BEFORE THE LIQUOR CONTROL COMMISSION
2 OF THE STATE OF OREGON
In the Matter of the ) FINAL RULING,
4 Dispenser Class A (DA) ) FINDINGS OF FACT,
License Held by: ) CONCLUSIONS OF LAW,
5 ) AND ORDER
6 Lowell Hootman, President ) OLCC-99-V-045-A-ES
7 AND )
8 Growth Resources Inc. ) OLCC-99-V-045-ES
dba MULLIGAN=S )
9 210 SW Yamhill )
Portland, Oregon 97201 )
12 On February 3, 1999, the Commission issued a Notice and Order of
13 Immediate License Suspension and Proposed License Cancellation. On
14 May 18, 1999, the Commission issued an Amended Notice and Order of
15 Immediate License Suspension and Proposed License Cancellation. On
16 April 22, 1999, Licensee Lowell Hootman filed a Request for Hearing.
17 A hearing was held in the above matters on June 7, 1999, in
18 Portland, Oregon, before Administrative Law Judge Susan C. Hall.
19 Licensees and the Commission were not represented by legal counsel.
20 Nancie Carter was the case presenter for the Regulatory Program.
21 On July 2, 1999, the record was reopened to take Official Notice
22 under OAR 845-003-0530 of a temporary Commission policy regarding
23 noisy conduct. The record remained open until July 12, 1999, for
24 Licensees to submit argument and evidence in response to the temporary
Page 1 of 27 - FINAL ORDER
1 This Final Order addresses both the Immediate License Suspension
2 and the Proposed License Cancellation.
3 The Administrative Law Judge considered the record of the hearing
4 and the applicable law and issued a Proposed Order mailed July 21,
6 No exceptions to the Proposed Order were filed within the 15-day
7 period specified in OAR 845-003-0590.
8 The Commission adopts the Proposed Order of the Administrative
9 Law Judge as the Final Order of the Commission and enters the
10 following based on the preponderance of the evidence:
12 FOR THE COMMISSION: Jeanette Hartwell and Matthew Engen.
13 FOR THE LICENSEES: Moriah Jones and Lowell Hootman.
15 I. Whether the Commission should confirm, alter, or revoke the
16 Immediate Suspension Order under ORS 183.430(2).
17 II. Whether there was a history of serious and persistent
18 problems in the licensed premises or involving patrons of the premises
19 in the immediate vicinity related to the sale and service of alcohol
20 under the exercise of the license privilege in violation of
21 ORS 471.315(1)(c).
22 III. If a violation is proved, whether cancellation of the
23 license is the appropriate penalty.
24 I. IMMEDIATE SUSPENSION RULING
(2) In any case where the agency finds a
25 serious danger to the public health or safety
Page 2 of 27 - FINAL ORDER
and sets forth specific reasons for such
1 findings, the agency may suspend or refuse to
renew a license without hearing, but if the
2 licensee demands a hearing within 90 days
after the date of notice to the licensee of
3 such suspension or refusal to renew, then a
hearing must be granted to the licensee as
4 soon as practicable after such demand, and the
agency shall issue an order pursuant to such
5 hearing as required by ORS 183.310 to 183.550
confirming, altering or revoking its earlier
6 order....ORS 183.430(2).
In evaluating whether to confirm, alter, or revoke an Immediate
Suspension Order under ORS 183.430(2), the Commission has considered
10 a. Whether at the time of issuance of the
Immediate Suspension there was probable
11 cause to believe from the evidence
available to the agency that there were
12 grounds for revocation, suspension, or
refusal to renew the license under the
13 agency=s usual procedures;
14 b. Whether the acts or omissions of the
licensee pose a serious danger to the
15 public health and safety;
16 c. Whether the agency followed the appropriate
procedures in issuing the Immediate
17 Suspension Order; and
d. Whether circumstances at the time of the
hearing justify confirmation, alteration,
or revocation of the Immediate Suspension
Order. ORS 183.430; El Mirador Mexican
Restaurant, OLCC-91-V-150ES, December 1991.
a. Probable Cause
Based on the preponderance of the evidence available to the
Page 3 of 27 - FINAL ORDER
1 Commission at the time the Immediate Suspension Order was issued,
2 there was probable cause to believe that the following incidents
1. On June 1, 1998, at approximately 8:40 p.m.,
4 a patron of the licensed premises argued with
other persons on the sidewalk across from another
5 licensed premises, The Yamhill Pub. The patron
showed visible signs of intoxication including
6 bloodshot, watery eyes, difficulty walking,
slurred speech, and a strong odor of alcoholic
7 beverages. When a police officer attempted to
take the patron into protective custody and
8 transport him to a detoxification center, the
patron attempted to fight with the officer.
2. On July 23, 1998, at approximately 2 a.m.,
10 approximately three fights occurred between
patrons outside the license premises as it was
11 closing and the patrons were dispersing.
