Fargo City Commission - January 23, 2024

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 10:00 o'clock a.m., January 23, 2024.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Strand, Mahoney.
Mayor Mahoney presiding.

City Auditor Steve Sprague said the Hearing today is an appeal of a liquor license violation, under Section 25-1509.2 of the Fargo Municipal Code, by the Liquor Control Board (LCB). He said the LCB at its October 24, 2023 meeting recommended on a 3-2 vote to impose a penalty for a first offense by the Windbreak, which is a $500.00 administrative penalty. The licensee disagreed with the findings, he stated, resulting in today’s Hearing.
Police Chief David Zibolski summarized the July 2, 2023 incident at the Windbreak, taken from excerpts of the video transcribed and reported by Sgt. Aldin Golos. He said in summary, a female arrived at the Windbreak alone about 10:45 p.m. and was walking normally and did not appear impaired. From about 10:45 p.m. to about 12:30 a.m., he stated, she was served five drinks, including two drinks in large glasses and one shot, in addition to sipping from other patrons’ drinks. At about 1:00 a.m., he said, a security guard determined the female was too intoxicated and removes her drinks and gives her water. Two security guards then walk her outside, he said, as she is not able to walk on her own. She is later seen outside walking to her vehicle where security guards check on her several times, he said. At about 2:25 a.m., Police were called to an accident where officers found the female in her vehicle, he stated, she was arrested and taken to Essentia where her blood alcohol content (BAC) was .291. He said the BAC indicates when she left the Windbreak at approximately 1:30 a.m., her BAC would have been even higher as alcohol dissolves at approximately .0016 percent per hour for an average person. He said based on this information, the violation was brought to the LCB that this was a case of a person being overserved by staff at the Windbreak and the LCB found in favor of that motion.
Tim O’Keefe, attorney for the Windbreak, said he wants the Commissioners to focus on this incident and hear the facts and evidence. The LCB failed to unanimously find a violation, he said, there were four calls for a motion before one was finally made, there were questions to the City Attorney asking what happens if they do not do anything, and then there were two calls for a second before a motion finally passed 3 to 2. He said the reason that is important is there was a lot of interjection, the Police Chief was not present at the Windbreak that night, he did not review the video himself, he is making an opinion about what happened and no one knows for sure what happened after the female left the bar. He said there is an almost two-hour span where it is not known what she was doing and she could have consumed more alcohol in her car. Security did the right thing, he said, and did not let her drink anymore and that is the testimony the Commissioners should be hearing, not speculative interjections about how someone gets such a high BAC or how someone crashed their car. He said the Windbreak has experienced servers and the owners agreed months ago to work with the Police and a Liaison Officer. He said the Ordinance does not require the Commissioners find a violation and impose a penalty. He said it was determined the female was intoxicated, security cut her off and did not allow her to remain on the premises. The Commission should make the appropriate motion and determine no violation for this one incident, he said.
In response to a question from Commissioner Strand asking about the LCB’s action, Commissioner Piepkorn said he had to relinquish the chair to make the second due to the fact that the Board was having a hard time making a decision. The City met with the bar’s management many times, he said, yet these incidents continue and clearly they are not get getting the message. He said management has bad attitudes and think they are above the law. It is lucky somebody did not get killed, he said, and in his opinion they are on the edge of losing their liquor license due to the fact that this type of behavior has been going on for years.
Commissioner Preston said the Ordinance lays out the behaviors and there is obvious evidence that those behaviors were being exhibited. This could have been alcohol poisoning and she could have died in her car, she said. If it were up to her, she said, she would do something more severe; however, she knows that cannot happen at this point. She said this seems to be an ongoing issue and it has got to be clear to staff that they intervene early. She said going out and checking on this girl every five minutes says to her that staff were worried.
Commissioner Kolpack said the moment for her where the violation seems to be clear is serving three drinks to two people when one is clearly exhibiting intoxicated behavior.
Commissioner Strand said several months ago he received a message from a resident who works as an Uber driver and it was clear to them the Windbreak was over-serving. They said they now avoid picking up at the Windbreak due to the fact that virtually everyone they pick up is over-served.
