HomeMy WebLinkAboutStudy Session Agenda Packet 07-01-19STUDY SESSION AGENDA
CITY COUNCIL CITY OF WHEAT RIDGE, COLORADO
7500 W. 29th Ave.
Wheat Ridge CO
July 1, 2019
6:30 p.m.
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Citizen Comment on Agenda Items
1.Creation of a City Ethics Code
2.Rezoning Protest Procedures
3.2019 Liquor Code Amendments
4.Staff Report(s)
5.Elected Officials’ Report(s)
ADJOURNMENT
MEMORANDUM
TO: Mayor and Council FROM: Gerald E. Dahl, City Attorney
DATE: June 24, 2019
RE: Creation of a City Ethics Code
Pursuant to Council’s direction at study session, this memo has three objectives: (1)Summarize the Independent Ethics Commission’s (IEC) jurisdiction;(2)Describe how Wheat Ridge, as a home rule city, can preempt the IEC’s jurisdiction witha local city ethics code; and(3)Recommend elements of a local ethics code for Council discussion.
The Colorado Independent Ethics Commission
Amendment 41 was a citizen initiative adopted by Colorado voters in the 2006 general election. It adopted Article XXIX to the Colorado Constitution entitled “Ethics in Government,” which governs gift bans, restrictions on representation after leaving office, and established the IEC to hear complaints, issue findings, and assess penalties, and issue advisory opinions on ethics issues
arising under that article.
According to the Colorado IEC “Ethics Handbook,” 3rd ed., 2016, although not specifically stated, the IEC also claims matter jurisdiction over: conflicts of interest, appearance of impropriety and post-government employment. This places the City under the IEC’s jurisdiction unless it acts to adopt a local ethics code.
Local Preemption
Section 7 Article XXIX specifically states: “The requirements of this article shall not apply to home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by this article.”
The Wheat Ridge home rule charter, at Sections 3.14 and 4.10, contains very minimal conflict
of interest provisions which likely do not rise to the level of a full local ethics code. Until Wheat Ridge adopts its own Ethics Code, any person may file a written complaint with the IEC asking whether a local official or government employee has failed to comply with that article within the preceding twelve months.
IEC v. Dunafon: Confirming home rule pre-emption (decided 1/3/19)
Summary: Citizen filed ethics complaints with IEC against Glendale mayor. The District Court held that under Article XXIX Section 7, because Glendale had adopted a code of ethics that addressed the subject matters of ethics complaints, the IEC lacked jurisdiction. The Court explained that the plain language of the Constitution Article XXIX Section 7 is clear and allows
Item No. 1
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a carve-out for a home rule municipality so long as it adopts rules that deal with ethical standards of conduct:
It follows that the jurisdiction of the IEC is determined by whether the municipality is or is not a home rule entity. By adopting a Code of Ethics,
Glendale clearly intended to take advantage of Article XXIX’s carve-out
provision.
Topics to address in a Wheat Ridge ethics code to pre-empt IEC
Gift Bans Pursuant to Article XXIX of the Colorado Constitution, the IEC has jurisdiction over the “gift
ban.” A public official or employee is prohibited from accepting a gift valued in excess of $59
(originally $50, adjusted for inflation every four years) from any person in any calendar year, with limited exceptions. If an individual pays for an item, or otherwise provides consideration (the giving of value in exchange for a thing of value) the item may not qualify as a gift. Many decisions by the IEC address the issue of whether or not a given item qualifies as a gift for purposes
of Article XXIX. As explained in their “Ethics Handbook,” IEC has interpreted their
constitutional authority to impose the following restrictions on gifts:
• A gift may include:
− Money;
− Forgiveness of debt;
− Loans;
− Rewards;
− Travel (with some exceptions);
− Promises of future employment (in certain circumstances);
− Favors and services;
− Some forms of honoraria;
− Entertainment; or
− Special discounts not available to others.
• Exceptions to gift ban may include:
− Campaign contributions;
− Unsolicited items of trivial value (pen, desk set, notepad, calendar, etc.);
− Unsolicited tokens of appreciation (plaque, trophy, etc.);
− Admission to and the cost of food and beverages at a reception, meal or meeting
when the individual is participating as a speaker or presenter;
− Travel to conventions or meetings when the offer is made ex officio, is related to the person’s official duties, is of benefit to the state, the individual is representing the state, or the state pays dues to the sponsoring organization (other exceptions may apply depending on circumstances);
− Gifts from relatives and friends; or
− Bonuses or other incentives or compensation paid in the course of employment.