12 3. On August 2, 1998, at approximately 2:40
a.m., approximately 30 patrons were on SW Yamhill
13 Street near the licensed premises. Mulligan=s
had just closed and its patrons were heading
14 towards a parking garage nearby. Some of the
patrons were yelling and shouting.
4. On August 15, 1998, at approximately 11:15
16 p.m., approximately 75 to 100 patrons were
waiting to enter Mulligan=s. Some patrons in the
17 crowd were shoving, pushing, and arguing with the
premises= manager and two employees who were
18 checking identification and collecting a cover
charge. The employees had to hold the front door
19 shut in order to prevent patrons from pushing
past them and entering the licensed premises.
5. On October 4, 1998, at approximately 1:13
21 a.m., two patrons, who were formerly boyfriend
and girlfriend, fought outside the licensed
22 premises. The female patron was visibly
6. On October 25, 1998, at approximately 1:45
24 a.m., two patrons got into a verbal argument
about Agang sets@ inside the licensed premises.
25 After the patrons left the licensed premises,
Page 4 of 27 - FINAL ORDER
they continued their argument. One patron yelled
1 his Agang set@ and displayed gang hand signs in
order to provoke a violent response. A police
2 officer arrested this patron for Disorderly
7. On November 29, 1998, at approximately 12:45
4 a.m., two patrons, boyfriend and girlfriend,
fought inside the licensed premises. The
5 boyfriend punched the girlfriend in the face and
she attempted to defend herself. The bouncers
6 broke up the fight and evicted both patrons. One
of the witnesses to the fight was an under-aged
7 female who consumed alcoholic beverages inside
the licensed premises.
8. On December 13, 1998, at approximately 2
9 a.m., a patron was assaulted and robbed of $40.00
by three other patrons in the rest room of the
10 licensed premises.
11 When police arrived and attempted to investigate
the assault and robbery, other patrons intervened
12 and would not leave the immediate area when
instructed to do so by the police.
There were approximately 200 patrons leaving the
14 licensed premises and in the area immediately
outside the licensed premises. The police
15 repeatedly asked the patrons leaving the licensed
premises and in the immediate area to leave the
16 area. The patrons ignored the police requests to
leave and some patrons argued with the police.
17 Licensees= employees also asked the patrons to
leave the area and to leave quietly. The patrons
18 did not comply with their requests.
19 As the crowd was dispersing, a patron was
assaulted by an unknown person in the area near
20 the licensed premises. A gunshot was fired by an
unknown person. As police attempted to locate
21 the shooter and to clear the crowd, a fight
occurred among lingering patrons near the front
22 door at the licensed premises.
23 9. On January 3, 1999, at approximately 12:30
a.m., a minor entered an area of the licensed
24 premises prohibited to underaged persons. The
minor consumed alcoholic beverages. The minor
25 had another person=s identification, but the
Page 5 of 27 - FINAL ORDER
photograph on the identification bore little
1 resemblance to the minor.
2 10. On January 10, 1999, at approximately 2
a.m., a female patron was removed from the
3 licensed premises by Licensees= employees for
causing a disturbance. When the female patron=s
4 boyfriend, also a patron, exited the licensed
premises, the female patron pushed the boyfriend
5 into the wall outside. Licensees= employees
separated the two patrons.
/ / / / /
7 The female patron was visibly intoxicated,
displaying poor balance, slurred speech, and
8 obviously impaired judgement. The male patron
was also extremely intoxicated, with a strong
9 odor of alcoholic beverages on his breath, red,
glassy and bloodshot eyes, poor balance, and
10 extremely slurred speech.
11 11. On January 30, 1999, at approximately 1:36
a.m., there was a fight inside the licensed
12 premises involving at least one patron. A person
wearing a red shirt came into the bar and yelled
13 at a patron standing next to the bar. A
fistfight ensued. Other patrons attempted to
14 break up the fight.
15 The man in the red shirt left and came back into
the licensed premises with a gun, shooting
16 several times into the crowd of people. The
other patron involved in the fistfight pulled a
17 gun out of his waistband and returned gunfire,
shooting the front window and a wall.
As police arrived to investigate the gunfire,
19 they observed several patrons leaving the
licensed premises. Some of the patrons stumbled
20 and had to be carried or helped to walk due to
their high level of intoxication.
While police investigated the gunfire, patrons
22 remaining inside the licensed premises were
hostile to the police. The police instructed
23 Licensee Hootman to make all of the patrons
milling around leave the bar.
Page 6 of 27 - FINAL ORDER
1 Based on the preponderance of the evidence in the record at the
2 time the Immediate Suspension Order was issued, there was not probable
3 cause to believe that the following incidents involved patrons or
4 their activities in the immediate area of the premises related to the
5 sale and service of alcohol: four persons involved in a fight on June
6 1, 1999; a person with a gun on July 23, 1998; a domestic assault on
7 December 19, 1998; four persons involved in a fight on January 30,
8 1999; and a person attacking a police officer on January 30, 1999.
