Mulligans FO 99

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					 1
                       BEFORE THE LIQUOR CONTROL COMMISSION
 2                            OF THE STATE OF OREGON

 3
     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            )
10

11                                 INTRODUCTION

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

25   policy.
     Page 1 of 27 - FINAL ORDER
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 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,

 5   1999.

 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:

11                                     WITNESSES

12   FOR THE COMMISSION:                 Jeanette Hartwell and Matthew Engen.

13   FOR THE LICENSEES:                  Moriah Jones and Lowell Hootman.

14                                       ISSUES

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
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               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).

 7
          In evaluating whether to confirm, alter, or revoke an Immediate
 8
     Suspension Order under ORS 183.430(2), the Commission has considered
 9
     the following:
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

18
               d.     Whether circumstances at the time of the
19
                      hearing justify confirmation, alteration,
20
                      or revocation of the Immediate Suspension
21
                      Order.   ORS 183.430; El Mirador Mexican
22
                      Restaurant, OLCC-91-V-150ES, December 1991.
23
     a. Probable Cause
24
          Based on the preponderance of the evidence available to the
25
     Page 3 of 27 - FINAL ORDER
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 1   Commission at the time the Immediate Suspension Order was issued,

 2   there was probable cause to believe that the following incidents

 3   occurred:
                 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.
 9
                 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.
15
                 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.
20
                 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
                 intoxicated.
23
                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
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               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
               Conduct.
 3
               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
               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.
13
               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
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                 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.
 6
     / / / / /
 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.
18
                 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.
21
                 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.
24

25
     Page 6 of 27 - FINAL ORDER
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 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.

 9   Conclusion

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
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 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
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 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

21   B2.)

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
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 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.

17                                     RULING

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

21   effective.

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
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                  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.
                  ORS 471.315(1)(c).
15

16
     Findings of Fact
17
     Background
18
           1.     Growth Resources Inc. and Lowell Hootman, president, have
19
     held a Dispenser Class A (DA) license at Mulligan=s, 210 SW Yamhill,
20
     Portland, Oregon, at all times relevant to the Findings of Fact below.
21
          The current license expired on June 30, 1999.     At the time of the
22
     hearing on June 3, 1999, Licensees had not yet applied for renewal of
23
     the DA license.
24
           2.     On February 3, 1999, the Regulatory Program issued Licensees
25
     Page 11 of 27 - FINAL ORDER
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 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,

11   1999.

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
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 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

19   program.

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
26
 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

20   hurt.

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
26
 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
26
 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
26
 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

 9   intoxication.

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.

15   Discussion

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
26
 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
26
 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

 4   conclusion.

 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
26
 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
26
 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,

14   supra.

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
26
 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
17                   colors;

18                 b.   All patrons will be searched;

19                 c.   Licensee will hire security on Wednesday,
                        Friday, and Saturday evenings;
20
                   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.;
22
     / / / / /
23                 e.   ALast Call@ for drinks will be at 1:55
                        a.m.;
24
                   f.Music: at 1:30 p.m. (sic) The music
25                   will be changed to slower/quieter
     Page 22 of 27 - FINAL ORDER
26
                       music;
 1
                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
 7                     disorder;

 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.
13

14
          21.   After the intervention meeting, Inspector Hartwell went to
15
     the licensed premises to conduct an identification checking class
16
     arranged by Licensee Hootman.    Only two of Licensees= employees showed
17
     up for the class.   Licensee Hootman did not attend.     Inspector
18
     Hartwell canceled the identification checking class due to the lack of
19
     participants.
20
          Inspector Hartwell also monitored Licensees= other compliance
21
     steps.   Licensees= security employees did not use a wand to Asearch@
22
     all patrons.    Many patrons were not searched when they left and re-
23
     entered the licensed premises.    Security employees checking
24
     identification did not take the time to properly check it.      One
25
     Page 23 of 27 - FINAL ORDER
26
 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
                     unlawful activity;
 9
                 b.   A barred A86" list would be kept;
10
                 c.   All employees would attend an OLCC
11                    identification class in the month of
                      January 1999;
12
                 d.   The Licensee will facilitate a better
13                    working relationship with Portland
                      Police Bureau and encourage walk-
14                    throughs by Portland Police Bureau
                      officers;
15
                 e.   All patrons would be scanned with a wand.
16                    Licensees will permanently A86" any patron
                      attempting to enter the premise with a
17                    weapon;

18               f.   All patrons will be scanned/searched
                      when they reenter the premises; and
19
                 g.   Security employees will be clearly
20                    identified.

21

22        22.    Licensees posted two lists of rules of conduct for patrons.

23   / / / / /

24   / / / / /

25   / / / / /
     Page 24 of 27 - FINAL ORDER
26
 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
26
 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,

23        1
           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.
25
     Page 26 of 27 - FINAL ORDER
26
 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
26
 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.

12
     /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

15
     Mailed this 26th day of August, 1999.
16
     THIS ORDER IS EFFECTIVE 10 DAYS AFTER THE MAILING DATE.
17
     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
                 183.
20

21

22

23

24

25
     Page 28 of 27 - FINAL ORDER
26

				
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