Bricktown Liquor Lic Violation Hearing
DUB~E
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MEMORANDUM
September 1, 2005
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Bricktown Liquor License Violation
Chief of Police Kim Wadding is recommending that the liquor license hearing for
Bricktown employee Shane Klaas selling or dispensing alcoholic beverages between
2:00 a.m. and 6:00 a.m. be referred by the City Council to the State of Iowa Liquor
Control Board to conduct the hearing.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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MiChael C. Van Milligen
MCVM/ksf
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Kim Wadding, Chief of Police
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MEMORANDUM
Date: September 1, 2005
To: Michael C. Van Milligen
City Manager
From: Kim B. Wadding 1J'
Police Chief ~
Re: Cooper Management Company, LLC (Bricktown) - Administrative Hearing
INTRODUCTION
The purpose of the memorandum is to recommend administrative action regarding
Cooper Management, LLC (Bricktown) concerning a March 31,2005 incident where one
of the bar managers, Shane Klaas, was cited for providing alcohol after hours.
BACKGROUND
On August 31,2005, the police department received a copy of an Order regarding an
evidence suppression hearing held on July 25, 2005 concerning an incident occurring at
the Cooper Management, LLC (Bricktown) March 31,2005. The Order issued by
Richard R. Gleason, District Associate Judge, ruled the evidence gained after entry by
the officer is inadmissible because the officer entered through a door that was locked
without invitation and without a warrant after the business was closed.
On March 31,2005 shortly after 2:00 A.M., a Dubuque Police Officer responded to
Cooper Management, LLC (Bricktown) at the request of another officer to determine
how Bricktown employees were issuing wristbands to patrons. Upon arrival, the officer
approached the Main Street doors of the business, opened the door and went down the
stairs to a second door that leads into the bar. When the officer came to the bar door,
the door was locked. The officer heard voices and loud music coming from inside the
bar area. As the officer stood at the door, a couple pushed open the door to exit
allowing the officer to enter. As the officer entered, he observed a young female patron
at the bar with a mixed alcoholic drink in her hand talking with owner, Scott
Neuwoehner. Standing close by was co-owner, Greg Prehm. There were approximately
15 other subjects in the bar.
The officer determined the female patron to be under the legal age for possessing
alcohol (20 years old), and intoxicated. The female patron told the officer she was
allowed into the bar by one of the Bricktown bouncers she knew without showing any
identification, as she had been at Bricktown on previous occasions. When the
investigating officer asked Scott Neuwoehner about the alcohol service after 2:00 A.M.,
Scott Neuwoehner said he knows they cannot have it out, that they were just allowing
people to wait for cabs. The investigating officer arrested the female for Public
Intoxication and Under Age Possession of Alcohol. Although not present when the
officer first arrived, the bar manager, Shane Klaas, told the officer he was the person in
charge. Shane Klass was cited for providing alcohol after hours. The female patron was
transported to the Dubuque County Jail and placed in jail.
DISCUSSION
Although the recent court decision restricts the introduction of evidence in this particular
case from the time the officer enters past the locked door, administrative civil remedies
remain. Both the Alcoholic Beverages Division and the local authority have the authority
to impose administrative sanctions on a licensee's license if the licensee is found in
violation of the laws and rules governing the license. If licensees (their employees and
agents) violate the laws and rules governing the license, the division or the local
authority may:
. Impose a civil penalty of up to $1,000 per violation
. Suspend the license from one to 365 days
. Revoke the license.
Local authorities also may impose suspensions or revocations for violations of local
ordinances governing the license. (Local authorities may not impose civil penalties for
violations of local ordinances.) Administrative sanctions are separate from criminal
convictions. Administrative sanctions may be imposed as the result of a criminal
conviction or in the absence of a criminal conviction.
Administrative hearing complaints alleging violations of Iowa Code chapter 123 must be
filed with the Alcoholic Beverages Division or the local authority within one year from the
date of the alleged violation or within one year from the date of conviction, whichever is
later. A city attorney, county attorney or an assistant attorney general may file
complaints.