10 The Commission has previously concluded that seven problem
11 incidents in one year, including three assaults or fights outside the
12 licensed premises involving patrons, establish a history of serious
13 and persistent problems. The Commission determined that the
14 seriousness of violent incidents distinguished the situation from a
15 history of nonviolent incidents. Headless Horseman, OLCC-92-L-016,
16 June 1993.
17 Based on the preponderance of the evidence available to the OLCC
18 at the time the Immediate Suspension Order in these matters was
19 issued, the Commission concludes there was probable cause to believe
20 that eleven incidents, including approximately ten fights or assaults,
21 occurred within a period of approximately eight months. This history
22 of serious and persistent problems would constitute a violation of ORS
23 471.315(1)(c) and is a basis for the Commission to cancel or suspend
24 the liquor license.
25 The Commission=s penalty schedule rule, OAR 845-006-0200,
Page 7 of 27 - FINAL ORDER
1 provides that the penalty for a first Category I violation within a
2 two-year period is license cancellation. A violation of
3 ORS 471.315(1)(c)(history of serious and persistent problems) is a
4 Category I violation. See Rastafarian Private Club, OLCC-90-V-059,
5 April 1991.
6 The Commission concludes that at the time the Immediate
7 Suspension Order was issued, there was probable cause to believe from
8 the evidence available to the agency that there were grounds for
9 license cancellation under the Commission=s usual procedures.
10 b. Serious Danger to the Public
11 ORS 183.430(2) provides that the Commission may suspend a license
12 on an emergency basis when the Commission finds that continued
13 operation of the licensed premises poses a serious danger to the
14 public health and safety.
15 The Commission has held that for an Immediate Suspension to be
16 appropriate, a connection must be shown between the danger found and
17 the privilege to sell and permit the consumption of alcoholic liquor.
18 The Commission determined that assaults, robberies, shootings, and
19 other illegal activities in violation of the Commission=s rules were
20 related to the exercise of the license privilege. The Commission
21 determined that these types of incidents represented a direct,
22 immediate, and serious danger to the public health and safety. Tacoma
23 Café, OLCC-86-ES-001, August 1987.
24 The record shows there was probable cause to believe that within
25 approximately eight months, approximately ten fights or assaults
Page 8 of 27 - FINAL ORDER
1 occurred involving patrons either inside the licensed premises or in
2 the immediate vicinity. There were also two incidents involving
3 minors consuming alcoholic beverages in the licensed premises, one
4 incident of noisy patron conduct, a robbery and assault of a patron in
5 the restroom, and one incident of a patron and another person fighting
6 and exchanging gunfire inside the licensed premises.
7 Based on the above, the Commission concludes that the number and
8 frequency of violent incidents at the premises and involving patrons
9 in the immediate vicinity shows that the Licensees were not able to
10 control the serious problems involving patrons in and around the
11 premises. Therefore, the Commission concludes that the acts and
12 omissions of the Licensees pose a serious danger to the public health
13 and safety.
14 c. Appropriate Procedures
15 The record in this case does not indicate that the Commission did
16 not follow appropriate procedures in issuing the Immediate Suspension
17 Order. Based on this record, the Commission concludes the appropriate
18 procedures were followed in issuing the Notice and Order of Immediate
19 License Suspension and Proposed License Cancellation, dated February
20 3, 1999, and the Amended Notice, dated May 18, 1999. (Exhibits B1 and
22 d. Changed Circumstances
23 Under ORS 183.430, the Commission must address whether
24 circumstances at the time of the hearing justify confirmation,
25 alteration, or revocation of the Immediate Suspension Order.
Page 9 of 27 - FINAL ORDER
1 The Commission has concluded that when a licensee fails to
2 establish a change in circumstances that would warrant lifting the
3 Immediate Suspension Order pending the issuance of a Final Order, the
4 Immediate Suspension Order should be confirmed and the suspension
5 should remain in effect until the Final Order is issued concerning
6 license cancellation. Ace=s Yellow Rose Saloon, OLCC-91-V-051ES
7 August 1991.
8 The record indicates that the licensed premises has been closed
9 since the Immediate Suspension Order was issued by the Commission.
10 The record in this case does not indicate that should the
11 licensed premises reopen, Licensees would be capable of stopping the
12 violent incidents involving patrons in and around the licensed
13 premises. There is nothing in the record to indicate that there are
14 changed circumstances that would warrant the Commission=s lifting the
15 Immediate Suspension Order, pending the issuance of the Final Order in
16 these matters.
