Restaurant Association. All our employees who handle alcohol are required to attend a TIPS training program with 90 days and sooner if possible. As soon as they can schedule a class of 10 people they get them in there with other restaurants and get them all trained. In addition to that they have periodic bar meetings at which time they go over any problems that they have 53 02-27-2001 had in the bar or the restaurant. Any new employees, we talk to them about how to handle 86ing, cutting off people, how to run a bar and keep it safe and sane. Mr. O'Reilly stated with respect to Champions, there has been some testimony that would indicate that Champions has a history of violations. He asked about Champions contacts with the Sheriff's Department. Mr. Dockery stated they have been involved with Champions since 1988. He built it and opened it. Prior to the time they owned it, it was known as Grandpa's, and Chicago Pizza, and it was also Dewey's Hard Time Saloon. It was shut down for alcohol and drug violations. We were asked by the landlord to come in and take it over. We had already rescued one troubled bar, that was the Sundance. We came into Champions and completely gutted the place and begin concentrating on food. He had a 50% partner at that time and she was going to run it. Unfortunately it turned out to be a bad partnership. She brought her brother in who only wanted to run a bar and have bands and did not want to deal with the food. They tolerated that for about five years until they ran it into the ground. At that time we bought them out and took it over. Since then they have never had a liquor violation. They call in the police. He looked at the police contacts and it appeared that 99% of those were called in by us. Our bartenders are trained through us and through TIPS to call the police if there is a potential problem. If there is a fake ID, if someone is bringing in alcohol beverages inside, someone trying to leave with them, if there is a potential fight, if there is a verbal disagreement, if someone is trying to leave. The READ I reports that Mr. Byrne mentioned, the police want us to call them immediately if someone has been drinking and are trying to get into their car, if the bartender determines that they should not be in a car. If we cannot get their keys away from them and get them a taxi, or get one of their friends to take them home, then we call the police on them. Like he says, he looked through the reports and believes 99% of them they have called the police in. They may think it is a pain in the a-( explicated deleted) to come over there but that is our job. The police say we have to do it, the liquor board says we have to do it. The TIPS training says we have to do it. Mr. O'Reilly asked since he and Ms. Dockery have been in control of Champions has that license ever been suspended. Mr. Dockery stated no. They have never had a violation. Mr. O'Reilly stated so there have been no fines paid in lieu of suspension. Mr. Dockery stated no. Mr. O'Reilly stated it is his testimony that in approximately 10 years violations have not been found to occur. Mr. Dockery stated that was correct. Mr. O'Reilly asked how he would characterize his dealings with the Sheriff's Office. Mr. Dockery stated they are great. There used to be a problem but since they took it over five years ago, redecorating, the food service has gone from 27% to 56% at this point. 44% of the sales are alcohol. He just spoke with Sargent Flynn one day when he was working the floor at Paddy's, he has been operating at the Sheriff's Office for many years. He was a training officer that night and brought in another officer in. He stated he told the other officer that Champions had turned the corner a number of years ago and was doing great. Mr. O'Reilly asked ifit is his testimony that Champions does not have a history of violations. Mr. Dockery stated he cannot say that it has ever had a history of violations 5 to 10 years ago because there was definitely a problem. In the last five years he cannot say there has been no problems because it is a constant battle. He stated it is a construction bar in the daytime and they serve 150 lunches and at happy hour they come back and they are there for another hour or hour and a half eating their burgers and having some beers before they go home. At night they have a mixed crowd. They have a lot of families in for dinner and in the bar they have younger people, construction crowd, yuppies, and lot of Vail Associates employees and a lot of restaurant employees. Every bar he has ever run, which is nine, you always have a certain amount ofproblems. If you are serving alcohol you eventually 54 02-27-2001 run into problems. Mr. O'Reilly stated just to make it clear for the Board, he does not have any personal knowledge with respect to the events on October 9,2000. Mr. Dockery stated no. He found out about it the next day. Mr. O'Reilly asked what his experience is with the serving of alcohol. Mr. Dockery stated he has been in the restaurant business since 1972, as a bartender and waiter first and a management trainee. He worked his way up to general manager of a number of restaurants in southern California. They moved here in 1981. His wife Cathy Dockery and he have been involved in five different liquor operations since then. Sundance Saloon was the first, which we still own. We had Studio of the Rockies, Concert Hall Plaza in 1988. He stated they had the brilliant idea of starting something for the kids in town and they opened Teen Nightclub. That lasted about a month. They changed it into a regular nightclub, which lasted about six months. At that time they were able to get out of it. They became involved in Jackalope Cafe and Cantina in 1988. They were 50% partners with Bob Doyle, who owns Bobs Place in Avon now. They operated that until 1997 when it sold. We opened Champions