Suggested language for a Wheat Ridge ethics code “Gifts; gratuities”
(a) No officer or employee of the City may:
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(1) Accept a gift, gratuity or item of substantial value or a substantial economic benefit from a person interested in any public matter over which the officer or employee has authority or control:
a. Which would tend improperly to influence a reasonable person in his or her
position to depart from the faithful and impartial discharge of his or her
public duties; or
b. Which he or she knows or which a reasonable person in his or her position should know under the circumstances is primarily for the purpose of rewarding him or her for official action he or she has taken.
(b) A “substantial economic” benefit includes without limitation a loan at a rate of interest
substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of such services
(c) The following shall not be considered gifts of substantial value or gifts of substantial
economic benefit for purposes of this Section:
(1) Campaign contributions and contributions in kind reported as required by Section 1-45-108, C.R.S.;
(2) An occasional nonpecuniary gift, insignificant in value;
(3) A nonpecuniary award publicly presented by a nonprofit organization in
recognition of public service;
(4) Payment of or reimbursement for actual and necessary expenditures for travel and subsistence for attendance at a convention or other meeting at which such officer or employee is scheduled to participate;
(5) Reimbursement for or acceptance of an opportunity to participate in a social
function or meeting which is not extraordinary when viewed in light of the position
held by such officer or employee;
(6) Items of perishable or nonpermanent value, including but not limited to meals, lodging, travel expenses or tickets to sporting, recreational, educational or cultural events;
(7) Payment for speeches, appearances or publications reported;
(8) Payment of salary from employment, including other government employment, in addition to that earned by reason of service in public office;
(9) Gifts, gratuities or items of value received by the spouse or dependent children of the officer or employee which do not implicate the standards of Subparagraphs
(a)(1)a and b of this Section.
(10) Gratuities received by the municipal judge for services rendered in addition to official judicial duties (e.g., marriage ceremonies).
(d) This Section is to guard officials and employees of the City from relationships which may be construed as evidence of favoritism, coercion, unfair advantage or collusion.
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Conflicts of Interest Article XXIX section 5(1) also bestows jurisdiction on the IEC regarding “any other standards of conduct and reporting requirements as provided by law.” According to the IEC, a few common examples of the “other standards of conduct” under their purview include conflicts of interest, and
the appearance of impropriety.
Suggested language for City ethics code:
(a) No officer or employee shall engage in any employment, business or investment or other undertaking which may substantially conflict with the proper discharge of his or her official duties.
(b) No officer or employee shall have a substantial financial or personal interest, direct or
indirect, in any transaction with any City department, the City Council or any board or commission over which he or she has the power to take or influence official action. A contract in violation of this Section may be declared void at the option of the City Council in addition to any other remedies provided by law.
(c) No officer or employee shall disclose or use confidential information acquired in the course
of his or her official duties in order to further substantially his or her personal financial interests.
Appearance of Impropriety Suggested language for City ethics code:
(a) Officers and employees shall at all times be sensitive to and exercise prudent restraint in
avoiding even the appearance of impropriety, although the underlying conduct does not in fact violate the Charter, this code of ethics or other applicable City ordinance or state or federal law.
(b) Officers, including members of the City Council, boards and commissions, who will be or
are engaged in quasi-judicial decision-making activities, should avoid contact or discussion
outside the hearing process with any of the parties having an interest in the decision.
Enforcement It will be important to articulate how the City ethics code is enforced, as well as the general process to report and address complaints. The following model language is a combination of a
number of cities’ approaches:
(a) The Council shall have the exclusive authority for enforcement of the ethics code.
(b) The Council may dismiss frivolous complaints.
(c) With respect to complaints that the Council does not deem to be frivolous, the Council may hold a public hearing, if desired. The Council may render findings on non-frivolous
complaints orally at the hearing or by adopting written findings.
(d) All complaints must be filed within 90 days after the date of the alleged violation.
(e) The Council shall take such action and impose such penalty, if any, as it deems appropriate.
(f) Final action by the Council shall be final action by the City on the matter.
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Subject matters not under IEC’s jurisdiction, but commonly found in Ethics Codes: The below topics are not considered as being within the IEC’s authority. Nonetheless, they are commonly discussed in many local ethics codes.
Nepotism
• No council member or employee may be in a position to directly or indirectly exercise supervisory, appointment, disciplinary or dismissal authority over a member of that council member’s or employee’s immediate family.
• No council member or employee may be in a position to audit, verify, receive or to be
trusted with moneys received or handled by a member of that council member’s or employee’s immediate family.
