> Meetings & Minutes > Commissioners' Minutes > BCC Minutes for 04/14/08  

 MINUTES OF THE BOARD OF COUNTY COMMISSIONERS

 

Monday, APRIL 14, 2008

 

EXECUTIVE SESSION

 

The Board of County Commissioners met at 10:30 a.m. with Frank Lancaster, County Manager.  Chair Gibson presided, and Commissioner Rennels was present.  Also present were:  Neil Gluckman, Commissioners' Office; and Carol Block, Finance Department.

 

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners go into Executive Session to discuss negotiations with the Town of Estes Park, as outlined in 24-6-402 (4) (e) C.R.S.

 

Motion carried 2-0.

 

The Executive Session ended at 11:10 a.m., with no action taken.

 

 

LAND USE HEARING

(#195)

 

 

The Board of County Commissioners met at 3:00 p.m. with Matt Lafferty, Principal Planner.  Chair Gibson presided, and Commissioner Rennels was present.  Also present were:  Toby Stauffer, Planning Department; Christie Coleman, Engineering Department; Doug Ryan, Environmental Health Department; Cindy Clay, Clerk & Recorder's Office; Jeannine Haag, Assistant County Attorney; and Gael Cookman, Deputy Clerk.

 

Chair Gibson opened the meeting with the Pledge of Allegiance and asked for public comment on the County Budget and Land Use Code.  No one from the audience addressed the Board regarding these topics. 

 

Chair Gibson then explained that the following item was on consent and would not be discussed unless requested by the Board, staff, or members of the audience: 

 

1.  CRYSTAL LAKES 13TH FILING LOTS 124-126 AND LOT 129 AMENDED PLAT/EASEMENT VACATION AND APPEAL - FILE #07-S2735:  This is a request for an amendment to the Crystal Lakes 13th Filing subdivision plat.  The purpose of this Amended Plat is to adjust the boundary line of Lots 124, and 126 to include portions of lot 125 into each adjacent lot. The first request includes vacation of two 20’ utility easements along the common interior lot lines and the addition of a 20’ utility easement along the new interior common lot line. All three lots are currently smaller than the minimum lot size for the zone district; however Lots 124 and 126 will increase in size with the amendment and decrease the non-conformity.

 

The second request is to amend the lot lines between Lots 126 and 129 to add 0.19 acres from Lot 129 to Lot 126. A 20’ utility easement will also be vacated along the common lot line and added to the new lot line. This request includes a lot size appeal to the minimum lot size of 2.5 acres in the E-Estate zone district, for the creation of the new Lot 129, see LULUC, Section 4.1.6.B.1.a. The new Lot 129 will decrease is size from 1.48 acres to 1.29 acres.

 

There have been no objections to the proposal by surrounding neighbors. The following Larimer County agencies have stated that they have no objections to this proposal: the Engineering Department Development Review Team; the Addressing Review Section; and the Code Compliance Section

Comments received from the Land Surveyor of the Larimer County Engineering Department identify several required corrections to the plat.

Comments received from the Larimer County Department of Health and Environment initially did not support the lot size appeal but upon further review with additional information, the Health Department can support of the Amended Plat of Lots 124, 125, and 126 and the Lot Size Appeal and Boundary Line Adjustment between Lots 126 and 129.

The proposed plat amendment to Crystal Lakes 13th Filing to reconfigure 3 lots, adding one lot, Lot 125, to the lots on either side of it, Lots 124 and 126, and vacation of two 20’ utility easements along the interior common lot lines will not result in any additional lots..  The Amended Plat will not adversely affect any neighboring properties or any County agency and the request meets the review criteria.  Staff finds that the Amended Plat request meets the requirements of the Larimer County Land Use Code.

The proposed lot size appeal and plat amendment to Crystal Lakes 13th Filing to reconfigure 2 lots, adding 0.19 Acres of Lot 126 to Lot 129, and also realign a 20’ utility easement along the common lot line will be consistent with the pattern of existing lots in the neighborhood.  The proposed lot should have sufficient area to support the intended use of the lot. Granting this appeal and plat amendment will not impair the intent and purpose of the code.