Grill in Edwards in 1989 as 50% and 50% partners with Candace Mathews and became 100% owners and operators in 1995. In 1997 they bought 77% of Paddy's in Eagle-Vail, which they still operate. Mr. O'Reilly asked if Mr. Dockery had personally had any TIPS training. Mr. Dockery stated he has taken the TIPS training program, or its equivalent through the Colorado Restaurant Association, their Bar Code Program, six different times. Mr. O'Reilly asked who provides that training. Mr. Dockery stated the TIPS program bounces around, the Vail Police provided it when they could. It was so inconsistent that when he was with the Restaurant Association they went to the Colorado Restaurant Association and asked if they had a program that was equivalent. It is called Bar Code and now if they have 10 people they can call down to the headquarters in Denver and they will send up a trainer. He also ran a class for CMC in 1992 on bartending. As part of that class he did the TIPS training, responsible alcohol service class in conjunction with it. Mr. O'Reilly stated they have heard testimony tonight concerning Ms. Barton's tipping and possible alteration of credit card receipts and her average tab, her habits that is. Does he have any documents that reflect any information in that regard. Mr. Dockery stated Mr. Turner came to him a couple of months ago and give him any checks and credit card vouchers that Ms. Barton had used at Champions. He stated he does not have a record of checks as he does not keep individual records. He stated he went through all the daily reports in August and September. He pulled all the records pertaining to Carolyn Barton. He stated there were 8 separate charges that range from $20.00 to $100.00. He thought a $28.00 tip was bad on a $50.00 bill but after looking at her receipts she had an $81.00 tab with a $50.00 tip, a $22.00 tab with a $30.00 tip, $83.00 tab with a $20.00 tip, $59.00 tab with a $23.00 tip and a $50.00 tab with a $28.00 tip on the night in question. He stated he did not realize at the time that $8.00 portion on the tab was the cigarettes. Mr. O'Reilly asked if he had a copy of the receipt that was signed on October 9, 2000. Does he also have copies or originals of the other credit card receipts. Mr. Dockery stated he has both. Mr. O'Reilly ask if he had examined the signatures on these receipts. Mr. Dockery stated that is the first thing he noticed. Mr. O'Reilly asked ifhe found any difference in Ms. Barton's signature. Mr. Dockery stated to him, he is not a handwriting expert, but they appear to be pretty similar and they all appear to be legible. He presented copies to the Board. Chairman Stone asked if they were to be entered into the record. Mr. O'Reilly answered yes. Mr. Dockery stated there are three items in the packet. There are copies of the credit card 55 02-27-2001 receipts, a copy of the training manual and a statement from himself. Mr. O'Reilly stated included in the packet is a copy of the document in his hand, was that correct. Mr. Dockery answered yes. It is a copy of some of the points included in their training program. There are three different programs out there. There is TIPS, Bar Code and this one is put out by Anheiser Busch. They are all comparable. Mr. O'Reilly asked in this information, as far as establishing a blood alcohol level, relating to a persons weight and a period of time, is there anything included in this document. Mr. Dockery stated there is. That is a fairly important part of the TIPS program. It goes over a persons weight, the number of drinks that they have and the blood alcohol content it could lead to. It also covers how the body burns off alcohol. The reason they do that is because they try to get the bartender to count drinks when they are serving people, which is very hard to do in a busy bar, or at least be aware of a persons size, how fast they are drinking and how many drinks they have had, and not let them get into the red zone. Mr. O'Reilly asked ifhe could describe Carolyn Barton in terms of her size, small medium or large. Mr. Dockery stated just from what he read on the autopsy report and it said she was 186 pounds and 5'9'% . Mr. O'Reilly asked ifhe had ever met her. Mr. Dockery answered no. Mr. O'Reilly asked ifhe had occasion to try and use your training manual to determine what the effect of having 8 or 10 drinks on a large person in six or seven hours would be. Mr. Dockery stated the only time you ever do that is when you have a TIPS training program. They do role playing. It is an exercise. They throw out a persons weight and how many hours and either give you a number of drinks and you give them the BAC or they were give you the BAC and you do the reverse figures. As far as doing it in real life, no. Mr. O'Reilly stated as far as the information in this packet is it possible or not possible to estimate if a large person had 10 drinks over 7 hours what their blood alcohol level would be. Mr. Emerson stated he is going to object at this point. He will not object to the admissibility of this information, it speaks for itself, but he does not believe this gentleman has the training, nor has a foundation been laid that he has the expertise as to how alcohol would affect you in general or how it would affect the woman that was killed specifically. He would ask the Chairman to direct that the witness move on from this scope of production of evidence. Mr. O'Reilly stated two comments. The prosecution has been allowed to do that and secondly the law is that a layman has the ability to testify in Court, let alone in an informal administrative hearing about his opinions about intoxication. That is not what he asked. He asked what the packet said. He believes Mr. Dockery can speak to what the packet says. Chairman Stone stated go ahead with some alacrity. Mr. O'Reilly asked him to look at exhibit 2.2. There has been some testimony that Ms. Barton had anywhere from 6 to 10 drinks in the course of 7 hours. If that were true, with reference to the chart labeled exhibit 2.2. Mr. Dockery stated this chart only goes out two hours. Mr. O'Reilly asked what does it suggest for an amount of alcohol to not be intoxicated. Mr. Dockery stated it says a large person can have three or four drinks initially and after that one drink per hour and remain under the level of intoxication. Mr. O'Reilly asked if a violation were to be found to have occurred, they would like to put on evidence in mitigation and argue penalty. He questioned would the Board like to hear that from this witness or should it be deferred to later. Chairman Stone stated the reason that they continued the hearing is to try and make a decision. 