The filing of a complaint follows a similar path for both the local authority and the Iowa
Alcoholic Beverages Division. When the complaint is filed by the Iowa Alcoholic
Beverages Division the hearing is held in the division's central offices, located in
Ankeny, Iowa. An administrative law judge from the Department of Inspections and
Appeals holds the hearing. All hearings are open to the public and are tape-recorded.
Licensees may represent themselves or hire an attorney at their expense. Both sides
may offer any witnesses or evidence at the time of the hearing.
Following the hearing, the administrative law judge issues a decision. The decision is in
writing and is forwarded to all interested parties by mail. The decision may:
. Impose a civil penalty of up to $1,000 per violation
. Suspend the license from one to 365 days.
. Revoke the license.
. Dismiss all or part of the allegations cited in the administrative hearing
complaint.
The decision becomes a final decision unless a request for review is filed with the Iowa
Alcoholic Beverages Division administrator. If a party objects to a decision, they may
ask the Alcoholic Beverages Division administrator to review the decision. The request
must be in writing and filed with the division within 21 days of receiving the decision.
Once a final decision is made by the administrator notifications is made by mail to all
interested parties. The final decision may affirm, reverse or modify the decision. The
administrator's final decision is the final agency action. The next step in the appeal
process is to district court.
If the local authority chooses to hear the complaint, the hearing is heard by the City
Council. All hearings are open to the public and are tape-recorded. Licensees may
represent themselves or hire an attorney at their expense. Both sides may offer any
witnesses or evidence at the time of the hearing.
Following the hearing, the City Council issues a decision. The decision may:
. Impose a civil penalty of up to $1,000 per violation
. Suspend the license from one to 365 days.
. Revoke the license.
. Dismiss all or part of the allegations cited in the administrative hearing
complaint.
When the local authority (City Council) imposes an administrative sanction, the licensee
may appeal the action to the Iowa Alcoholic Beverages Division. The appeal must be in
writing and filed within 21 days from the date the licensee received notification of the
decision. An administrative law judge from the Department of Inspections and Appeals
hears the appeal in the Iowa Alcoholic Beverages Division offices located in Ankeny,
Iowa. Hearings are open to the public and taped-recorded. Following the appeal
hearing, the administrative law judge issues a decision. The decision is in writing and
mailed to all interested parties. The decision may affirm, reverse, modify or dismiss the
civil penalty or license suspension or revocation imposed by the local authority.
The proposed decision becomes a final decision unless a request for review is filed with
the Iowa Alcoholic Beverages Division administrator. The request must be in writing and
filed with the division within 21 days of receiving the decision. Once a final decision is
made notifications are made by mail to all interested parties. The final decision may
affirm, reverse or modify the decision. The administrator's final decision is the final
agency action. The next step in the appeal process is to district court.
RECOMMENDATION
Due to the complexity of the recent court ruling regarding the suppression of evidence in
the criminal proceedings and knowing the Iowa Alcoholic Beverages Division is part of
the appeal process, we recommend the administrative civil action be submitted to the
Iowa Alcoholic Beverages Division for review and the filing of the complaint.
ACTION REQUESTED
City Council consideration to approve the filing of the administrative sanction action to
the Iowa Alcoholic Beverages Division for review and formal filing of the complaint as to
the allegations of the events of March 31,2005 at the Cooper Management, LLC
(Bricktown) 299 Main Street involving the consumption of alcohol beverages after
closing hours.
Cc: Barry Lindahl, Corporation Attorney
Bill Blum, City Solicitor
Cindy Steinhauser, Assistant City Manager
Jeanne Schneider, City Clerk
William G. Blum
Solicitor
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 557-1310 office
(563) 583-1040 fax
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August 31,2005
Mayor Terrance Duggan and
Members of the City Council
City Hall - City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
RE: State of Iowa vs. Shane Klaas (Bricktown Employee)
Dear Mayor and Council Members:
Enclosed is a copy of an Order entered recently by the Iowa District Court for Dubuque
County in the case in which the Defendant received a citation for selling or dispensing
alcoholic beverages between 2:00 a.m. and 6:00 a.m. at the Bricktown Bar at 299 Main
Street. The Defendant challenged a police officer's entry into the establishment without
a warrant. The officer entered the establishment at approximately 2:47 a.m. on March
31, 2005 when he received a call from a fellow officer. When the officer arrived at the
establishment, the outside doors were open but the inside door was locked. When two
people left and opened the previously locked door, the officer entered and eventually
issued the citation.