• No council member or employee may have access to the City’s confidential information, including payroll and personnel records relating to a member of that council member’s or
employee’s immediate family.
Campaign Finance limitations We recommend no local rule here, and that Wheat Ridge continue to follow the State constitution at XXVIII and statutes in C.R.S. 1-45-101, et seq, entitled “State and political subdivisions – limitations on contributions.”
ATTACHMENTS:
1. Article XXIX Ethics in Government (Amendment 41)
Article XXIX Ethics in government (Amendment 41)
Section 1. Purposes and findings
(1) The people of the state of Colorado hereby find and declare that:
(a) The conduct of public officers, members of the general assembly, local
government officials, and government employees must hold the respect and
confidence of the people;
(b) They shall carry out their duties for the benefit of the people of the
state;
(c) They shall, therefore, avoid conduct that is in violation of their public
trust or that creates a justifiable impression among members of the public
that such trust is being violated;
(d) Any effort to realize personal financial gain through public office other
than compensation provided by law is a violation of that trust; and
(e) To ensure propriety and to preserve public confidence, they must have
the benefit of specific standards to guide their conduct, and of a penalty mechanism to enforce those standards.
(2) The people of the state of Colorado also find and declare that there are
certain costs associated with holding public office and that to ensure the
integrity of the office, such costs of a reasonable and necessary nature
should be born by the state or local government.
Section 2. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Government employee" means any employee, including independent
contractors, of the state executive branch, the state legislative branch, a
state agency, a public institution of higher education, or any local
government, except a member of the general assembly or a public officer.
(2) "Local government" means county or municipality.
(3) "Local government official" means an elected or appointed official of a
local government but does not include an employee of a local government.
ATTACHMENT 1
(4) "Person" means any individual, corporation, business trust, estate, trust,
limited liability company, partnership, labor organization, association,
political party, committee, or other legal entity.
(5) "Professional lobbyist" means any individual who engages himself or
herself or is engaged by any other person for pay or for any consideration
for lobbying. "Professional lobbyist" does not include any volunteer lobbyist,
any state official or employee acting in his or her official capacity, except
those designated as lobbyists as provided by law, any elected public official
acting in his or her official capacity, or any individual who appears as
counsel or advisor in an adjudicatory proceeding.
(6) "Public officer" means any elected officer, including all statewide elected
officeholders, the head of any department of the executive branch, and
elected and appointed members of state boards and commissions. "Public
officer" does not include a member of the general assembly, a member of
the judiciary, any local government official, or any member of a board,
commission, council or committee who receives no compensation other than
a per diem allowance or necessary and reasonable expenses.
Section 3. Gift ban.
(1) No public officer, member of the general assembly, local government
official, or government employee shall accept or receive any money,
forbearance, or forgiveness of indebtedness from any person, without such
person receiving lawful consideration of equal or greater value in return from the public officer, member of the general assembly, local government
official, or government employee who accepted or received the money,
forbearance or forgiveness of indebtedness.
(2) No public officer, member of the general assembly, local government
official, or government employee, either directly or indirectly as the
beneficiary of a gift or thing of value given to such person's spouse or
dependent child, shall solicit, accept or receive any gift or other thing of
value having either a fair market value or aggregate actual cost greater than
fifty dollars ($50) in any calendar year, including but not limited to, gifts,
loans, rewards, promises or negotiations of future employment, favors or
services, honoraria, travel, entertainment, or special discounts, from a
person, without the person receiving lawful consideration of equal or greater value in return from the public officer, member of the general assembly,
local government official, or government employee who solicited, accepted
or received the gift or other thing of value.
(3) The prohibitions in subsections (1) and (2) of this section do not apply if
the gift or thing of value is:
(a) A campaign contribution as defined by law;
(b) An unsolicited item of trivial value less than fifty dollars ($50), such as a
pen, calendar, plant, book, note pad or other similar item;
(c) An unsolicited token or award of appreciation in the form of a plaque,
trophy, desk item, wall memento, or similar item;
(d) Unsolicited informational material, publications, or subscriptions related
to the recipient's performance of official duties;
(e) Admission to, and the cost of food or beverages consumed at, a
reception, meal or meeting by an organization before whom the recipient
appears to speak or to answer questions as part of a scheduled program;
(f) Reasonable expenses paid by a nonprofit organization or other state or local government for attendance at a convention, fact-finding mission or trip,
or other meeting if the person is scheduled to deliver a speech, make a
presentation, participate on a panel, or represent the state or local
government, provided that the non-profit organization receives less than five
percent (5%) of its funding from for-profit organizations or entities;
(g) Given by an individual who is a relative or personal friend of the recipient
on a special occasion.