18 The Commission rules that the Immediate Suspension Order should
19 be confirmed. The Order will remain in effect until a Final Order
20 concerning the pending license cancellation is issued and becomes
22 II. HISTORY OF SERIOUS AND PERSISTENT PROBLEMS
(1) The Oregon Liquor Control Commission may
23 cancel or suspend any license issued under this
chapter or ORS chapter 472, or impose a civil
24 penalty in lieu of or in addition to suspension
as provided by ORS 471.322, if it finds or has
25 reasonable ground to believe any of the following
Page 10 of 27 - FINAL ORDER
to be true:
1 . . . .
2 (c) That these is a history of serious and
persistent problems involving disturbances, lewd
3 or unlawful activities or noise either in the
premises or involving patrons of the
4 establishment in the immediate vicinity of the
premises if the activities in the immediate
5 vicinity of the premises are related to the sale
or service of alcohol under the exercise of the
6 license privilege. Behavior which is grounds for
cancellation or suspension of a license under
7 this section, where so related to the sale or
service of alcohol, includes, but is not limited
8 to obtrusive or excessive noise, music or sound
vibrations; public drunkenness; fights;
9 altercations; harassment or unlawful sales;
alcohol or related litter; trespassing on private
10 property; and public urination. Mitigating
factors include a showing by the licensee that
11 the problems are not serious or persistent or
that the licensee has demonstrated a willingness
12 and ability to control adequately the licensed
premises and patrons= behavior in the immediate
13 vicinity of the premises which is related to the
licensee=s sale or service of alcohol under the
14 licensee=s exercise of the license privilege.
Findings of Fact
1. Growth Resources Inc. and Lowell Hootman, president, have
held a Dispenser Class A (DA) license at Mulligan=s, 210 SW Yamhill,
Portland, Oregon, at all times relevant to the Findings of Fact below.
The current license expired on June 30, 1999. At the time of the
hearing on June 3, 1999, Licensees had not yet applied for renewal of
the DA license.
2. On February 3, 1999, the Regulatory Program issued Licensees
Page 11 of 27 - FINAL ORDER
1 a Notice and Order of Immediate License Suspension and Proposed
2 License Cancellation. The Regulatory Program recommended that the DA
3 license be canceled because there is a history of serious and
4 persistent problems either in the premises or involving patrons of the
5 establishment in the immediate vicinity of the premises and the
6 activities in the immediate vicinity of the premises are related to
7 the sale and service of alcohol under the exercise of the license
8 privilege, in violation of ORS 471.315(1)(c).
9 The Regulatory Program issued an Amended Notice and Order of
10 Immediate License Suspension and Proposed Cancellation on May 18,
12 3. Licensees made a timely request for hearing.
13 / / / / /
14 4. The licensed business is located in downtown Portland,
15 Oregon, on the corner of SW Yamhill Street and SW Second Avenue. The
16 front door is located on SW Yamhill Street. There is an exit-only
17 door located on SW Second Avenue.
18 Yamhill Street is closed off to vehicle traffic in front of the
19 licensed premises. The MAX light rail line runs through the area in
20 front of the licensed premises, stopping service at approximately 2:30
21 a.m. The area in front of the licensed premises is wide open and is
22 used by many passersby.
23 5. On a month-to-month basis, beginning in August 1998,
24 Licensees contracted with V.I.P. to provide music entertainment
25 several times per week. V.I.P. also provided persons for security
Page 12 of 27 - FINAL ORDER
1 duties, including checking identification at the door, checking for
2 visibly intoxicated persons in order to exclude them from the licensed
3 premises, and collecting a cover charge. The security persons
4 provided by V.I.P. were treated and paid as employees of Licensees.
5 6. There are other businesses with OLCC licenses located
6 nearby, including The Lotus, Formosa Harbor/La Grande Familia,
7 Paddy=s, and Fernando=s Hideaway. None of these licensed premises
8 have significant problems with violent incidents involving patrons.
9 The Lotus, Formosa Harbor/La Grande Familia, and Fernando=s Hideaway
10 all have live music on weekends.
11 History of Serious and Persistent Problems
12 7. On June 1, 1998, at approximately 8:40 p.m., a patron was
13 visibly intoxicated in public in the immediate vicinity of the
14 licensed premises. The patron had red, watery eyes and an odor of
15 alcoholic beverages coming from his breath and about his person. The
16 patron argued with other people on the street near The Yamhill Pub.
17 The patron struggled with the police when they attempted to take
18 him into protective custody to transport him to a detoxification
20 8. On July 23, 1998, at approximately 1:52 a.m., approximately
21 three or four fistfights among patrons broke out in front of the
22 licensed premises. These fistfights occurred as the licensed premises
23 was closing and patrons were leaving the area.
24 9. On August 2, 1998, at approximately 2:40 a.m., approximately
25 30 patrons were on SW Yamhill Street near the licensed premises after
Page 13 of 27 - FINAL ORDER
1 the bar was closing. Many patrons were yelling and shouting and
2 appeared to be angry. Some of the patrons yelled and cursed at police
3 officers who were observing the crowd. The police officers believed a
4 fight among patrons might occur.