The Defendant filed a Motion to Suppress the Evidence obtained by the officer claiming
that the search was improper. The Court held that after the establishment was closed,
the Defendant had an expectation of privacy under the Fourth Amendment to the United
States Constitution and that the officer could not enter the premises without a warrant.
The Order suppresses any evidence gathered by the officer which means that it cannot
be introduced during the State's case on the criminal charge.
Iowa law does not permit an appeal in this situation because the charge is a
misdemeanor.
Nonetheless, we have reviewed the Court's Order and disagree with the conclusion.
Iowa Code 9123.30 provides that as a condition for issuance of a liquor license or wine
or beer permit, the applicant is consenting to members of the police department to enter
upon the premises "without a warrant during business hours of the licensee or permittee
to inspect for violations" of state or local law. The Administrative Regulations of the
Alcoholic Beverages Division defines "business hours" as hours during which
"licensees, their agents, employees and patrons are in a licensed establishment."
Because there were patrons exiting the building and employees in the establishment at
Service
People
Integrity
Responsibility
Innovation
Teamwork
the time the officer entered, the officer had the right to enter the premises without a
warrant.
Although we disagree with the Court's conclusion, Iowa law does not permit an appeal
of this Order because the charge is a misdemeanor. If an appeal had been permitted,
we would have recommended that the County Attorney's Office, which handled the
case, appeal the Order.
Although the Order suppresses any evidence gathered by the officer for purposes of the
State's criminal charge, it is my opinion that it does not prevent the officer from testifying
in an administrative hearing to determine whether civil penalties should be assessed.
If you have any questions, please don't hesitate to call me.
Sincerely,
wJLJ>~
William G. Blum
City Solicitor
WGB:tls
Enclosure
cc: Michael C. Van Milligen, City Manager
08/30/2005 TUE 17:13 FAX 319 589 4497 DlmUQUE POLICE
AUG::-30~200S rUE 03: 32 PM DI:IQ COUNTY ArIUltNtY:s tHh NU. Obj 00::1 '1'111
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNlY
STATE OF IOWA, )
)
Plaintiff, ) Criminal No(s). SMCR64841
)
vs. ) ORDER
)
SHANE KLAAS, )
)
Defendant. }
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The above-entitled matter came before the COlJrt for a suppression hearing on July 25,
2005. The defendant was present in court with his attomey, Joseph Bitter, and the St.ate
was represented by Assistant County Attorney Alisha Stach.
The defendant received a citation for selling or dispensing alcoholic beverages between
2:00 a.m. and 6:00 a.m. at the Bricktawn 6arat 299 Main Street, Dubuque, Iowa. He
challenges the officers entry into the establishment without a warrant. Officer Martin
Steil of the Dubuque Police Department testified that at approximately 2:47 a.m. on
March 31, 2005, he received a call from a fellow officer. The fellow officer requested
that Officer Steil go to the Bric)down Bar to check to see what certain wristbands meant.
Officer Steil arrived, and the outside doors were open to the establishment. However,
the inside door was locked. When two people left and opened the previously locked
door. Officer Steil entered and eventually issued the citation.
Neither the State, nor the defense, has provided the Court with any case on point. The
Court has, however, reviewed all of the citations provided by each of th~ parties.