(h) A component of the compensation paid or other incentive given to the
recipient in the normal course of employment.
(4) Notwithstanding any provisions of this section to the contrary, and
excepting campaign contributions as defined by law, no professional
lobbyist, personally or on behalf of any other person or entity, shall
knowingly offer, give, or arrange to give, to any public officer, member of
the general assembly, local government official, or government employee, or
to a member of such person's immediate family, any gift or thing of value, of
any kind or nature, nor knowingly pay for any meal, beverage, or other item
to be consumed by such public officer, member of the general assembly,
local government official or government employee, whether or not such gift
or meal, beverage or other item to be consumed is offered, given or paid for
in the course of such lobbyist's business or in connection with a personal or
social event; provided, however, that a professional lobbyist shall not be
prohibited from offering or giving to a public officer, member of the general
assembly, local government official or government employee who is a
member of his or her immediate family any such gift, thing of value, meal,
beverage or other item.
(5) The general assembly shall make any conforming amendments to the
reporting and disclosure requirements for public officers, members of the
general assembly and professional lobbyists, as provided by law, to comply
with the requirements set forth in this section.
(6) The fifty-dollar ($50) limit set forth in subsection (2) of this section shall
be adjusted by an amount based upon the percentage change over a four-
year period in the United States bureau of labor statistics consumer price
index for Denver-Boulder-Greeley, all items, all consumers, or its successor
index, rounded to the nearest lowest dollar. The first adjustment shall be
done in the first quarter of 2011 and then every four years thereafter.
Section 4. Restrictions on representation after leaving
office.
No statewide elected officeholder or member of the general assembly shall
personally represent another person or entity for compensation before any
other statewide elected officeholder or member of the general assembly, for
a period of two years following vacation of office. Further restrictions on
public officers or members of the general assembly and similar restrictions
on other public officers, local government officials or government employees may be established by law.
Section 5. Independent ethics commission.
(1) There is hereby created an independent ethics commission to be
composed of five members. The purpose of the independent ethics
commission shall be to hear complaints, issue findings, and assess penalties,
and also to issue advisory opinions, on ethics issues arising under this article
and under any other standards of conduct and reporting requirements as
provided by law. The independent ethics commission shall have authority to
adopt such reasonable rules as may be necessary for the purpose of
administering and enforcing the provisions of this article and any other
standards of conduct and reporting requirements as provided by law. The
general assembly shall appropriate reasonable and necessary funds to cover
staff and administrative expenses to allow the independent ethics
commission to carry out its duties pursuant to this article. Members of the
commission shall receive no compensation for their services on the
commission.
(2) (a) Members of the independent ethics commission shall be appointed in
the following manner and order:
(I) One member shall be appointed by the Colorado senate;
(II) One member shall be appointed by the Colorado house of
representatives;
(III) One member shall be appointed by the governor of the state of
Colorado;
(IV) One member shall be appointed by the chief justice of the Colorado
supreme court; and
(V) One member shall be either a local government official or a local
government employee appointed by the affirmative vote of at least three of
the four members appointed pursuant to subparagraphs (I) to (IV) of this
paragraph (a).
(b) No more than two members shall be affiliated with the same political
party.
(c) Each of the five members shall be registered Colorado voters and shall
have been continuously registered with the same political party, or
continuously unaffiliated with any political party, for at least two years prior
to appointment to the commission.
(d) Members of the independent ethics commission shall be appointed to
terms of four years; except that, the first member appointed by the
Colorado senate and the first member appointed by the governor of the
state of Colorado shall initially serve two year terms to achieve staggered
ending dates.
(e) If a member is appointed to fill an unexpired term, that member's term shall end at the same time as the term of the person being replaced.
(f) Each member shall continue to serve until a successor has been
appointed, except that if a member is unable or unwilling to continue to
serve until a successor has been appointed, the original appointing authority
as described in this subsection shall fill the vacancy promptly.
(3) (a) Any person may file a written complaint with the independent ethics
commission asking whether a public officer, member of the general
assembly, local government official, or government employee has failed to
comply with this article or any other standards of conduct or reporting
requirements as provided by law within the preceding twelve months.
(b) The commission may dismiss frivolous complaints without conducting a
public hearing. Complaints dismissed as frivolous shall be maintained
confidential by the commission.
(c) The commission shall conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint pursuant to written rules
adopted by the commission.
(d) The commission may assess penalties for violations as prescribed by this
article and provided by law.
(e) There is hereby established a presumption that the findings shall be
based on a preponderance of evidence unless the commission determines
that the circumstances warrant a heightened standard.