The Development Services Team recommends Approval of the Amended Plat of Lots 124, 125, 126, & 129 Crystal Lakes, 13th Filing and Utility Easement Vacations and Seaman Lot Size Appeal, File # 08-S2786, subject to the following conditions and authorization for the chair to sign the plat when the conditions are met and the plat is presented for signature:

 

1.   The Final Plat shall be recorded by October 14, 2008, or this approval shall be null and void.

2.   Prior to recordation of the Findings and Resolution the applicant shall provide the Larimer County Planning Department with a signed and notarized Lien Holder Signature form.

3.   Prior to the recordation of the Final Plat the applicant shall make the technical corrections requested by Dale Greer, Land Surveyor of the Larimer County Engineering Department.

 

M O T I O N

Commissioner Rennels moved that the Board of County Commissioners approve the consent agenda, as outlined above.

Motion carried 2-0.

 

2.  FRONTIER EQUINE MINOR SPECIAL REVIEW - FILE #08-Z1677:  This is a request for a Minor Special Review (MSR) approval to operate a livestock veterinary clinic and mobile service for equine care.  The applicants anticipate an average of 2 to 4 horse trailers per week coming to the site for equine treatment lasting up to 4 hours per visit.  The existing residence would provide office space for the business as well as the applicant’s primary residence.  The applicants will also operate a mobile veterinary clinic from a truck, where they would travel to other sites for the purpose of providing equine care.  The truck also serves as a mobile office.  The applicants are not proposing to have any signs for the business or any additional outside lighting, as visits would be restricted to daytime hours. 

 

Section 4.3.1 (Agricultural uses) in the Land Use Code provides the standards of approval for  Livestock Veterinary Clinics such as that proposed for this site.  In the Code, clinics must be a facility for the diagnosis, treatment and/or hospitalization of livestock.  Use of the Minor Special Review process is required for any livestock veterinary clinic/hospital that generates 50 or fewer vehicle trips on any day in the FA-1 Zone District.  The number of weekly visits described by the applicant is far below this number.  Based on the information provided, the request meets Land Use Code requirements for seeking Minor Special Review approval.  Site plan review is not required for agricultural uses as described in Section 4.3.1 (if the use is approved).  Finally, the property is located in the Horseshoe Park Subdivision and is surrounded by rural residential uses.

 

Planning Staff’s assessment is based on a review of the information provided by the applicants.  The project materials include limiting the number of animals to be cared for on a daily basis, and there are no anticipated signs or additional outdoor lighting requirements.  Based on the information provided, Planning Staff concludes the request meets the intent of the Land Use Code to allow for a Livestock Veterinary Clinic and mobile support services as a Minor Special Review use.

 

The applicants held a neighborhood meeting for this use on February 24, 2008, on site.  A copy of the neighborhood meeting information is attached to this report.  The comments provided are supportive of the request, though one concern was raised about impacts to the road, though this was not identified as an issue for the Engineering Department in their comments.  A letter in support of the request is attached to the neighborhood meeting report.  Planning Staff also received one letter from a neighboring property owner that asked for conditions of approval on the use based on compatibility issues.  The requests in the letter are addressed in the application materials.

The comments provided by the Code Compliance Staff indicate there are some outstanding building permit and inspection requirements for the site.  Completion of these requirements is not expected to be difficult and the information was sent to the applicants.  Finalizing these requirements is included as a recommended condition of approval.

 

The Engineering Department did not object to the request; however, they address the issue of the road impact fees, and note the proposed paved parking area must be done in a way that would not alter existing drainage patterns in the area.  This is not expected to be a problem and the Engineering Department supports the request.

 

The Health Department did not object to the request.  They advised the applicants to use a subsurface dispersal trench system in the treatment area to accept water from the floor drain, but otherwise had no concerns about the request.

 

The Land Use Code allows for Livestock Veterinary Clinics for sites in the FA-1 Zone District where the use will be located.  In the Code, a clinic must be a facility for the diagnosis, treatment and/or hospitalization of livestock.  Use of the Minor Special Review process is required for any livestock veterinary clinic/hospital that generates 50, or fewer, vehicle trips on any day.  As noted, the applicants have met this requirement.  In addition, there are no proposed signs or additional lighting, and the applicants will live in the residence on site.  The Development Services Team concludes the Frontier Equine business as described by the applicant is compatible with the surrounding residential uses in the Horseshoe Park Subdivision, and the request satisfies the Land Use Code requirements for a Minor Special Review. 