Furthermore, the Court reviewed a secondi;1ry source on the is~Ue - "Search and
Seizure" Third Edition, LaFave. Mr. LaFave, in his treatise, discusses the general
circumstances surrounding the unwarranted search ofthe premises of a business. In
summarYI Mr. LaFave states that the U,S. Supreme Court's ruling on business privacy
protection, under the Fourth Amendment, states: "For his actions not to constitute a
Fourth Amendment search, the officer must remain In that pertion of the premises which
is open to the public." There were no specific cases cited in the treatise concerning the
entry of an officer into a closed establishment such as Bricktown. However, one of the
cases held, in a reverse sitl..lation, that: I'None of the plaintiffs had a reasonable
expectation of privaoy during business hours." The converse is, of course, that a plaintiff
does have a reasonable expectation of privacy after the business is closed and locked.
The State is right that a business establishment does possess a lesssr expectation of
privaoy than does a homeowner. However, this lesser expectation of privacy exists only
during those times that the business is open and only applies to the areas which are
accessible to the public.
1
08/30/2005 TUE 17:13 FAX 319 589 4497 DlmUQlffi POLICE
. AUG:-30-:-2005 rUE 03:33 PM DBQ OOUNTY ATTORNEYS fAX NO. b63 btl8 44n
l4J003
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In this case, Officer Steil entered a door that was locked without invitation and withoLlt
warrant. The occupants of the establisJ:lment had a reasonable expectation of privacy
that no one would enter the premises after they had locked the door. The entry, under
these circumstances, was lIlega!.
IT IS THEREFORE ORDERED that any evidence gathered after Officer Steil entered
into Srlcktown on that night is Buppressed and shall not be introduced during the State's
case in chief.
This matter is reset for a final pretrial conference on September 1, 2005, at 1 :30 p.m.
The defendant must be present in person with counsel. Trial is reset for September 12.
2005, at 9:30 a.m. The speedy trial deadline in this matter Is April 21, 2006,
Done and Orderr;ld this August 24, 2005.
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DISTRICT ASSOCIATE JUDGE
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THE CITY OF (-. ....~---t-
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William G. Blum
Solicitor
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 557-1310 office
(563) 583-1040 fax
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August 31, 2005
Mayor Terrance Duggan and
Members of the City Council
City Hall - City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
RE: State of Iowa vs. Shane Klaas (Bricktown Employee)
Dear Mayor and Council Members:
Enclosed is a copy of an Order entered recently by the Iowa District Court for Dubuque
County in the case in which the Defendant received a citation for selling or dispensing
alcoholic beverages between 2:00 a.m. and 6:00 a.m. at the Bricktown Bar at 299 Main
Street. The Defendant challenged a police officer's entry into the establishment without
a warrant. The officer entered the establishment at approximately 2:47 a.m. on March
31, 2005 when he received a call from a fellow officer. When the officer arrived at the
establishment, the outside doors were open but the inside door was locked. When two
people left and opened the previously locked door, the officer entered and eventually
issued the citation.
The Defendant filed a Motion to Suppress the Evidence obtained by the officer claiming
that the search was improper. The Court held that after the establishment was closed,
the Defendant had an expectation of privacy under the Fourth Amendment to the United
States Constitution and that the officer could not enter the premises without a warrant.
The Order suppresses any evidence gathered by the officer which means that it cannot
be introduced during the State's case on the criminal charge.
Iowa law does not permit an appeal in this situation because the charge is a
misdemeanor.
Nonetheless, we have reviewed the Court's Order and disagree with the conclusion.
Iowa Code 9123.30 provides that as a condition for issuance of a liquor license or wine
or beer permit, the applicant is consenting to members of the police department to enter
upon the premises "without a warrant during business hours of the licensee or permittee
to inspect for violations" of state or local law. The Administrative Regulations of the
Alcoholic Beverages Division defines "business hours" as hours during which
"licensees, their agents, employees and patrons are in a licensed establishment."
Because there were patrons exiting the building and employees in the establishment at
Service
People
Integrity
Responsibility
Innovation
Teamwork
the time the officer entered, the officer had the right to enter the premises without a
warrant.
Although we disagree with the Court's conclusion, Iowa law does not permit an appeal
of this Order because the charge is a misdemeanor. If an appeal had been permitted,
we would have recommended that the County Attorney's Office, which handled the
case, appeal the Order.