5 10. On August 15, 1998, at approximately 11 p.m., there was a
6 crowd of approximately 75 to 100 patrons waiting to enter the licensed
7 premises. Some patrons in the crowd shoved, pushed, and argued with
8 security employees and with Licensees= manager, who were at the door
9 checking identification and collecting money for a cover charge.
10 Licensees= employees had to hold the door shut to prevent patrons from
11 entering without paying the cover charge and without having their
12 identification checked.
13 11. On October 4, 1998, at approximately 1 a.m., two patrons
14 fought outside of the licensed premises. The female patron obtained a
15 small bloody scratch on her chest, a slight smear of blood on her left
16 cheek, and a torn earlobe that was bleeding slightly. The female
17 patron would not make a statement to the police about what had
18 occurred. The male patron, the female patron=s boyfriend, stated that
19 the female patron had kicked him in the shin, causing his shin to
21 12. On October 25, 1998, at approximately 1:45 a.m., an argument
22 between two patrons regarding their gang affiliations started inside
23 the licensed premises. Each of the patrons threatened to get a gun.
24 After the patrons left the licensed premises, while they were still in
25 the immediate area, one of the patrons yelled his Agang set@ and
Page 14 of 27 - FINAL ORDER
1 displayed gang hand signs, intending to provoke a violent response. A
2 police officer arrested the patron for Disorderly Conduct.
3 13. On November 29, 1998, at approximately 12:45 a.m., a patron
4 hit another patron in the face while inside the licensed premises.
5 The assailant was the victim=s boyfriend. Licensees= security
6 employees made both patrons leave the licensed premises.
7 A minor patron, Markisha Strickland, witnessed the assault.
8 Minor Strickland consumed alcoholic beverages inside the licensed
9 premises. She was born on May 25, 1978, and she was 20 years of age
10 on November 29, 1998. The record does not indicate whether she showed
11 any false identification to gain entry to, or service of alcoholic
12 beverages in, the licensed premises.
13 14. On December 13, 1998, at approximately 2 a.m., a patron was
14 assaulted by three other patrons in the men=s rest room of the
15 licensed premises. The three assailants stole approximately $40.00
16 from the victim.
17 As police officers arrived to investigate the assault and
18 robbery, a large crowd was flowing outside from the licensed premises.
19 Police officers asked the patrons milling about to leave the area.
20 Some patrons ignored the police requests, while other patrons argued
21 with the police. Some patrons ignored the security employees requests
22 that patrons leave the area.
23 While the crowd of patrons was leaving the area, a patron was
24 assaulted near the licensed premises and sustained an injury to his
25 face. A gunshot was fired by an unknown person in the immediate
Page 15 of 27 - FINAL ORDER
1 vicinity of the licensed premises. Patrons ran Ain all directions@ as
2 a result of the gunfire.
3 As police were investigating these incidents, a fight among
4 patrons occurred near the front door of the licensed premises.
5 15. On January 3, 1999, a minor patron, Kendal Duffy, consumed
6 alcoholic liquor inside the licensed premises. Minor Duffy=s birth
7 date was November 30, 1979, and she was 19 years of age on January 3,
8 1999. She possessed photo identification belonging to another person,
9 but she did not resemble the photograph.
10 16. On January 10, 1999, at approximately 2:25 a.m., a female
11 patron was removed from the licensed premises by security employees
12 after the patron created a disturbance. When the female patron=s
13 boyfriend, who was also a patron, came out of the licensed premises,
14 the female patron pushed him into the outside wall. Licensees=
15 security employees separated the two patrons.
16 Both patrons were visibly intoxicated in public. The female
17 patron displayed poor balance, slurred speech, and obviously impaired
18 judgement. The male patron had a strong odor of alcoholic beverages
19 on his breath, red, glassy and bloodshot eyes, poor balance, and
20 extremely slurred speech.
21 17. On January 30, 1999, at approximately 1:36 a.m., a person
22 wearing a red shirt came into the licensed premises, yelled at a
23 patron standing by the bar, and got into a fistfight with the patron,
24 resulting in an injury to the patron=s face. Other persons broke up
25 the fight. The person in the red shirt left the licensed premises and
Page 16 of 27 - FINAL ORDER
1 came back in with a gun. He shot approximately four or five times
2 into the crowd of people inside the licensed premises.
3 The preponderance of the evidence in the record does not
4 establish whether the patron involved in the fistfight pulled out a
5 gun and returned the gunfire.
6 As police officers arrived to investigate the shooting, patrons
7 were leaving the licensed premises. Many of the patrons stumbled and
8 had to be carried or helped due to their high level of alcohol
10 While police officers investigated the incident, some patrons
11 still inside the licensed premises verbally confronted the officers
12 and cursed at them. A police officer ordered Licensee Hootman to
13 remove the remaining patrons in order to provide a safer environment
14 for the officers to conduct their investigation.