 

The Development Services Team findings are as follows:

1.  The proposed Livestock Veterinary Clinic and Mobile Veterinary Service at this site will be compatible with existing and allowed residential uses in the surrounding area.  There are no anticipated substantial adverse impacts on other property near the subject site.  

2.   The proposed Livestock Veterinary Clinic and Mobile Veterinary Service are consistent with the County Master Plan goals.

 

3.   The proposed Livestock Veterinary Clinic and Mobile Veterinary service can comply with all applicable requirements of this code.

4.   The recommendations of referral agencies have been considered. 

 

The Development Services Team recommends approval of the Frontier Equine Minor Special Review, File #08-Z1677, as a livestock veterinary clinic and mobile veterinary service on Lot #3 of the Horseshoe Park Subdivision, subject to the following conditions:

 

1.   The Site shall be developed consistent with the approved plan and with the information contained in the Frontier Equine Minor Special Review (File #08-Z1677) except as modified by the conditions of approval or agreement of the County and applicant.  The applicant shall be subject to all other verbal or written representations and commitments of record for the Frontier Equine Minor Special Review.

2.   The Findings and Resolution shall be a servitude running with the Property.  Those owners of the Property or any portion of the Property, who obtain title subsequent to the date of recording of the Findings and Resolution, their heirs, successors, assigns or transferees, and persons holding under applicants, shall comply with the terms and conditions of the Minor Special Review approval.

3.   This application is approved without the requirement for a Development Agreement.  In the event the applicant fails to comply with any conditions of approval, or fails to use the property consistent with the approved Minor Special Review, the applicant agrees that in addition to all other remedies available to County, County may withhold building permits, issue a written notice to applicant to appear and show cause why the Minor Special Review approval should not be revoked, and/or bring a court action for enforcement of the terms of the Minor Special Review.  All remedies are cumulative and the County’s election to use one shall not preclude use of another.  In the event County must retain legal counsel and/or pursue a court action to enforce the terms of this Minor Special Review approval, applicant agrees to pay all expenses incurred by County including, but not limited to, reasonable attorney’s fees.  County may conduct periodic inspections of the property and reviews of the status of the Minor Special Review as appropriate to monitor and enforce the terms of the Minor Special Review approval.

4.   The applicants shall pay all applicable fees, including permit fees and the Transportation Capital Expansion Fee, as shall apply to this use no later than July 14, 2008.

5.   The applicant shall sign a Disclosure Notice to advise potential lot buyers of the restrictions placed on the Minor Special Review no later than July 14, 2008.

6.   The applicant is limited to an average of up to four (4) on-site horses per week for treatment.

7.   The applicants will install a French drain that exits to the north of the barn and make other improvements to the site as described in the project materials contained in the file no later than April 14, 2009, being one year form the date of the Public Hearing.

8.   The applicants shall contact the Building Department no later than July 14, 2008, to finalize all outstanding building permit and inspection requirements, in a schedule to be determined by mutual agreement.

 

Mr. Lafferty displayed an aerial photo of the property and briefly explained the proposal as outlined above.  He noted that due to the limited services provided, the use is compatible with surrounding properties and also complies with the Land Use Code; therefore, staff is recommending approval of this application.  Chair Gibson questioned how manure removal would be accomplished.  Mr. Ryan stated that since most of the veterinary care will be performed off site, it is akin to home use, and they have not required manure or pasture plan.

 

Robert Stanley, applicant, addressed the Board.  He explained that there will be no overnight services provided and that typically the only horses that will be brought on site will be those that need to be evaluated for lameness. 

 

At this time Chair Gibson opened up the hearing for public comment and Larry Leeper addressed the Board.  Mr. Leeper stated his concerns for encouraging businesses to operate in residential areas, as it will increase dust and traffic.  Mr. Leeper also stated that he is concerned customers of this business will travel down the road he pays to maintain, which will cause further deterioration of the road and will impact him financially.

 

There was no further public comment.

