Feature | Bar Battles: Fight the DABC or give in. Either way, you’ll likely lose. 

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His only employee named in the violations, Kate Calder, told him she did nothing wrong. Facing a 10-day license suspension or possible revocation and fines up to $25,000 for just one of the counts, Harwood fought back. Unlike many licensees, Harwood could afford pricey counsel. Around the corner from The Hotel are the offices of Winder & Haslam, a well-established law firm. Harwood ended up paying $82,000 in legal fees in his battle to keep his club’s reputation clean. State Bureau of Investigation head of alcohol investigations Lt. Ed Michaud was unavailable for comment.

Winder administrative law expert Linette B. Hutton says defending The Hotel was an eye-opener. “What’s remarkable about this case is the violations imposed against The Hotel were made up of just opinions and speculation,” Hutton says. Assistant Attorney General Page has a different take: “We take police reports at face value,” she says. “Those are the things that have happened.”

On May 5, 2006, three men entered the crowded three-story club at 11:20 p.m. At 11:55 p.m. two more men arrived. The five were all State Bureau of Investigation agents. They had already visited five clubs: The Cell Block, The Depot, Head’s Up, Cabana and Club Sound. Last was The Hotel.

From a distance of 15 to 20 feet, SBI agent Doug Miller and another agent observed then-28-year-old server Kate Calder, on the second floor, fill 11 small plastic cups with a liquid, which a patron then passed to five different people. The patron handed over a credit card. Calder appeared to process it and had the customer sign a receipt. Neither agent got the customer’s name nor inspected the receipt to see what he’d paid for. That observation resulted in an overserving violation.

Later, a man in a tuxedo named Kevin Handron took a bottle of champagne Calder had placed on the bar and walked away with it, Miller wrote in his report. Miller described the bottle as screw top. Handron, Miller said, removed the top and swigged from the bottle. Hotel staff told Hutton champagne bottles came only with corks.

While the SBI agents did not confiscate or photograph the bottle, they did break cover to take Nevada-resident Handron to the manager’s office. To them, he appeared drunk. The agents didn’t take a breath sample or ask him to perform a field sobriety test. Nor was the issue of impairment or disability that might be confused with drunkenness raised. The agents added to the list another citation for serving to an intoxicated person.

Six agents returned to The Hotel on May 12. A bartender unidentified by the agents mixed a drink in a tall glass with ice. He metered the initial alcohol, then added flavorings. In SBI agent Jerry Walters’ written opinion, “The drink likely contained more than 2.75 ounces of alcohol.” Walters did not inspect the drink itself.

The Believers
DABC’s Dorius requires that SBI send its reports of violations to him promptly, several agents said in deposition. If they were not sent within two weeks, Dorius would not pursue them. The May 2006 Hotel reports, an agent said, “slipped through the cracks.” Dorius received them as background information in September after SBI had returned to The Hotel and found several more violations. To the surprise of one agent, Dorius nevertheless pursued the May infractions with the September charges, despite the former being filed so late.

The Sept. 2, 2006, visit provided further examples of questionable evidence gathering. Agent Rolynn Snow intercepted a man with poor balance outside the club. He didn’t get his name, but he did get him to blow on a portable breath tester [PBT], which read a potentially dangerously high .241. Snow testified the unnamed boozehound “could barely speak” and was not “lucid.” Despite such communication problems, Snow was able to glean from the man he’d been drinking inside The Hotel, moving around the six bars to avoid being tossed out for drunkenness. Neither Snow, nor any of his colleagues, saw the apparently incoherent man in The Hotel while they were on the club’s premises. The drunk was sent off with a semi-sober friend on foot.

Other SBI agents caught five minors near the club. They all submitted to Breathalyzer tests. Three said they had entered the club with fake IDs. The cops took the IDs. But by the time of the July 2007 depositions, the Sept. 2 visit file, containing operation details and the fake IDs, had vanished. “I have to say I wasn’t happy about [the lost file],” Page says. “It’s the only time it’s ever happened.” The defense wasn’t pleased, either. “Beyond the undocumented alleged statements of these [minors],” Winder case documents stated, “there is no evidence to establish that any of these individuals were served or were consuming alcohol inside The Hotel.”

The nature of undercover operations, Page says, means “there’s a limit to the information you can secure and provide.” This doesn’t sit right with Hutton. “When the entire state is coming down on you alleging misconduct, and they don’t have a single thing—not even an employee name to begin an investigation—that’s a little bit too undercover.”

Page acknowledges that an officer’s testimony is sufficient to lead to a violation charge. Which, in turn, makes good report-writing by liquor-law agents key. The quality of a report written five days after a visit, though, might be debatable. The agents did not compile their reports of the Sept. 2 violations until five days after visiting The Hotel. They took very few notes during or immediately after the visit, relying on memory.

“Many of the conclusions of the agents involved violate the due process rights of” The Hotel and Calder, a document that Hutton filed with the DABC examiner states. The lawyers couldn’t defend their clients because there was no factual evidence that could be disputed in court. Page disagrees. “Due process is served by the hearing process, the discovery process,” she says. “They had every opportunity to gain the evidence that they did to represent themselves.”

The Hotel’s lawyers see holes throughout the case. Evidence was scant to prove Kevin Handron was overserved. There was no evidence to link Handron and Calder in any financial transaction. No record existed of Handron’s intoxication level. No one questioned him about medication he may have taken. “Why didn’t they do a breath test on Handron? Why didn’t they ascertain whether he was drunk or not?” Hutton says.