56 02-27-2001 He stated he would rather hear closing arguments and turn it over to the Board. Commissioner Menconi asked about the hours of operation, indicating they seem to vary according to the receipts from Ms. Barton. He asked what time do they close on the weekends and what time do they have last call on the week days. Mr. Dockery stated it is up to the discretion of the bartender. It is dependent as to the number of people in the bar and whether or not they are buying. They have the discretion to close. Normally they do not close before 11 :00 p.m., however on an incredibly slow night. On that night Ms. Firkins was sick and that is why last call was early. Commissioner Gallagher asked Ms. Roach about discussion with the liquor license holder rather than bringing them to the Board. Ms. Roach stated when an applicant comes in for renewal, a complaint and disturbance report is filled out and sent to the Sheriff s Office. When that comes back she reviews those. If there are any on there that involve alcohol she will contact the records department at the Sheriff s Office and ask for those reports. At that time a renewal hearing was scheduled and the applicant came in to discuss those matters. That was like a warning. She stated she also has met with the applicant a couple of time over those years to discuss those matters and how to resolve them. She stated when the next reports are obtained from the Sheriff s Office, after the applicant has met with the Board, they do not go back to the beginning and discuss them again. They only look at the past year. Commissioner Gallagher asked who the registered manager of this establishment is. Ms. Roach stated that would be Cathy Dockery, the owner. Commissioner Gallagher asked when that registration took place. Ms. Roach stated it was December 1999. Chairman Stone stated it is now time for closing arguments. Mr. Emerson stated the first thing he would like to emphasize is the Board has the right to disregard any evidence heard here today, particularly if they believe that evidence is the product of any bias or motive. They also have the right to give all the testimony they have heard here today whatever weight they feel is appropriate under the circumstances. In essence they can pick and choose from the evidence they have heard, what is the most credible and what should be given the most weight and if any should be given any weight at all. The law says that a bartender or an owner, cannot serve alcohol to a visibly intoxicated person. That is true whether or not that person is driving a car and is true whether or not they are riding a bike and is true whether or not they are walking home or taking the bus home, going with a designated driver. The illegal act is serving alcohol to a visible intoxicated person. It does not matter what happens after that occurs. The reason for that is that when a person becomes intoxicated their judgment is lessened. We all know that. People who are intoxicated or who have been drinking don't always exercise good judgment. They don't always know that they have had enough. It is the bartenders job, the person who is in charge of that operation, the person supposedly sober, to make sure that a patron does not over drink. The bartender, probably more than anyone else, is trained and should know what the signs are of over service and what the signs are when a person has had too much to drink. The bartender is the person that knows how many drinks have been served to that person, they get to see over what period of time that person has been drinking and they get to see how they are acting and that sort of thing. Here the evidence that we have is from interviews from people who were in the bar, and an off duty bartender. We have testimony from Rebecca Maas directly, who was an eye witness observer and who was with Ms. Barton throughout the evening who has no motive to falsifY her testimony, who he believes testified in a way that he believes is very credible and honest. What she told the Board was that when she walked in the bar Ms. Barton told her she was already messed up. It was obvious to her that Ms. Barton had been drinking a sufficient amount of alcohol. She related during the next three hours they bought a lot of drinks, people bought a lot of drinks for them and Ms. Barton got aggressively more and more intoxicated and she was outwardly showing signs of that intoxication. Even though she said that Ms. Barton was a hard drinker and held her alcohol well, she also related that Ms. 57 02-27-2001 Barton was showing visible signs of intoxication. In fact, she related that Ms. Firkins should have known to cut Ms. Barton off simply from the amount of alcohol, that Ms. Firkins, the only bartender in there that night served to Ms. Barton. She testified that Ms. Barton was loud and boisterous, her face was red, she was wiping her face, she tripped over a stool, she was having trouble with her balance, she was arguing with the bartender, she was slurring her speech, that she bought 10 to 15 drinks, that other people were buying drinks