 

Mr. Stanley stated that the road Mr. Leeper is speaking of is in need of repair; therefore, most of the customers will choose to take the main improved roads, as it is difficult to bring a horse trailer down a road that is bumpy and in need of repair.  Mr. Stanley also explained that he always encourages people to use the main improved roads when he gives directions to their facility.

 

Commissioner Rennels asked Mr. Ryan to explain the French drain, and then she thanked Mr. Stanley for directing the traffic onto the main improved roadways.  The Board agreed that the proposed business was appropriate for the area.

 

M O T I O N

Commissioner Rennels moved that the Board of County Commissioners approve the Frontier Equine Minor Special Review for a Livestock Veterinary Clinic and Mobile Veterinary Service subject to the conditions outlined above.

Motion carried 2-0.

 

The hearing recessed at 3:25 p.m.

 

LAND USE HEARING

(#196)

 

The Board of County Commissioners reconvened at 6:30 p.m. with Brenda Gimeson, Rural Land Use Center.  Chair Gibson presided, and Commissioner Rennels was present.  Also present were:  Neil Gluckman, Commissioners’ Office; Geniphyr Ponce-Pore, Rural Land Use Center; Doug Ryan, Environmental Health Department; Christie Coleman, Engineering Department; Cindy Clay, Clerk & Recorder’s Office; Jeannine Haag, Assistant County Attorney; and Gael Cookman, Deputy Clerk.

 

 

1.  MEADOWLARK ESTATES RURAL LAND USE PLAN -  #07-S2742:  This is a request for:  1) Variance to the requirement for project contiguity; Section 5.8.4.A.2; and 2)  Preliminary approval to divide 237 +/- acres into sixteen (16) lots with thirteen (13) total home sites (six existing) in the following manner:  Seven (7) new residential lots ranging in size from 3-6 acres in size, eight (8) Residual Lots, six that will contain a building envelope for residences and agricultural buildings (these six include the existing home sites and agricultural buildings), and one (1) Outlot for a small cooperative irrigation system.

This project was previously tabled from October 15, 2007, to January 14, 2008.  At that time, the applicant was not able to fully address the full list of items requested by the Board of County Commissioners at the October hearing, and the item was pulled from the agenda. At this time, all items requested from the October hearing have been provided, and it is now coming back to the Board for a decision.

At the October 15, 2007, hearing, instructions from the Board were given to get a letter from the water district stating that they will provide water to the desired lots; get more conclusive information regarding septic system feasibility for Lot 5; delineate wetlands, including dry creek drainage; delineate flood prone areas; and provide access agreement between all affected parties, including maintenance agreement.

During the course of obtaining access for the proposed lots and at the request of the neighbors, the Applicants agreed to move two of the lots from the northwestern cluster to the south.  In addition, the new map shows the applicants exchanged the building envelope on Residual Lot F for Lot 7 because Mr. Gruver plans to build his new home on Residual Lot F and he wanted to retain ownership of the proposed Residual Lot F with his new home.   No other changes have been made. 

Delineating the flood prone areas revealed that existing roads lie within that flood prone area.  Rural Land Plans are required to meet a 10-year flood event as described in the development standards and guideline for roads and drainage (Section 5.8.6.D.3 of the Larimer County Land Use Code). 

Terry Rue addressed the Board on behalf of the applicant.  Ms. Rue stated that they have addressed all outstanding issues, and requested the Board's approval on this proposal.

There was no public comment on this item.

The Board supported the proposal, and thanked everyone involved for all of their hard work on this project.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve the Meadowlark Estates Rural Land Use Plan Variance and Preliminary approval, subject to the conditions recommended by the Rural Land Use Center Staff. 

 

Motion carried 2-0.

 

The hearing adjourned at 6:40 p.m.