16 The following are discussed below: the Commission=s Temporary
17 Policy concerning noisy conduct; and whether the shooter in the
18 January 30, 1999, incident was a Apatron.@
19 a. Patron Noise
20 The Regulatory Program charged that on August 2, 1998, at
21 approximately 2:40 a.m., patrons were yelling on SW Yamhill Street.
22 This incident was considered part of the history of serious and
23 persistent problems.
24 On May 29, 1999, the Commission adopted a Temporary Policy
25 modifying how its staff will deal with noise created by patrons in the
Page 17 of 27 - FINAL ORDER
1 immediate vicinity of a licensed business. The Commission determined
2 that it will hold licensees more accountable for noise from inside a
3 licensed premises than for external, patron-caused noise.
4 The Commission will examine whether there is a pattern of persistent
5 noisy conduct with which the licensee has not dealt. The Commission
6 will also examine whether patron noise violates a local noise
7 ordinance or is unusual in the specific geographic area around the
8 licensed premises.
9 The record in this matter includes one incident of patrons
10 shouting in the immediate vicinity of the licensed premises. Because
11 the record does not indicate that there was a pattern of persistent
12 noisy conduct with which the Licensees had not dealt, that the noise
13 violated local noise ordinances, or that the patron noise was unusual
14 for the area around the licensed premises, the Commission has given
15 little weight to the noisy conduct by patrons on August 2, 1998.
16 b. Shooter Not a APatron@
17 At the hearing, Licensees argued that in the January 30, 1999,
18 incident, the shooter in the red shirt was not a Apatron.@ Licensee
19 Hootman testified that the shooter came into the licensed business and
20 started shooting without warning. He also testified that the shooter
21 was not involved in the fistfight and was not inside the licensed
22 premises prior to the shooting. Based on Licensee Hootman=s demeanor
23 and on all the evidence in the record, including the other witnesses=
24 statements and the physical evidence found by the police, the
25 Commission does not find Licensee Hootman=s testimony on this issue
Page 18 of 27 - FINAL ORDER
1 persuasive. The Commission is persuaded that the shooter was involved
2 in a fistfight inside the licensed premises prior to leaving the
3 building and returning with a gun. The Findings of Fact reflect this
5 The Commission has previously considered incidents in which a
6 patron or licensee was a crime victim as part of a history of serious
7 and persistent problems. See Handy Food Mart, OLCC-91-L-020, December
8 1992 (shoplifting and robberies constituted part of a history of
9 serious and persistent problems).
10 Whether or not the shooter was inside the premises prior to the
11 shooting is not determinative of whether the incident is part of the
12 history of serious and persistent problems. The record indicates that
13 the other person involved in the fistfight was a patron and that the
14 shooting occurred inside the licensed business. Thus, the incident
15 would still be part of the history of serious and persistent problems
16 at Mulligan=s.
17 Conclusions of Law
18 ORS 471.315(1)(c) provides that it is a violation if there is a
19 history of serious and persistent problems involving disturbances,
20 unlawful activities, or noise either inside the licensed premises or
21 involving patrons in the immediate vicinity, if the activities are
22 related to the sale and service of alcohol under the exercise of the
23 license privilege. The statute specifically provides that patron
24 behavior that is grounds for canceling or suspending a license
25 includes excessive noise, public drunkenness, fights, and
Page 19 of 27 - FINAL ORDER
1 altercations. The statute also provides that mitigating factors
2 include a showing that the problems are no longer serious or
3 persistent or that the licensee has a willingness and ability to
4 control adequately the licensed premises and patrons= behavior in the
5 immediate vicinity.
6 The Commission has determined that an incident will be considered
7 as being related to the exercise of the license privilege when the
8 Commission can tie the person involved to the desire to go into the
9 licensed premises so the licensee can serve them. The Commission will
10 count these incidents whether the persons consumed alcoholic liquor or
11 not. The Commission inferred that the persons were coming to the
12 premises because the licensee had a liquor license and for the purpose
13 of consuming alcoholic liquor. The Commission distinguished this from
14 persons who were simply in the vicinity of the licensed premises when
15 the Commission could not say why they were there, what they were doing
16 there, or whether they stopped to visit with a friend and were going
17 to move on. La Brisa, OLCC-91-L-037, February 1993.
18 The Commission has previously determined that incidents occurring
19 inside the licensed premises do not have to be alcohol-related to be
20 relevant in determining whether there is a history of serious and
21 persistent problems. The Commission did not weigh all incidents
22 inside the licensed premises equally. The Commission determined that
23 it would give significant weight to severe crimes, such as those
24 involving violence or the threat of violence, unless the circumstances
25 showed that the incident was isolated or happenstance. The Commission
Page 20 of 27 - FINAL ORDER
1 determined that it would give little weight to less severe crimes,
2 such as shoplifting, unless they were shown to be alcohol-related.