and that they were partying hard. She also said Ms. Firkins, depending on who you believe, either cut her off or threatened to cut off service. It does not take an expert to know why that happens. It happens because somebody has had too much to drink. There has been testimony about that. Ms. Firkins stated Ms. Barton was not intoxicated. But realistically what else could she be expected to say in a hearing like this. She testified that she faces civil liability based on what happened that night. But more importantly what Ms. Firkins said flies in the face of a lot of the evidence that the Board has. Eye witness evidence about other observations. It flies in the face of this bar tab. It flies in the face of Ms. Firkins cutting off service. It flies in the face in Ms. Barton's testimony earlier in the evening that she was messed up. He believes that the bar would like to argue that the time of death is important and argue that there is no evidence that she did not go elsewhere. It is true that her body was not found until the next day. It is also true that they do not have an autopsy report that establishes absolutely the time of death. But the circumstances and the evidence clearly imply that Ms. Barton was intent on going home that night, that she got on her bike and rode towards home, that she missed a turn, she had a bike accident and her injuries were consistent with dying pretty much immediately. This testimony is un-rebutted and there is no evidence that she went anywhere else or had anything else to drink. The coroner testified that it was his opinion, granted he is not a pathologist, granted he did not make an in depth study, but from all the information he had, it was his opinion that her death occurred shortly after she left the bar. Really that is not what is important. It is not important whether or not there is an exact time of death established. What is important is was she visibly intoxicated in that bar and did they continue to serve her. His argument is that if her death was shortly after she left and if she had a .216 BAC at the time of her death, which we know, and we know that did not change after her death, we know that she had an awful lot to drink at that bar. There is no evidence to the contrary. What the Board is being asked to do is speculate that maybe there was this trip somewhere else. That flies in the face of Ms. Barton's own words that she was going directly home. For the Board to make a finding that there is a violation they do not have to have a time of death. They do not have to exclude the fact that she may have had something to drink somewhere else. If the evidence establishes to your satisfaction, and it just has to tip that scale a little bit, to be a little more persuasive than not that she was intoxicated in that bar and that the bartender continued to serve her, that is a violation of Colorado law and is grounds for the Board to make a finding to not renew this license. In addition, he has asked the Board to consider the information about how this bar has been conducted in the past. They have tried to present evidence there has been a lot of problems in this bar. You have a police report about people who have passed out in the bathroom, who are urinating on the floor under the table, who have gone out stumbling and incoherent outside the bar. People who go outside and get into a car and attempt to drive and are pulled off on the side of the rode unable to drive and unable to converse coherently who have been drinking in the bar. He believes that clearly establishes under the law that there is a pattern in this bar that affects public health, safety and welfare of the individuals in the bar and also the immediate neighborhood. That is the test. If the Board will read the regulation he has provided it is even a little more lenient. It just says if the bar is conducted in a manner where visibly intoxicated persons are served or where there is rowdiness or undue noise or other disturbances or offensive activity to the senses of the average citizens or to the residents of the neighborhood, that is a violation and grounds for the Board to take action. He stated the Board has heard all of these things. He stated they would ask that the Board make a finding of fact that would support non-renewal on the basis indicated. Mr. O'Reilly stated he would submit that what they have heard and what they have heard summarized are two entirely different things. He believes they need to go back over the testimony of the 58 02-27-2001 witnesses again and see what they have. They have Theresa Firkins who obviously has a conflict of interest and that will always be the case and there is nothing anyone can do about that. That does not necessarily mean that the Board should not take her testimony at face value. Otherwise you would be finding that no bar employee was ever going to be believed. He thinks right there the Board needs to minimize the fact that arguably she could be charged with something that she has not been charged with many months later. He directed the Board to her testimony which they know so he will not summarize at great length that Ms. Barton was not visible intoxicated. He reminded the Board of a couple of things, one, being intoxicated is not the test. They should put that out of their minds. The test is visibly intoxicated. They can be two different things for an experienced drinker who is good at hiding those symptoms. He believes when they make their decision they must put themselves in the shoes of Theresa Firkins and ask themselves as an ultimate conclusion, was Ms. Barton visible intoxicated. What was visible. At best the testimonies conflict. They had Andrew Byrne and has the same conflict. His conflict seems to be disappearing by tendering notice, which is consistent with Ms. Firkins. They have Bridget Semple's testimony which is also