 

TUESDAY, APRIL 15, 2008

 

ADMINISTRATIVE MATTERS

(#197)

 

The Board of County Commissioners met at 9:30 a.m. with County Manager Frank Lancaster.  Chair Gibson presided and Commissioner Rennels was present.  Also present were Neil Gluckman,  Donna Hart and Deni LaRue, Commissioners’ Office; Kimberly Culp, Larimer Emergency Telephone Authority; Larry Abrahamson and Linda Coxen, District Attorney’s Office; Justin Smith and Bill Nelson, Sheriff’s Department; Andy Paratore, Facilities and Information Technology Department; Sherrie Swisher, Clerk & Recorder's Office; Larry Timm, and Candice Phippen, Planning Department; Mark Peterson, and Rex Burns, Engineering Department; George Hass, Linda Connors, and Bill Ressue, County Attorneys' Office; and Gael Cookman and Cindy Clay, Deputy Clerks.

 

1.  PUBLIC COMMENT:  There was no public comment today.

 

2.   APPROVAL OF THE MINUTES FOR THE WEEK OF MARCH 31, 2008 AND APRIL 7, 2008:

 

Commissioner Rennels tabled the minutes for the week of March 31, 2008, until Commissioner Eubanks could be present.

 

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve the minutes for the week of April 7, 2008.

 

Motion carried 2-0. 

 

3.    REVIEW OF THE SCHEDULE FOR THE WEEK OF APRIL 21, 2008:   Ms. Hart reviewed the upcoming schedule with the Board.

 

4.   CONSENT AGENDA

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve the following items as presented on the Consent Agenda for April 15, 2008:

 

04152008A001   Community Services Block Grant Agreement By and Between Larimer County and the State of Colorado Acting By and Through the Colorado Department of Local Affairs for the Benefit of the Division of Local Government

 

 

MISCELLANEOUS DOCUMENTS:  Citizen Participation Plan for CDBG Application to the State Division of Housing

 

LIQUOR LICENSES:  The following licenses were approved and issued:  Glen Haven General Store – 3.2%, Glen Haven; Zippy’s Liquor – Retail Liquor Store, Fort Collins        

 

Motion carried 2-0. 

 

 

5.    LARIMER EMERGENCY TELEPHONE AUTHORITY (LETA) UPDATE:  Kimberly Culp, Executive Director of LETA, presented an update of the businesses and projects LETA is working on for the year.  She noted that one of the main projects LETA is funding and managing is Coplink, a statewide initiative which will allow separate records management systems from law enforcement agencies throughout the State of Colorado to link together and share information such as criminal justice records across the state.  Completion of project is expected by the end of the calendar year. 

 

Ms. Culp explained that the Emergency Notification System (Commonly known as Reverse 911), used to notify residents of evacuations or other critical information is going through upgrades which have created significant delays and basically are “not working”.  This system will be out of use the end of June, 2008.  A request for proposal has been made to find a new solution.  Responses are due back to LETA by April 18, 2008, as a new system must be in place by July 1, 2008.

 

Ms. Culp also noted that LETA is working on rewriting their Inter-Governmental Agreement, as it hasn’t been updated since LETA was formed.  The most significant change has to do with the LETA Board setting and approving the surcharge. 

 

Finally, Ms. Culp discussed her recent trip to Washington DC as the representative for the State 911 Emergency Task Force, reporting directly to the Public Utilities Commission. 

 

6.    JUSTICE CENTER FACILITY – DISTRICT ATTORNEY SPACE:  Mr. Abrahamson and Ms. Coxen from the District Attorney’s Office discussed the need to add additional office space for a possible 12 to 14 new staff members to be hired as a result of new Judges coming on board July 1, 2008.  Discussion ensued between the DA’s office, Mr. Paratore, and the Commissioners.   Commissioner Rennels suggested a meeting between the above noted persons, Scott Courtney (Division Clerk Combined Courts), and Judge James Hiatt take place for further discussion and clarification of needs in this matter.  No motion was made at this time. 

 

7.    QUATERLY POLICY GOVERNANCE REPORT:  Mr. Lancaster presented a copy of his quarterly report to the Commissioners.  This subject of this month’s report was financial situations, the status of the County.  He reported compliance in all requirements but two in the Final Budgeting area. 

