Fargo City Commission - October 25, 2023

Agreeable with a call for a Special Meeting issued by Mayor Mahoney, the Board of City Commissioners of the City of Fargo, North Dakota, convened in a Special Meeting in the City Commission Chambers at City Hall at 11:15 o'clock a.m., October 25, 2023.

The Commissioners present or absent were as shown following: Present: Kolpack, Piepkorn, Preston, Strand, Mahoney.

Mayor Mahoney presiding.

City Auditor Steve Sprague said the meeting is the result of an appeal of the Liquor Control Board’s September 13, 2023 determination that there were violations to Fargo Municipal Code 25-1509 (allowing minors in a liquor establishment). He said after the evidence was presented, the Liquor Control Board determined that minors were in fact found present in the liquor license establishment of District 64 at 64 Broadway North and the business should be assessed an administrative penalty of $500.00.

Police Chief David Zibolski summarized the activities that led to the determination. There was a license inspection walk-through by the PD in February where minors were found on premise, he said. A point of contention came in March when six officers came for a bar check, he said; however, that was followed by a meeting with the owners and counsel discussing business operations and efforts being taken to keep minors out. He said it was learned the scanner is at the bar and it was advised to have it at the point of entry. There have been social media postings and anonymous tips about the business and Police calls have included an intoxicated minor and fights, he said. On May 5th and May 19th separate incidents had minors on premise and in one incident an officer walking by overheard a minor yelling from the balcony for her friends to come up as the bar was not checking IDs. He said he reviews incidents in prior months to report to the Liquor Control meetings, and videos were requested; however, more than 30 days passed and District 64 no longer had their videos. He said correspondence from prior counsel did not arrive in time to be addressed at the July Liquor Control Board meeting. He said Police were called to Sanford for a report of a gunshot wound that led to Downtown and subsequent investigations showed the parties involved had been in District 64. He shared a video obtained from a search warrant that showed an 18 year-old suspect walking into the bar with a group, none of whom were carded. He said they learned there had been an altercation there and later the suspect was involved in a shooting in near proximity.

Tim O’Keefe, attorney for District 64, said minors enter using fake IDs and the bar has recognized that and taken appropriate steps. Fake IDs are easy to obtain, he
said, and this bar is not the only one dealing with the problem. The Board is in a unique place, he said, being tasked to make the laws and in a position to decide enforcement. It is the minors who are breaking the law by entering under false pretenses, he said, and entering establishments they are not to be in and drinking underage. District 64 has one way in and one way out, he said, and have trained security, cameras and scanners. He said there is a lack of due process due to fundamental fairness in this case as they are unable to produce the video captured due to it being too long before they were notified. He said he would ask the Board to determine if there is sufficient cause to find a violation.

Reeno Illogu, co-owner of District 64, said he handles security. He said the fight referenced was on City property outside the bar, it is unfortunate the kid in the video snuck in with the group and they no longer giv ecourtesy entrance to customers they recognize. He said unfortunately social media finds prejudice and angst against Fargo PD. They have 36 cameras and body cams and signage, he said and there is an epidemic of fake IDs, he said.

Chuck Illogu, co-owner of District 64, said they were not notified until June 27th about the May incident, 53 days later. He said they do not feel they are being treated as innocent until proven guilty and the person committing the crime needs to be the one punished. If a bank robber robs a bank or a scammer scams someone, it is the person committing the crime who is responsible, he said, the same as in this case when it is the person faking identification who is committing the crime.

Mayor Mahoney said there were two violations in May and the Liquor Control Board gave them a break to assess only one penalty.

Chief Zibolski said there have been violations that come to the Liquor Control Board and a number have been fined across the City. He said District 64’s physical measures are top notch and they have agreed to work together, the gap is in the identification and scanning process.

Commissioner Piepkorn pointed out there could have been two penalties assessed and there were underage drinkers in the establishment. District 64 has changed and is being strict, he said.

Commissioner Strand commended their proactive approach and due diligence. He said equity is a concern and consistency is important. He said law enforcement needs to clamp down on fake IDs and minors must not be let off the hook.