consistent. Again that may be what is expected. Consider the nature of the hearing and who they would normally expect to be witnesses for the defense. The only people they can bring in is the people who were there and our witnesses just happen to be employees. With the exception of one other witness who was not present. The remaining witnesses and only one of them had any first hand knowledge and she is obviously pretty naive with respect to service of alcohol. Also when she was making her observations, by her own admittance, she was in the process of partying heavily. That has to be considered. They must consider the other two witnesses they heard have no first hand information at all. Their information was based on interviews and some of those were with people who were not brought here. He is not sure that it really needs to be given much consideration because the Board had already heard from those people. His testimony is not really of any great importance. It has been minimized that there is no date of death let alone time of death and argued that the Board should believe by making a finding of fact, that Ms. Barton left Monet's Tavern, Inc., and went straight home. If the Board does not find that, and you don't have any evidence to support that, then there is not any case here to speak of. The Board has three of the four witnesses testifying that she was not visibly intoxicated. Contrary to councils closing argument he believes that is essential. They also have two other circumstances, one is she had cannabis in the deceased's system and they do not know how that effected things. They do have the testimony of the Deputy County Coroner, who you are lead to believe has a basis for his conclusion that death occurred shortly after leaving Monet's Tavern. He would submit to the Board they have no such evidence what-so-ever. He himself indicated to the Board in these words, "there is no scientific basis for that opinion." If they base their conclusions on that opinion they would be doing a terrible disservice to this body and to his client. When that witness says he would not adopt the word speculation, that is what he told you. He has no training that would aide him in determining that. In this regard he is a layman and B, he just listened to everyone else's statements. He told this to the Board. He based his conclusion on when she left the bar and that she said she thinks she is going home. Then we have an 11 hour period. He believes the Board also needs to consider if she had been as drunk as the prosecution would lead them to believe, imagine yourself on a bicycle at 11 :00 p.m. with three bags of groceries in the dark successfully riding three circles around the lot and nobody there was able to testify that she appeared impaired. In fact they all testified that Ms. Barton performed that maneuver fine. That is not consistent with being dead drunk or having a .216 blood alcohol level. That is consistent with knowing she had something to drink and we are not going to deny that. We also have her roommates testimony that she expected to take Ms. Barton to another bar and expected her to be served. That would certainly tend to indicate that she was not visibly impaired. Four persons with personal knowledge, we have three of them who say absolutely point blank that she was not visibly impaired. The other one says she was trying to take her to another bar and I absolutely expected her to be served at that bar. That is your four witnesses. That is not much. Again this case is pure speculation. Where it is probably not speculation though, we have testimony which varies with respect to not the time 59 02-27-2001 period involved. He submitted the summary of the time period was incorrect. The testimony is that she arrived at about 4:00 p.m. They can account for her time until 11 : 15 p.m. to 11 :30 p.m. Probably closer to 11 :30 p.m. She left the bar at 11: 15 p.m., talked to some people, rode around on her bicycle at lease three times and was invited to go to another bar. You would think you could kill at least 15 minutes. Now we have a seven and a half hour period of time and we have, ifthey accept Ms. Firkins testimony, we have six and a half drinks. If they accept anybody else's testimony, they were just told that she was served fourteen to sixteen drinks. They have no such evidence in front of them. There is no combination of testimony that puts them anywhere near that level. What you have is a maximum, possibly as many as 10 drinks in seven and a half hours. He asked they consider their own lives. He does not know if any of the Board members drink or don't drink, but those of you who may drink he suspects they would not be very concerned about having seven to ten drinks in seven and a half hours. His point being is that it is totally inconsistent with this .216 BAC level. How are they to explain this. Again, even if they take the largest number of drinks, you are not going to find anyone at a BAC of .216 over seven and a half hours. There is only one explanation. This person, Ms. Barton, went somewhere else on the way home and had something else to drink. It is speculative that she did and she didn't. They have evidence that she did. It's the blood alcohol level. She did not get that blood alcohol level over seven hours and seven to ten drinks. If they look at those documents in front of them they will establish that. They will establish people metabolize about one drink per hour. So if they take drinks seven of them went away. Logically they cannot get to where the prosecution would like to them to get. It is easy to sympathize with what they are hearing and they are certainly sorry that there was a death. Similarly it has been misrepresented to the Board that there is this huge history of problems with this license. Yet by their witnesses own testimony since 1996 they have either a totally clean