                                                                                                                                 

8.    APPROPRIATION OF CARRYOVER FUNDS FROM 2007:   Mr. Lancaster explained the definition of carryover funds to a group of 5 students from Colorado State University in attendance observing the Administrative Matters meeting.  He recommended the Board approve items previously presented that they were comfortable approving without the presence of Commissioner Eubanks.  The items recommended for approval include:

 

·  Data project for jail (CJAC)

·  Customer Service Analysis Project (Asst. County Manager)

·  Citizen Survey (CIM)

·  Real Ware Upgrade (Assessor)

·  Retreat (HR)

·  Criminal Justice System Mapping (CJAC)

·  Continuation of ˝ FTE Employee Imaging for Finance (FITD)

·  IT Disaster Recovery (FITD)

·  Sale of Evidence (Sheriff)

·  Matching Funds for Radio Grant

·  Cost Allocation Plan

 

 

M O T I O N

 

Commissioners Rennels moved that the Board of Commissioners approve the appropriation of 2007 carryover funds for the items as outlined above. 

 

Motion carried 2-0. 

 

 

9.   COUNTY MANAGER WORKSESSION:  Mr. Lancaster addressed a question from Neil

Gluckman regarding the CCI Survey and whether or not help was needed by staff for the   Commissioners to complete this survey.  The Board agreed they would handle this individually and have it submitted by the due date of May 5, 2008.  

 

Mr. Lancaster also presented a request for $1000 to support the 25th anniversary of El Centro’s Annual Achievement Award Ceremony to take place on May 2, 2008. 

 

M O T I O N

 

 

Commissioner Rennels moved that the Board of County Commissioners approve the appropriation of funds in the amount of $1,000 from Special Projects to support the contribution request from El Centro.

 

Motion carried 2-0. 

 

  

10.   COMMISSIONER ACTIVITY REPORTS:   The Board noted their attendance at events during the past week.

 

11.   LEGAL MATTERS:  Mr. Hass presented a license agreement from the original owner of the Colorado ICE to a successor in interest to operate the team at The Ranch.  Mr. Haas has reviewed the lease assignment and approved the agreement as-to-form.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve the assignment of license agreement and authorize the Chair to sign said agreement.

 

Motion carried 2-0. 

 

04152008A002    CONSENT TO LICENSE ASSIGNMENT BETWEEN THE LARIMER COUNTY BOARD OF COUNTY COMMISSIONERS AND UIFA OPERATING, LLC, A NEBRASKA LIMITED LIABILITY COMPANY IN REGARDS TO THE COLORADO ICE

 

 

M O T I O N

 

Commissioner Rennels moved to go into Executive Session for conferences with an attorney for the purpose of receiving legal advice on specific legal questions as outlined in 24-6-402-(4) (b) C.R.S.

 

Motion carried 2-0. 

 

           

The Board came out of Executive Session at 11:50 a.m., with no further action taken.

 

 

 

FRIDAY, APRIL 18, 2008

 

 

SHOW CAUSE LIQUOR LICENSE HEARING

FOR OSIRUS NIGHTCLUB

(# 198 & 199)

 

The Board of County Commissioners met at 1:30 p.m. with Assistant County Attorney Linda Connors.  Chair Gibson presided and Commissioner Rennels was present.  Also present were:  Andrew Neely, Owner of Osirus Nightclub; Adele Reester, Attorney representing Andrew Neely; Don Johnson, Special Prosecuting Attorney representing Larimer County; Leila Brewster, Court Reporter; and Gael Cookman, Deputy Clerk.

 

Ms. Connors called the hearing to order; noting that the first order of business would be for the Board to consider a proposed stipulation by Ms. Reester on behalf of her client. 

 

Ms. Reester stated that Mr. Neely is looking to remove himself from the business and requests the ability to transfer the liquor license so that he does not lose the monetary investment he has made towards this business thus far.  Ms. Reester proposed a 60 to 90-day suspension in order to be able to accomplish the transfer. 

 

The Board declined the stipulation proposal and proceeded on with the hearing.

 

Ms. Reester then requested that exhibits 1 through 17 be dismissed, as these incidents had all occurred prior to Mr. Neely renewing his liquor license; therefore, they should have been considered at renewal.   Ms. Reester also requested that items 1, 3, 4, 5, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, and 19 be dismissed due to the expiration of the statute of limitations, as all of these incidents are more than one year old.  Finally, Ms. Reester asked that items 1, 2, 4, 5, 6, 7, 10, 11, 13, 19, 21, and 29 be dismissed, as the owner called to report these incidents to the Sheriff's office, and should not be penalized for taking a proactive approach to rectifying situations.