Mr. O’Keefe said due process requires the Board focus on the night in question and he understands the culture, hearing from a constituent and all these other concerns; however, the officer who actually watched the video is not here to be confronted and the other information is secondhand at best. It is different when someone is there with a bar full of people, he said, and you have to do the best you can and take the practical approach. An individual should be the responsible party for their own actions, he said, and Officer Golos made the same comment and agreed that no one knows what she did before she got to the bar or after she left. He also agreed that when she was sold two drinks, the only two she purchased, she was fine. The third drink was in a tall glass, he said, and it was bought for her by someone else, it was not a free drink; the fourth drink was also bought for her by someone else and she did not drink those two tall drinks and took a few sips from the one individual’s drink. Then there was the person buying three drinks who might have been buying them for other people; however, it was at that point that she caught management’s attention and they cut her off. He said there is no relevant evidence presented to the Commission today that would rise to the level of finding a violation of the Ordinance even by a preponderance of the evidence. He said the owners have been around a long time, this bar is a big investment and they take it very serious. They train their staff, he said, and they keep good staff around. They are doing everything they can and in the moment when there is a dance floor, a band, pool tables and hundreds of people, sometimes they are not going to see everything right away; however, the minute they did, they did the right thing and cut her off. The message has been heard loud and clear, he said; however, for this particular situation he asks that the Commissioners recognize there is not enough evidence to hold the owners in violation of the Ordinance.
Ms. Morris said she agrees with Mr. O’Keefe that facts matter and in this instance, the facts were presented by Chief Zibolski and Officer Golos. She said this Ordinance was revised last year due to the fact that it was difficult to bring any violations forward unless an officer visually saw the drinks served. She said the Ordinance was revised to include certain behaviors being demonstrated and those behaviors were exhibited in the video Officer Golos reviewed and summarized. She understands Mr. O'Keefe's position that this is not a trial, she said, and agrees that having a liquor license is a privilege. Fargo designates the license terms and also provides for the rules that must be followed in order to continue to operate that license, she said. This is not a criminal matter, she said, and this is not a beyond a reasonable doubt case. She said with the facts presented in this incident there is sufficient evidence for the Commission to find that a violation under these circumstances did occur.
Mayor Mahoney said the female showed up walking fine, not impaired and at 1:00 a.m. when she was cut off she looked pretty impaired and could barely walk or talk. She was at the bar for two hours and it seems staff was checking on her outside, but it is my opinion she was very drunk and staff should have called her a cab or called Police. They knew she was impaired and should have done something when it was obvious this customer could not make their own good judgments.
In response to a question from Commissioner Strand asking about the stages and progressions of penalties, Ms. Morris said a first violation is a $500.00 administrative penalty, a second offense is a $1,000.00 penalty and a one-day suspension, a third offense is $2,000.00 penalty and a two-day suspension and a fourth offense is revocation of the license.
Commissioner Piepkorn said the female had five drinks in two hours with one or more of the drinks being a double and one being a shot. He said he knows the Board needs to focus on this occurrence; however, he thinks the Board should suspend them due to the fact that this has been going on for years and he is fed up. This is becoming a public safety issue, he said, and is unacceptable.
In response to a question from Commissioner Preston asking if the Commission has any flexibility in moving towards a heavier penalty, Ms. Morris said she would not recommend doing that at this time. She said that would require notice and an opportunity to be heard.
Commissioner Strand said it is his intention to stand with the LCB on this issue; however, it needs to be said that the Windbreak is a major draw to the community and there are many people who would give their eye teeth to have the Windbreak’s business. He said the owners have everything going for them, they are on top of their game and it is important not to get knocked off when they have that much activity and that many people who think the Windbreak is the place to be. He said it is on the owners to step up their enforcement of the rules so they are not at risk with their license.
Commissioner Preston moved to uphold the findings of the Liquor Control Board and staff and find a violation of Fargo Municipal Code 25-1509.2 and apply the penalty prescribed in Fargo Municipal Code 25-1512 (F) a $500.00 administrative penalty for a first failure for serving an obviously intoxicated or impaired person.

Second by Piepkorn. On call of the roll Commissioners Preston, Piepkorn, Kolpack, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay the motion was declared carried.
The time of adjournment was 10:45 o’clock a.m.