Although the Order suppresses any evidence gathered by the officer for purposes of the
State's criminal charge, it is my opinion that it does not prevent the officer from testifying
in an administrative hearing to determine whether civil penalties should be assessed.
If you have any questions, please don't hesitate to call me.
Sincerely,
wJLJ>~
William G. Blum
City Solicitor
WGB:tls
Enclosure
cc: Michael C. Van Milligen, City Manager
08/30/2005 11m 17:13 FAX 319 589 4497 DlffiU U
AUG-30-2005 rUE 03:32 PM D!;Q COUNTY fflTUltNtr::5 Q E p~~~c~u,
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IN THE DISTRICT COURT OF IOWA, IN AND FOR DUaUQUE COUNlY
STATE OF IOWA, )
)
Plaintiff, ) Criminal No(s). SMCR64B41
)
vs. ) ORDER
)
SHANE KLAAS, )
)
Defendant. )
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The above-entitled matter came before the COl.lrt for a suppression hearing on July 25,
2005. The defendant was present in court with his attorney, Joseph 6itter, and the St~te
was represented by Assistant COLlnty Attorney Alisha Stach.
The defendant received a citation for selling or dispensing alcoholic: beverages between
2:00 a.m. and 6:00 a.m. at the Bricktown Bar at 299 Main Street, Dubuque, Iowa. He
challenges the offioers entry into the establishment without a warrant. Officer Martin
Steil of the DUbuque Police Department testified that at approximately 2:47 a.m. on
March 31, 2005, he received a call from a fellow officer. The fellow officer requested
that Officer Steil go to the Bricktown Bar to check to see what certain wristbands meant.
Officer Steil arrived, and the outside doors were open to the establishment. However,
the inside door was locked. When two people left end opened the previously locked
dOOf. Officer Steil entered and eventually issued the citation.
Neither the State. nor the defense, has provided the Court with any case on point. The
Court has, however, reviewed all of the citations provided by each of the parties.
Furthermore, the Court reviewed a secondary source on the iseue -I4Search and
Seizure" Third Edition, LaFave. Mr. LaFave, in his treatise, discusses the general
Circumstances surrounding the unwarranted search of the premises of a business. In
summary. Mr. LaFave states that the U.S. Supreme Court's ruling on business privacy
protection, under the Fourth Amendment, states: "For his actions not to constitute a
Fourth Amendment search, the officer must remain In that portion of the premises Which
is open to the public." There were no specific cases cited in the treatise concerning the
entry of an officer into a closed establishment such as Bricktown. However, one of the
cases held, in a reverse situation, that: I'None of the plaintiffs had a reasonable
expectation of privaoy during business hours." The converse is, of course, that a plaintiff
does have a reasonable expectation of privacy after the business is closed and locked.
The State is right that a business establishment does possess a lesselr expectation of
privacy than does a homeowner. However, this lesser expectation of privacy exists only
during those times that the business is open and only applies to the areas which are
accessible to the public.
1
08/30/2005 TlTE 17:13 FAX 319 589 4497 DUBUQlffi POLICE
AUG-30:-2005 TUE 03:33 PM DBQ COUNTY ATTORNEYS FAX NO. b63 otiS 44n
141003
l". Uj
In this case, Officer Steil entered a door that was locked without invitation and withoLlt
warrant. The occupants of the establishment had a reasonable expectation of privacy
that no one would enter the premises after they had locked the door. The entry, under
these circumstances, was lIIega!.
IT IS THERE.FORE ORDERED that any evidence gathered after Officer Steil entered
into Brlcktown on that night is Buppressed and shall not be introdueed during the State's
case in chief.
This matter is reset for a final pretrial conference on September 1, 2005, at 1 :30 p.m.
The defendant must be present in person with counsel. Trial is reset for September 12,
2005, at 9:30 a.m. The speedy trial deadline in this matter Is April 21, 2006,
Done and Orden;t~ this August 24, 2005.
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RICHARD R GLEASON
DISTRICT ASSOCIATE JUDGE
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