 

Mr. Johnson noted his opposition to dismissing the incidents that Ms. Reester outlined.  He stated that this is not a criminal case and not bound by those rules or order, and that it was up to the Board of County Commissioners to determine, after the evidence is presented, if the calls made by the owner to the Sheriff’s Department were indeed “proactive.”   However, Mr. Johnson did recommend removing items 13, 15, and 17, based upon the application on file.

 

Ms. Conners noted the removal of items 13, 15, and 17.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners deny the stipulation request, and proceed with the hearing.

 

Motion carried 2-0.

 

At this time Mr. Johnson called his first witness, Corporal Chad Day.  Mr. Day was sworn in and explained his position with the Larimer County Sheriff’s Department.  Mr. Johnson asked Corporal Day to review item 1 – an aerial photo of buildings at the Mulberry Industrial Park - and asked if he could identify where the Osirus Nightclub was located.  Corporal Day stated that unit 26 was not clearly marked; however, it was an accurate depiction of the buildings where the nightclub is located.  Ms. Reester objected to the exhibit, as it was not accurate in naming the nightclub by unit number.

 

Mr. Johnson then reviewed items 1, 2, 3, 5, 32, and 33 with Corporal Day.  During much of this conversation, Mr. Johnson asked about Corporal Day’s assessment of the visibly intoxicated individuals at the Osirus Nightclub during his visits to this establishment.  Ms. Reester noted a standing objection to this line of questioning, as in her opinion, the issue of “visibly intoxicated persons” was not outlined as part of the allegations.  Mr. Johnson stated that it certainly is an indicator as to whether or not the business was being conducted in an appropriate manner.  Ms. Conners stated that this issue was outlined as an allegation in the notice presented to the establishment owner.  Mr. Johnson moved that items 1, 2, 3, 5, 32 and 33 be received, and these exhibits were received by the Board.

 

Ms. Reester cross-examined Corporal Day and questioned whether the staff members sold alcohol to the minors present in the establishment, or if other patrons provided the alcohol.  She also asked for Corporal Day’s agreement regarding the fact that most of the incidents noted took place in the parking lot.  Corporal Day agreed to both points.

 

Mr. Johnson called Deputy Katie McMurray to the stand to be sworn in.  Deputy McMurray was asked to describe the incident outlined in item 42, which pertained to her witnessing a “fetish” party taking place at the Osirus Nightclub, during which individuals were “shocked” on their buttocks and persons were tied up by their genitals, etc.  Mr. Johnson then moved for the admission of items 32, 33, and 42.

 

There was no cross-examination by Ms. Reester.

 

Mr. Johnson then called Sergeant John Feyen to the stand to be sworn in.  Mr. Johnson had Sergeant Feyen explain his background with the Sheriff’s Department, as well as the incident reporting procedure used by patrol deputies.  He then asked Sergeant Feyen to go through the following exhibits, one-by-one:  7, 8, 10, 11, 12, 14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and 42.   Ms. Reester objected to the fact that Sergeant Feyen was including hearsay evidence during this portion of the testimony.  Ms. Connors reminded everyone that hearsay evidence is admissible in this type of proceeding.

 

Mr. Johnson moved for the admission of items 7, 8, 10, 11, 12, 14, 16, 18, 19 through 31, 34, 35, 36, 37, 38, 39, 40, and 41.   Ms. Reester objected to the admission of items 24 and 26 as they do not relate to the allegations.  Ms. Conners agreed, and items 24 and 26 were dismissed.

 

During Ms. Reester’s cross-examination, she questioned whether or not a felony conviction would prohibit someone from being involved in a liquor licensed establishment.  Sergeant Feyen stated that it would be up to the Board of County Commissioners to determine the character of an individual to be involved in a liquor licensed establishment within Larimer County.  Ms. Reester then asked questions regarding a number of the incidents that took place within the establishment, and outside in the parking lot, and whether or not patrons could have consumed alcohol in their cars, etc.  Sergeant Feyen agreed that there were a lot of incidents that took place in the parking lot, and that it was certainly possible that individuals had consumed alcohol in places other than the Osirus Nightclub.