Commissioner Kolpack said she appreciates the entrepreneurship, the investment in Fargo by District 64 and the mitigating factors taken. She said there is compelling evidence that even though statements were made that every ID was checked since the May incidents, clearly that was not the case in June when a group was let in without checking. She said she supports the decision of the Liquor Control Board.

Commissioner Preston agreed and said the video shows an obvious breach in checking IDs. She said the process needs to be cleaned up and she would like to see scanners implemented across the board for liquor license holders in the near future. She said it seems as valuable as a liquor license is and the business is taking on the risk, a scanner should be available and used with everyone coming in the door. She said walk-throughs should be done consistently across all establishments.

In response to a question from Commissioner Preston asking what happens to fake IDs that are taken away, Chief Zibolski said they are destroyed; names are likely not correct and due to shear volume there is not a way to track down the source. Quality scanners will catch fakes, he said; however, in some of these instances a scanner was not being used, the ID was simply looked at and passed. He said there will be a presentation at an upcoming Liquor Control Board meeting about scanners. He said they have started tracking walk-through information which will be included in the Liquor Control Board reports. He said there is a high focus Downtown, especially weekends.

In response to a question from Commissioner Preston asking what the penalty is for possession of a fake ID, Sergeant Wagner said it is an infraction in the City of Fargo.

Assistant City Attorney Ian McLean said possession of a fake ID has a $400.00

Chief Zibolski said for example, the Windbreak had many issues last year and
since installing scanners the incidence of underage drinkers is reduced. A scanner is a good deterrent for underage people attempting to enter an establishment, he said.

In response to a question from Commissioner Strand asking what penalties were levied to the Windbreak for minors being served in the establishment, City Auditor Steve Sprague said in 2021 they were levied an administrative penalty of
$500.00.

Commissioner Strand said at the local level or legislatively, there needs to be some teeth put into penalties for securing or providing a false ID.

Mr. O’Keefe said the penalty was a compromise by the Liquor Control Board. The owners have worked hard with the City and if boiled down to only the two incidents in May, they did not have an opportunity to produce the video so the fairness is lost. In the sense of fairness, he said, he would ask the Board to find there is not sufficient cause to hold them responsible for violating the Ordinance for the May incidents.

Commissioner Piepkorn said the changes must come from the State Legislature, in the last session they actually reduced the penalty. He said the City needs to send that message to the legislators.

In response to a question from Commissioner Strand asking whether a probationary period has been explored, Mr. Sprague said the penalty matrix is set up, this is the first violation of selling to a minor and the business would need seven violations of the same to have their license revoked. He said if they have no more violations in 18 months, the next violation would go back to a first violation.
Mayor Mahoney said the Commission is interested in taking a look at the penalty matrix and matching the penalties to the severity of the incident.

In response to a question from Mayor Mahoney asking if Police could let bar owners know about incidents more timely, Chief Zibolski said that has been asked of the officers; however, in some instances they are off to the next situation. He pointed out that the establishment knows when the Police are in there and it is not unreasonable for them to recognize and follow-up it they have questions.

Commissioner Strand said there are people wondering if District 64 is being targeted or treated differently due to race. He said he is not saying they are; however, that question or concern is in the background.

Chief Zibolski said that check would be with the Commission or the courts. Today the facts were presented, he said, and had nothing to do with anything except Police performing their lawful duties. He said staff trains in regards to implicit bias and there is a high caliber of personnel who are fair and uphold the law.

Commissioner Preston said the Commissioners would also like to see the data compiled for the Liquor Control Board.

Commissioner Piepkorn moved to uphold the findings of the Liquor Control Board and staff and find a violation of the Fargo Municipal Code 25-1509, permitting a person under 21 years of age to enter a liquor establishment and to uphold the
$500.00 administrative penalty.

Second by Kolpack. On call of the roll Commissioners Piepkorn, Kolpack, Preston, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried

The time of adjournment was 12:27 o’clock p.m.