Fargo City Commission - March 5, 2024

Special Meeting: Tuesday: March 5, 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 12:30 o'clock p.m., Tuesday, March 5, 2024.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Strand.
Absent: Mahoney.
Deputy Mayor Preston presiding.

City Auditor Steve Sprague said the meeting is to conduct a Hearing to consider a possible second liquor license violation by the Windbreak Saloon of Fargo Municipal Code 25-1509.2, serving an obviously intoxicated impaired person. He said the Liquor Control Board held a Special Meeting on January 25, 2024 and after testimony from the Police Department, the licensee and attorneys there was a 4-1 vote recommending to follow the established penalty. He said a second offense is a $1,000.00 administrative penalty plus a one-day suspension of the alcoholic beverage license. The licensee disagreed and has chosen to appeal the finding, he said.

Police Sergeant Aldin Golos said one of his duties is being a liaison with the Windbreak and he presented his findings after reviewing this case. He said on October 21, 2023, at 2:17 a.m., officers responded to a call for service to the Windbreak for a male passed out in the parking lot who was extremely intoxicated and could not walk, stand alone and had urinated himself. He said the male was transported to the hospital and then jail detox. Sgt. Golos said he watched the surveillance video at the Windbreak with owner Michael Hlebechuk and he outlined his observations for the Commissioners, detailing the patron’s actions. He stated that the male took 14 drinks in 96 minutes from the first drink to the last; 10 shots and four mixed drinks. He said much of the time the male was walking around, until 1:38 a.m. when he sat at the bar talking with bartenders and employees who were off the clock and there was not a good camera angle. At 1:54 a.m., the customer was given water, he said, and escorted out to the parking lot at 1:56 a.m.

Commissioner Piepkorn said 14 drinks were consumed in 96 minutes which would be a drink every 6.5 minutes. He said police have responded to the Windbreak Saloon 19 times for over intoxication in 2023, so this is not a one-time example and it fits the definition of overserving. A case like this takes an officer off the street for multiple hours on multiple days, he said.

In response to a question from Commissioner Piepkorn asking about the time involved to research this, Sgt. Golos said he has to physically view footage from ten or more cameras and that takes three to four hours.

Attorney Tim O’Keefe, representing the Windbreak, stated Sgt. Golos is a highly trained expert on determining if someone is obviously intoxicated, yet his report says he cannot definitively say the male was overserved and he believes alcohol caught up at some point when the male was sitting on a stool at 1:38 a.m. He said throughout his narrative Sgt. Golos says the male looks normal. He said it should be easier to find signs of intoxication after the fact when viewing a video, while in a general setting there are servers, in this case several different servers, serving a number of patrons. He said the term “obvious intoxication” defined in the City Ordinance has nothing to do with the blood alcohol level or number of drinks. Ordinance says “the person’s obvious intoxication or impairment be reasonably discernible or evident to a person of ordinary experience” he said, and the officer has far more experience than a person of ordinary experience yet did not determine this individual was intoxicated prior to being served. This body should consider Windbreak is being proactive, he said, they have given the PD unfettered access, they use cameras, have eliminated many specials and their calls for service are way down. There is one possible adjudication by the Board that there was a violation of the Ordinance, he said, and that is still pending a possible appeal. The licensee has cooperated and is working diligently to make a safer environment, he said, and this should be about their license and this one incident.

Commissioner Piepkorn said it is shocking to claim that this is not overserving. This customer was served 14 drinks in 96 minutes, he said. The Windbreak has a culture of overserving, he said.