3 Handy Food Mart, supra.
4 The Commission has found a history of serious and persistent
5 problems when seven problem incidents occurred during a one-year
6 period, including three assaults or fights outside of the licensed
7 premises involving patrons, two instances of patrons urinating in a
8 public area, one instance of a patron damaging shrubbery and one
9 instance of a patron who had been evicted from the licensed premises
10 returning and assaulting a bartender. The Commission found that the
11 number of fights occurring inside the premises or involving patrons in
12 the immediate area distinguished the history of serious and persistent
13 problems from a series of less serious incidents. Headless Horseman,
15 The record shows that eleven incidents, including approximately
16 ten fights, occurred inside Mulligan=s or involved patrons in the
17 immediate area within a time period of approximately eight months.
18 The incidents were severe because several patrons were injured and
19 because in one incident, gunshots were fired inside the licensed
20 premises when patrons and employees were present. One patron was
21 assaulted and robbed in the rest room of the licensed business. The
22 record also indicates that two minors consumed alcoholic beverages
23 inside the licensed business and that patrons were visibly intoxicated
24 in public on several occasions.
25 The Commission concludes that the number and severity of
Page 21 of 27 - FINAL ORDER
1 incidents at Mulligan=s establish a history of serious and persistent
2 problems pursuant to ORS 471.315(1)(c). The Commission concludes that
3 Licensees violated ORS 471.315(1)(c).
4 III. PENALTY
5 Findings of Fact
6 17. The Commission has considered the above Findings of Fact
7 with respect to this issue.
8 18. The Regulatory Program recommends that the license be
9 canceled for the violation of ORS 471.315(1)(c).
10 19. Licensees received an Authority to Operate on October 10,
11 1997. Licensees have had no OLCC violations since that time.
12 20. On August 20, 1998, an intervention meeting was held between
13 Licensee Hootman, personnel from the City of Portland and Portland
14 Police Bureau, and OLCC Inspector Hartwell. At this meeting, Licensee
15 Hootman agreed to make the following changes in the operation of the
16 licensed premises:
a. Dress code: no caps, sneakers, gang
18 b. All patrons will be searched;
19 c. Licensee will hire security on Wednesday,
Friday, and Saturday evenings;
d. Licensee will charge a cover charge of
21 $5.00 at 9:00 p.m., $10.00 at 10:00 p.m.
and $20.00 at l:00 a.m.;
/ / / / /
23 e. ALast Call@ for drinks will be at 1:55
f.Music: at 1:30 p.m. (sic) The music
25 will be changed to slower/quieter
Page 22 of 27 - FINAL ORDER
g. Lights: Premises will turn on lights
2 inside premises at 2:15 a.m. to
encourage patrons to leave in a
3 mannerly order (sic);
4 h. Patrons outside premises: Licensee
will provide a roped area for a line
5 to form for the patrons waiting
outside the premises. Security will
6 monitor patrons standing in line and
A86" patrons who are involved in
8 i. Capacity: Licensee will advise outside
patrons to leave if the premises is at
9 capacity; and
10 j. Checking identification: All employees
will attend an identification checking
11 class offered by OLCC or Licensee will
make arrangements for a District Inspector
12 to conduct an identification checking class
at the premises.
21. After the intervention meeting, Inspector Hartwell went to
the licensed premises to conduct an identification checking class
arranged by Licensee Hootman. Only two of Licensees= employees showed
up for the class. Licensee Hootman did not attend. Inspector
Hartwell canceled the identification checking class due to the lack of
Inspector Hartwell also monitored Licensees= other compliance
steps. Licensees= security employees did not use a wand to Asearch@
all patrons. Many patrons were not searched when they left and re-
entered the licensed premises. Security employees checking
identification did not take the time to properly check it. One
Page 23 of 27 - FINAL ORDER
1 security employee let in several patrons without checking their
2 identification or collecting the cover charge.
3 21. On January 15, 1999, Licensee Hootman entered into a
4 Compliance Plan to address problem incidents at the licensed premises.
5 In addition to the compliance steps set out in the above Findings of
6 Fact, Licensees agreed to take the following steps:
a. Keep an incident log to include any
7 patrons A86'd", cut off or refused
service, and any requests for police
8 assistance, and any incidents of
b. A barred A86" list would be kept;
c. All employees would attend an OLCC
11 identification class in the month of
d. The Licensee will facilitate a better
13 working relationship with Portland
Police Bureau and encourage walk-
14 throughs by Portland Police Bureau
e. All patrons would be scanned with a wand.
16 Licensees will permanently A86" any patron
attempting to enter the premise with a
18 f. All patrons will be scanned/searched
when they reenter the premises; and
g. Security employees will be clearly
22 22. Licensees posted two lists of rules of conduct for patrons.