or virtually clean record. If as you are lead to believe, there is a history of on-going violations, how can you believe that when there are no citations. Are they to believe that the liquor inspectors for the County and the State and the Sheriff's Department are just ignoring those violations. The one witnesses testimony is that he had been in the place hundreds of times and has never written anyone up. What is wrong with that story compared with the assertion that this place has a history of violations. It doesn't work. If you are a duly sworn law enforcement officer and you are in this place a hundred or two hundred times and you are not writing up violations, either they did not occur or they are not doing their duty. He submitted it is because they did not occur. The reason he believes the Board should believe this is because when they look in your own records, the records of the authority, what do you find. You don't find any violations. There is no history of violations. This goes to the way this case and the evidence has been presented to you. It has been by speculation and misrepresentation. They have been told that all of these things happened but the evidence does not support it. That is the purpose of closing argument, is to argue what we believe the evidence shows and does not show. What it shows is a missing period of time and a dangerous situation. This person's death is totally consistent with consuming no alcohol at all. The witnesses testified that this bike path would be dangerous at any time of day or night. Nothing to do with alcohol. There is no evidence that it had anything to do with alcohol. That's his point. Again, it is not crucial to the findings of this Board because the standard is admittedly whether a visibly intoxicated person was served. He submitted a visibly intoxicated person was not served as testified to by three persons, two of whom have been trained in this area as opposed to people who have testified by second hand knowledge or who have no training or knowledge in this area at all. That is what they have in front of them, is the testimony of these witnesses. He summarized again they have an unfortunate situation but we have testimony that is uncontradicted and certainly believable that Ms. Barton bought a certain number of drinks but did not drink them all because some of them were for her friends. If they accept that testimony it does not matter how many you subtract, this does not add up. There is some minimal standard of proof that has to be observed here and admittedly it is very low. What we have first hand is the testimony of one person, an intoxicated roommate, that she thought that Ms. Barton was visibly intoxicated yet thought she would be served at another establishment. That is the sum total of the 60 02-27-2001 evidence against. Because this blood alcohol level is meaningless, by the prosecutions own witnesses. They would argue that in light of serving a visibly intoxicated person is the test and even that low burden has not been met. A person who has been drinking was served but not a visibly intoxicated person. Chairman Stone stated they have been provided four pages by Mr. Emerson, which are copies out of the Liquor Licensing Statutes. He stated the first one shown on page 30, 12-47-302, license renewal. At the end of that first paragraph, number one, it says "the licensing authority may refuse to renew any license for good cause subject to judicial review." This is a license renewal and not a show cause hearing. If he reads that second to last sentence, he does not read any other finding the Board can make. Is it an all or nothing situation or are there other portions of the Statutes that give options. Ms. Black stated that section allows the maximum the Board can do. They can enter into a stipulation when talking about punishment, with the license holder, allowing the Board to renew the license with certain conditions, or with the stipulation which occurs for a certain amount of time. She does not know if the applicant is willing to enter into that discussion at all. Chairman Stone wants to make sure that whatever decision they make is within the letter and spirit of the law. Mr. Emerson read the sentence quoted by the Chairman, "the licensing authority may refuse to renew any license for good cause." Chairman Stone asked if that was suggesting anywhere in between. Mr. Emerson stated what it suggests to him is if the Board finds there is a violation they are not obligated to deny the license. They have the discretion to either impose some sanction less than denial or deny the renewal. Chairman Stone questioned judicial review. Mr. Emerson stated that means if the applicant is not happy with your decision he has the right under the rules of civil procedure, he can appeal the Board's decision to District Court. Mr. Emerson stated the issue of the appeal is whether or not the Board has abused their discretion in this hearing. Mr. O'Reilly stated he is not aware of any provisions that allow the Board to do what has been offered to them. He is not telling them they do not have that authority but he does not know of one. Chairman Stone asked if he thought it was an all or nothing. Mr. O'Reilly stated that was correct. He further represented the Board make their decision as findings of fact and accept arguments and mitigation should a violation be found prior to imposing a sanction. At any time any parties can enter into a stipulation. Commissioner Menconi asked Ms. Maas if she knew Ms. Barton to go to any other establishments other than Champions on a regular basis. Ms. Maas stated in Edwards no. Commissioner Menconi asked if she ever went to the Gore Range or any of the other places on the corner. Ms. Maas stated in Edwards they always went to Champions. She was getting ajob at Jambalaya's. Commissioner Menconi stated he is looking