 

Commissioner Rennels asked some clarifying questions regarding items 9, 22, and 28.  Commissioner Rennels also asked if it was “normal” to have this level of fighting at any given establishment.  Sergeant Feyen stated that it was not normal to see this type of fighting activity at a bar.  Chair Gibson then asked Sergeant Feyen to explain the portable breathalyzer and how it operates. 

 

Mr. Johnson stated that he had no further witnesses.  Ms. Reester stated that they were not presenting a case, so Ms. Connors then asked for closing arguments. 

 

Mr. Johnson noted that the evidence was clear and convincing in that the establishment owner was not operating his business in a responsible manner.  Mr. Johnson pointed out that even if the owner was calling in the incidents, they continued to happen, over and over again.  And that clearly the “fetish” ball was something well beyond what the citizens of Larimer County wished to see in their community.  Mr. Johnson stated that Mr. Neely has established a pattern of inability to follow the law with regards to running his business.

 

Ms. Reester stated that she believed the prosecution had failed to prove that the management of the Osirus Nightclub was in error.  She noted the lapse in time from when someone left the nightclub and were then stopped by law enforcement, and pointed out that they could have consumed alcohol elsewhere in between.  She stated that individuals were being “snuck” drinks in the club, and not being served by the staff members.  She stated that a felony conviction of the manager does not necessarily prohibit someone from being involved in a liquor licensed establishment.  Ms. Reester stated that the evidence presented did not support the allegations; with the exception of allegation number 31, which they did not argue a defense for.

 

Mr. Johnson reviewed the felony warrant for the manager working at the Osirus Nightclub and stated that it does point to individual character.  He stated that the establishment owner had a duty to ensure that drinks were not being “pushed” to minors. 

 

At this time Ms. Connors recommended that the Board go into executive session for confidential legal advice.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioner go into Executive Session for confidential legal advice, as outlined in 24-6-402(4) (b).

 

Motion carried 2-0.

 

The Board came out of executive session and noted that they were not convinced that items 5, 9, 10, 14, 17, 18 and 24 were substantiated; therefore, they dismissed these allegations. 

 

 

 

 

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners find that a violation exists on all items presented except for 5, 9, 10, 14, 17, 18, and 24. 

 

Motion carried 2-0.

 

Ms. Conners then asked council to provide their opinions as to what sanction should be imposed.  Mr. Johnson recommended revoking the license, as the current owner has proved to be irresponsible as a license holder.

 

Ms. Reester asked for the ability to question Mr. Neely, so that he might better explain his position.  The Board granted this request, and Ms. Reester asked Mr. Neely a series of questions regarding how he has been operating his establishment since notification of the show cause hearing, and his intentions for transferring the business to a new owner.

 

The Board listened to Mr. Neely and then questioned his decision to condone the “fetish” party, and also wondered why he did not respond quicker to control the level of incidents occurring at his establishment.

 

Chair Gibson stated his concern that culture within this environment has continued to exist with new owner, to new owner.  He noted that the level of fighting and underage drinking continues, and has become a safety risk to the community.   Chair Gibson stated this he is inclined to revoke the liquor license.

 

Commissioner Rennels agreed and stated that she has concerns with the lack of judgment displayed by Mr. Neely.  She stated that she was very concerned with the fact that Mr. Neely was “unaware” of the magnitude of the incidents, and for his approval of the fetish night.  Commissioner Rennels stated that she would support nothing less than a six month suspension, noting further that this would in essence put them out of business.   She also noted that if someone were to start a nightclub up in this area again, then it should be someone totally new, and unattached to this venue.  Therefore, she also supported revoking the license.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioner revoke the liquor license for the Osirus Nightclub.

 

Motion carried 2-0.

 

The hearing adjourned at 5:05 p.m.

 

 

 

 

________________________________

                        GLENN W. GIBSON, CHAIR

BOARD OF COMMISSIONERS

SCOTT DOYLE

CLERK AND RECORDER

 

ATTEST:

 

 

­­­______________________________________

Gael M. Cookman, Deputy Clerk

 

 _____________________________________

Cynthia A. Clay, Deputy Clerk