Police Chief David Zibolski said the most recent meeting was on April 17, 2023, when Commissioner Piepkorn, Captain Helmick, Steve Sprague, Nancy Morris and Bob Nelson met with Mr. Hlebechuk to discuss a number of issues at the Windbreak. He said he made improvements in the underage drinking area have been made and over intoxication issues were discussed. He said it seemed there was a culture of overserving since so many calls are similar to this one brought forward. He said this individual not only had been served 14 drinks in 96 minutes, he spent the last part of it with personnel from the Windbreak. He said it does not matter if they were on or off duty; that is who he was with when he consumed two more shots. Soon after he was in such a state that he was given water and walked out the door, he said. Sgt. Golos was not there to determine this individual’s composure or amount of drinks, that is the server’s responsibility, he said. A person in such an intoxicated state had to be discernable to someone of ordinary experience as the Ordinance says, he said, which is everyone working in that bar. He said he would dispute that his state was not discernable. There is a lot of dangerous conduct happening as a result of the Windbreak’s culture of overserving, he said, and the reason the focus is on the Windbreak is because the Windbreak brings the focus to themselves by what they are doing, he said. He said a perfect example of a problem is a group of employees hanging out with someone consuming too much alcohol and the best they can do is give him water and walk him out the door and then a patron calls the Police. Cases in other establishments have been investigated, he said; however, nothing of this significance.

In response to a question from Commissioner Strand asking if the individual received a citation, Sgt. Golos said no, intoxication is not illegal. He said this individual was not sitting behind a wheel. There is a State law that says if one is unable to care for themselves or are a danger, an officer has an option to take the individual to detox or to someone to care for them, he stated.

Commissioner Kolpack said the cooperation the Windbreak has shown is appreciated. This is the second violation that has come before this body in a short time, she said, and she feels there is no question that this individual was overserved, and there is a violation of the license.

Commissioner Piepkorn said the culture of this business overserving makes it a danger to the community and he feels the license could be suspended indefinitely. He said if this is allowed to continue, it is a clear and present danger and it is alarming that they can say 14 drinks in 96 minutes is not overserving. He said he supports finding a violation; however, he would ask if that is enough.

City Attorney Nancy Morris said there could be a suspension if it is determined the operations are in breach of the peace, which would result in an additional Hearing. She said this is an administrative proceeding and the reason for today’s Hearing is the incident of overserving. She said having a license is a privilege and it comes to the Board today to determine if the overserving Ordinance has been violated. A license violation is not as high of a standard as in criminal court, she said, which would have to be beyond a reasonable doubt. Here it is more likely or not a probable cause that one would concludes from the facts a violation has occurred, she said. This is an administrative proceeding and not as high as a criminal proceeding, she said.

In response to a question from Commissioner Strand asking if it is known why the one Liquor Control Board member voted against the violation, Commissioner Piepkorn said that person had been a member of the liquor industry and it may have been a symbolic or sympathetic vote.

In response to a question from Commissioner Strand asking about the timing of the one-day suspension of the license, Ms. Morris said the Ordinance says the suspension date is selected by the licensee in conjunction with the Auditor.

Mr. O’Keefe said the patron became intoxicated at some point on the date in question; however, there is not enough evidence. The business has been most cooperative on the issues; however, this Hearing is for the one issue on October 21, 2023 and involves that penalty. He said the concerns have gotten through to the business and there has not been another charge he is aware of. The Windbreak has done a lot, he stated, what they did not do was violate this Ordinance.

In response to a question from Commissioner Strand asking if the pattern is changing, Chief Zibolski said that since they met in April of 2023 the pattern through the year continued and over intoxication has not improved.

Commissioner Strand said the role of the Commission is to adhere to the policies enacted by the Commission, which are enforced and brought to the Commission by the Liquor Control Board.

Commissioner Piepkorn moved to uphold the findings of the Liquor Control Board and staff and find a violation by the Windbreak Saloon of Fargo Municipal Code 25-1509.2 and apply the penalty prescribed in Fargo Municipal Code 25-1523(F), a $1,000.00 administrative penalty plus a one-day suspension of the Alcoholic Beverage License for a second failure for serving an obviously intoxicated or impaired person.

Second by Kolpack. On call of the roll Commissioners Piepkorn, Kolpack, Strand and Preston voted aye.
Absent and not voting: Mahoney.
The motion was declared carried.

The time at adjournment was 1:07 o’clock p.m.