at the receipts that were submitted and there are eight of those over an 18 day period in which there was $561.29 spend. That is an average of about $70.00 per visit. Ms. Maas stated they were there almost every night. Commissioner Menconi asked if that was her pattern for approximately two months. Ms. Maas stated that was correct, probably right before September started, middle of August first of September. They started going to Champions about every day. Commissioner Menconi asked if Ms. Barton would be characterized as somebody who would prefer to drink with her friends rather than drink alone. Ms. Maas answered yes. She stated her and Ms. Barton went out together. That day Ms. Barton 61 02-27-2001 went out alone to look for a job and she knew that we would be there later that night. Commissioner Menconi asked Mr. Hunter about him declaring this establishment as a nuisance. Mr. Hunter stated they have to make it a priority and do business checks on a nightly basis because of the problems they have had in the past several years. As they can see by the case number in the report, each ofthose represent an incident that the Sheriffs Office went to. They can see assaults and those types of things. They have taken it upon themselves to say they do not want any more problems in this bar, lets see what we can do to alleviate that. Part of what they do is lots of walk throughs. Commissioner Menconi asked as a police officer, what part of the County is he covering. Mr. Hunter stated he only works Edwards and has since he started because it is a busy area. Commissioner Menconi asked if for him personally, does this establishment stand out from all the rest. Mr. Hunter stated absolutely. In the four years he has been here he has had one fight at Gore Range Brewery, a couple at the Gashouse but nothing like he has had at Champions. Commissioner Menconi asked Mr. Hunter for an opinion as to what he has been hearing over the past five hours, what would be his conclusion as a liquor authority offering a right to an establishment based on the occurrences that have been mentioned today. Mr. Hunter stated besides the occurrences of the 9th, he believes they have shown a pattern through the police reports, that it was a pattern and these are serious incidents that are happening there. A person urinating on the floor is definitely a problem. A person passing out in the bar is definitely a problem. They are talking to something very damaging to that person. If they are getting to that level of intoxication who knows what is going to happen when they leave. They could aspirate in their vomit or are they going to be just fine. That is damaging and reads directly to the code. Those type of violations are under good cause. Commissioner Menconi read "it is unlawful for any person to sell, serve any alcoholic beverage to or for any person under 21 years of age or to a visibly intoxicated person or to a know drunkard." He related Mr. Turner had mentioned in his experience that liquor licenses have been know to not be renewed or taken away based on over serving. He asked for background on those decisions. Mr. Turner stated they have had decisions in his office of cases where there is an over service problem that ended in death and they took actions against those licenses. He had one in Paeonia in which they issued a suspension. The most recent one at the local level was a bar in Mt. Crested Butte which was a chronic problem and they decided to not renew their license. Commissioner Menconi asked for his personal opinion in today's case on renewing the license. Mr. Turner stated he believes it is a problem bar and if it continues as it is now there would be more problems. He would not renew the license. Ms. Black stated she would recommend they take the two possible violations separately. The first being the visible intoxication and the second being the continuing problems. Chairman Stone stated he doesn't quite understand the suggestion. Ms. Black stated what she is suggesting is the definition of good cause. One dealing with the visible intoxication and the other dealing with the totality of the circumstances. Mr. Emerson stated he has prepared proposed findings and it might be helpful to see how it is organized on paper. He stated it is not complete as he didn't know who all the witnesses were. Chairman Stone agreed to accept it as a form of testimony. He stated it is not being accepted into the record but as part of the closing arguments. Commissioner Gallagher stated he believes that the testimony of Rebecca Maas and her expectation of service anywhere else is probably based on her experience at Champions. Teresa's testimony, a bartender with an exact memory of every drink taken by the victim but unknown of the drinking of the others in the party, he finds her testimony to be less than credible. Commissioner Menconi spoke to page 4, Cl, he stated he is not certain that this is something 62 02-27-2001 they would be asking a decision on and asked that be stricken as it speaks to Teresa Firkins over serving Ms. Barton. He stated one of the concerns he has with this is that Teresa Firkins could be serving some sort of civil penalty. Mr. Emerson stated if there is a civil proceeding the outcome will be based on the evidence presented at that hearing. He doubts the decision here would have any conclusion on the outcome of any civil proceeding. Commissioner Menconi asked if it possible to have that removed. Mr. Emerson stated if they are making a finding of over service then it should not be removed. Mr. O'Reilly stated the findings at the end of Cl are pointless. He suggested that last sentence should be removed. Ms. Black stated it would be appropriate to make a more limited finding by simple saying the victim was visibly intoxicated. Chairman Stone stated one comment to the Sheriff s Deputy is that the Sheriff s