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Charge dismissed against Sterling business

City plans to correct, clarify ordinance after Main Street Wine Cellar hearing

STERLING – An error in the city’s liquor code led to the dismissal Wednesday of a case against a local business that had been accused of a violation.

The Main Street Wine Cellar, 25 E. Third St. in Sterling, was accused of allowing people on the premises after hours in August.

The bar went before the city’s three-member liquor commission on Wednesday morning.

According to a hearing notice sent to bar owner Anne Welch, “on Aug. 22, 2012, ... the licensee, her employees or agents committed the offense of allowing a person or persons to remain upon the licensed premises after 1:30 a.m.”

Attorney Jim Mertes, who represented Welch, presented the council with a legal argument for dropping the charges.

In the hearing notice, the part of the code the business is accused of violating is 6-6(a)(3). Mertes referred to the city’s code as it is found on the city’s website,

According to that section of the code, “no person, including a licensee shall remain upon any licensed premise after 2:15 a.m. on any day of the week; except New Year’s Day at 2:45 a.m.”

Mertes said the business is accused of doing something which the city’s own code does not prohibit.

Sterling City Attorney Ron Coplan said the hearing notice should have listed 6-6(a)(2) instead of the (a)(3). However, the city’s code in that section contains an error.

As it reads now, the code states “no person other than a licensee or an employee or agent of a licensee shall remain upon any licensed premise after 1:15 p.m. on any day of the week.”

The sentence should read 1:15 a.m. instead.

In addition, Mertes took issue with another aspect of the code. According to the code, no one is supposed to be on the premises after 2:15 a.m.

“There’s a significant, substantial problem with the ordinance as it’s now written,” he said. “It provides no person including a licensee shall remain upon any licensed premises after 2:15 a.m. on any day of any week. What does that mean? It means that if someone’s present at noon, that’s a time occurring after 2:15 a.m.”

Should the city choose to proceed with charges, Mertes said, he is prepared to take the matter to the circuit court. He said the charges would not hold there.

Coplan acknowledged the errors, and said action would be taken to correct them. He said the code would be revised to include language explicitly stating the times people should not be on the premises, to avoid any room for misinterpretation.

He also said the typographical error would be fixed.

After briefly deliberating, the commission decided to dismiss the charge.

Sterling Mayor Skip Lee, also the city’s liquor commissioner, asked Mertes to inform his client of the code and rules that businesses must follow.

It is not the establishment’s “first dance in the park” when it comes to liquor code violations, Lee said.

In April 2011, the Wine Cellar was fined $350 for selling liquor after 11 p.m. and for allowing people in the establishment after 11:45 p.m. on Dec. 5, 2010, and March 27, 2011. Those violations occurred before the city liquor code was revised, allowing people on site until 1:30 a.m.

Lee said businesses should be aware of the city’s liquor code.

All businesses were sent a letter signed by the mayor informing them of the changes to the code.

Dated Dec. 21, 2011, the letter read in part: “Beginning immediately, all establishments in properly zoned areas may sell liquor any day of the week from 6 a.m. to 1 a.m. the following day.”

“The change to closing times is when all employees must leave the establishment,” the letter continues. “A few establishments were having difficulty cleaning up and vacating the premises by 1:45 a.m. This time has been extended to 2:15 a.m. This is an absolute close time, no exceptions will be made.”

When asked why the letter sent to establishments wasn’t considered more, Lee said the ultimate reference is the ordinance that’s on file for public viewing.

“What is on file for the public to view to comply with is what we have on the website,” Lee said. “That needs to be edited and will be.”

All business owners were invited to public meetings to solicit input to the code, Coplan said after the hearing.

Coplan said the revisions to the city’s code will be on the council’s agenda during its meeting Monday night.

“It’s a technicality,” he said. “Future infractions will be handled on the basis of the facts at the case at that time. The commission has a policy of progressive discipline. This will not be a violation because they were not convicted.”

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