23 / / / / /
24 / / / / /
25 / / / / /
Page 24 of 27 - FINAL ORDER
1 Conclusions of Law
2 The Commission has treated a violation of ORS 471.315(1)(c)
3 (history of serious and persistent problems) as a Category I
4 violation. Rastafarian Private Club, supra. The standard penalty for
5 the first Category I violation within a two-year period is
6 cancellation of the liquor license. OAR 845-006-0200. This is
7 Licensees= first Category I violation for a history of serious and
8 persistent problems within two years. Absent aggravating or
9 mitigating circumstances, cancellation of the license would be the
10 appropriate penalty.
11 The Regulatory Program staff did not charge any aggravating
12 circumstances in this matter.
13 Mitigating Circumstances
14 ORS 471.315(1)(c) provides that mitigating factors include a
15 showing that the problems are no longer serious or persistent or that
16 the licensee has demonstrated a willingness and ability to control
17 adequately the licensed premises and patrons= behavior in the
18 immediate vicinity.
19 The record indicates that the licensed premises has been closed
20 since February 3, 1999, when the Commission issued an Order of
21 Immediate License Suspension. Thus, Licensees are unable to show that
22 they have operated the premises without additional problems.
23 The record indicates that Licensees demonstrated some willingness
24 to control problems inside the licensed premises and involving patrons
25 in the immediate area, as demonstrated in the Findings of Fact, by
Page 25 of 27 - FINAL ORDER
1 hiring an outside company to provide security services, posting rules
2 of conduct for patrons, and entering into compliance plans.
3 Nevertheless, the record indicates that Licensees= efforts were not
4 effective and Licensees failed to follow through with some critical
5 elements of the compliance plans, including an identification checking
6 class for all employees. Licensees= security employees were not
7 consistent in searching patrons for weapons, searching patrons who
8 left and returned, checking identification, and collecting the cover
9 charge. Extremely serious incidents continued to occur, including a
10 person leaving and reentering the licensed premises with a gun and
11 shooting into the crowd. On two occasions when police were
12 investigating serious crimes at the licensed business, groups of
13 patrons were verbally hostile to the police officers and refused to
14 leave the area as the police officers had requested.
15 Based on this record, the Commission concludes that Licensees
16 have failed to show that they have the willingness and ability to
17 control the licensed premises and patrons= activity in the immediate
18 vicinity related to the sale and service of alcoholic liquor.
19 The Commission concludes that the appropriate penalty is license
20 cancellation. Because, however, Licensees= DA license is no longer in
21 existence, Licensees should receive a Letter of Reprimand for the
22 violation of ORS 471.315(1)(c)1. See Rod=s Old Town, OLCC-92-V-073,
The Commission takes official notice of its licensing records
which indicate that Licensees did not apply to renew their license and
24 it expired on June 30, 1999.
Page 26 of 27 - FINAL ORDER
1 February 1993.
2 / / / / /
3 ULTIMATE CONCLUSIONS OF LAW
4 The Commission had probable cause to issue an Immediate
5 Suspension Order because the Commission had probable cause to believe
6 that there was a serious danger to the public health and safety at the
7 licensed premises due to a history of serious and persistent problems
8 under ORS 471.315(1)(c).
9 The Immediate Suspension Order should be confirmed. There are no
10 changes in circumstances that would warrant the alteration or
11 revocation of the Order.
12 Licensees violated ORS 471.315(1)(c) between June 1, 1998, and
13 January 30, 1999, because there was a history of serious and
14 persistent problems inside the premises or involving patrons in the
15 immediate vicinity of the premises connected to the sale and service
16 of alcohol under the exercise of the license privilege.
17 Because Licensees= DA license is no longer in existence, a Letter
18 of Reprimand is the appropriate penalty.
19 / / / / /
20 / / / / /
21 / / / / /
22 / / / / /
23 / / / / /
24 / / / / /
25 / / / / /
Page 27 of 27 - FINAL ORDER
1 / / / / /
2 / / / / /
3 / / / / /
4 FINAL ORDER
5 The Commission orders that former Licensees, Growth Resources
6 Inc. and Lowell Hootman, President, dba Mulligan=s, 210 SW Yamhill,
7 Portland, Oregon, be issued a LETTER OF REPRIMAND for the violation
8 proved above.
9 It is further ordered that notice of this action, including the
10 reasons for it, be given.
11 Dated this 24th day of August, 1999.
/s/ J. Bracanovich for /s/ Karen S. Gregory for
13 Susan C. Hall Pamela S. Erickson
Administrative Law Judge Administrator
14 Hearings Division OREGON LIQUOR CONTROL COMMISSION
Mailed this 26th day of August, 1999.
THIS ORDER IS EFFECTIVE 10 DAYS AFTER THE MAILING DATE.
NOTICE: You are entitled to judicial review of this Order. Judicial
18 review may be obtained by filing a petition for judicial
review within 60 days from the service of this Order.
19 Judicial review is pursuant to the provisions of ORS Chapter
Page 28 of 27 - FINAL ORDER