office does not have a zero tolerance policy. He spoke to even though there were no formal actions taken, item 7-9 talks about serving to a minor and he finds that disturbing as well as other disturbances there. Commissioner Gallagher moved the Local Liquor Licensing Authority for Eagle County finds there was a violation of 47-900(a) that a person, Carolyn Barton, was served when she was visibly intoxicated at Champions Grill in Edwards by employees of Monet's Tavern, Inc., dba/Champions Grill.. Commissioner Menconi seconded the motion. In discussion Commissioner Menconi asked what would be a possible second motion. Ms. Black stated that would be based on serving a visibly intoxicated person, based on the same regulation. Chairman Stone asked if that is page 19 paragraph B. He spoke to good cause and the explanation found there. Commissioner Menconi asked if there will be other actions taken by this Board. Ms. Black stated that would show there is a violation. They may choose not to renew, to hear other testimony, or to a stipulation. Chairman Stone asked if there would be an opportunity to have closing arguments and to render a decision following deliberation. Ms. Black stated she will prepare some findings for the Board along with the other parties. Chairman Stone called for the question on the motion. The vote was declared unanimous. Commissioner Menconi asked for legal direction. Ms. Black responded there is good cause found relating to the operation of the licensed premises as are pointed our under 9d, Section 12-47-103 C.R.S. Commissioner Menconi moved there is good cause found relating to the operation of the licensed premises as are pointed our under 9d, Section 12-47-103 C.R.S. Commissioner Gallagher seconded the motion. In discussion, Commissioner Gallagher clarified it is the record of the Sheriff s Office and the testimony of Ms. Maas concerning partying hard. He stated this happens when there is a reputation of a liquor licensed establishment who does not change and they will continue to have that type of activity. Chairman Stone called for the question on the motion. The vote was declared unanimous. Chairman Stone spoke then to the continuance and asked about scheduling it to a date certain. Commissioner Gallagher asked about the expiration date of the renewal. Ms. Roach stated the licensed expired on January 14th of this year. Mr. O'Reilly stated he would have no problems with Tuesday in two, three or four weeks. The Board concurred on March 13th. Commissioner Gallagher moved to continue the hearing on the renewal for Monet's Tavern to the afternoon of March 13,2001 at 4:00 p.m. or as soon thereafter as it can be heard. Commissioner Menconi seconded the motion. The vote was declared unanimous. 63 02-27-2001 Commissioner Menconi moved to adjourn as the Local Liquor Licensing Authority and reconvene as the Board of County Commissioners. Commissioner Gallagher seconded the motion. The vote was declared unanimous. PDP-00020, ZC-00046, Mt. Sopris Tree Farm Mick Ireland, Pitkin County Commissioner and Rick Stephens, Mayor, have recommend and asked that this be tabled to March 15,2001 and hold the hearing in Basalt at the High School. Commissioner Gallagher asked to hear from an Eagle County resident. Rick Stephens, Mayor of Basalt, stated he understands the procedural question of having the public hearing on their side of the County. He stated he has additional points to make as well. He stated the people here would like to go home or give their testimony at a later date in the Basalt area. Commissioner Gallagher stated to clarify some confusion about the ability of the Commissioners to hold meetings elsewhere and making decisions here, he suggested an Executive Session to discuss possible meeting schedule and advice from the County Attorney. Commissioner Gallagher moved to adjourn into Executive Session to discuss hearing this matter in Basalt to a later date and a possible hearing schedule. Commissioner Menconi seconded the motion. In discussion, Chairman Stone suggested he would like to have Jim Fritze attend the Executive Session and asked if there is a legal mechanism to do so. Mr. Loeffler stated he is still legal advisor to the County and can attend at their request. Chairman Stone called for the question on the motion. The vote was declared unanimous. The time was noted at 8:15 p.m. Commissioner Menconi moved to adjourn from Executive Session and reconvene into the regular meeting. Commissioner Gallagher seconded the motion. The vote was declared unanimous. The time was noted as 8:25. Chairman Stone stated the Board would like to take them up on their suggestion but it will be a minimum of two meetings. Chairman Stone stated there is also the matter of location. He suggested to the Board and asked if they could offer the Basalt Town Hall unless otherwise posted. He suggested that is a small area but there is no one else present to offer the use of another building. Mr. Steven stated that isn't a problem. Chairman Stone stated he is hesitant to make a decision on any other place unless another authority is present. Mr. Steven stated they can post this at the Town Hall and suggest that they can find another facility. Commissioner Gallagher asked if 5:00 is too early. He took a poll of the audience and 6:00 was a better time to consider. Commissioner Gallagher moved to table the hearing on the preliminary plan on the tree farm to March 15,2001 at 6:00 p.m. at the Basalt Town Hall unless otherwise posted. In discussion, Commissioner Gallagher related his apologies to ya'll, ya'll have been up as long as he has but they will be as quick as they can. Commissioner Menconi seconded. The vote was declared unanimous. There being no further business to be brought before the Board the meeting was adjourned until March 6, 20 1. , \ Ch \(re ~ aIrman Attest: Clerk to the B 64 02-27-2001