(4) Members of the independent ethics commission shall have the power to
subpoena documents and to subpoena witnesses to make statements and
produce documents.
(5) Any public officer, member of the general assembly, local government
official, or government employee may submit a written request to the independent ethics commission for an advisory opinion on whether any
conduct by that person would constitute a violation of this article, or any
other standards of conduct or reporting requirements as provided by law.
The commission shall render an advisory opinion pursuant to written rules
adopted by the commission.
Section 6. Penalty
Any public officer, member of the general assembly, local government
official or government employee who breaches the public trust for private
gain and any person or entity inducing such breach shall be liable to the
state or local jurisdiction for double the amount of the financial equivalent of
any benefits obtained by such actions. The manner of recovery and additional penalties may be provided by law.
Section 7. Counties and municipalities.
Any county or municipality may adopt ordinances or charter provisions with
respect to ethics matters that are more stringent than any of the provisions
contained in this article. The requirements of this article shall not apply to
home rule counties or home rule municipalities that have adopted charters,
ordinances, or resolutions that address the matters covered by this article.
Section 8. Conflicting provisions declared inapplicable.
Any provisions in the statutes of this state in conflict or inconsistent with this
article are hereby declared to be preempted by this article and inapplicable
to the matters covered by and provided for in this article.
Section 9. Legislation to facilitate articles.
Legislation may be enacted to facilitate the operation of this article, but in no
way shall such legislation limit or restrict the provisions of this article or the
powers herein granted.
This is not an official copy of the Colorado Constitution. Please visit
LexisNexis Legal Resources for the most current version.
MEMORANDUM
To: Mayor and Council
From: Gerald Dahl, City Attorney
Date: June 25, 2019
Re: Rezoning protest procedures
______________________________________________________________________________
Council asked this matter be placed on a study session agenda for discussion. This memorandum
briefly describes the right of protest procedure for rezoning decisions, and available options for
Council in implementing that right.
Charter Section 5.10 authorizes the Council to “amend, supplement, change or repeal the
regulations, restrictions and boundaries of zoning districts within the City.” These actions are
“rezoning” actions and must be taken by ordinance after public hearing. The Charter goes on to
provide that a protest may be filed against the rezoning change by the owners of 20% or more of
the area:
•of the property owners included within the proposed change; or
•the owners immediately adjacent to the rear or any side of the property extending
100 feet; or
•of those directly opposite the street extending 100 feet from the opposite street
frontage.
In the event a protest is received, the rezoning ordinance must receive a ¾ vote of the entire
Council (6 votes) for passage. The Charter requires the written protest to be submitted to the city
Council “no later than the hearing on the proposed amendment.” While occasionally written
protests are received prior to the public hearing, I have consistently interpreted this Charter
provision to mean the protest can also be submitted during the hearing, so long as it is received
before the public hearing is closed.
This protest process is repeated in Code Section 26-113 (City initiated rezoning), however the
focus of this memo is on the Charter, which controls.
Item No. 2
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Understanding that receipt of a protest late in a public hearing may trigger additional discussion
by the Council, I have been asked whether the Council has any power to address protest
procedures.
First, it is important to emphasize the Council has no power to enact an ordinance which directly
or indirectly amends or undercuts the Charter. However, it is well recognized in Colorado that
councils in home rule municipalities do have the ability to implement the charter through code
provisions. The Council has done this in many ways in the Code, including elections (Chapter 7),
boards and commissions (Chapter 2 Article II), municipal court (Chapter 14), taxation (Chapter
22), and most significantly in zoning and development (Chapter 26).
Accordingly, while the Council may not change in any way the right to file a protest, the area
dimensions around a proposed rezoning property for which protests are eligible, or the fact that
the protests may be filed prior to the close of the relevant public hearing, Council does have some
options, including:
•After receiving the protest and closing the hearing, Council can proceed to vote on
the matter at that meeting (requiring 6 votes).
•After receiving the protest and having closed the public hearing, Council may act to
continue the matter for action at a later meeting. Importantly, this does not
continue the public hearing or extend the period for receipt of additional protests.
•Having received a protest, Council could choose to continue the hearing itself to a
later date. Importantly, however, because the hearing would have been continued
rather than closed, the protest right under Charter 5.10 continues: that is, it is
extended until the close of the hearing at the (continued) date.
Of course, Council is free to take any of the above actions without memorializing them in any
kind of formal procedure or code amendment. However, it is within the Council’s authority to
enact an ordinance amending the code, providing that in the case of receipt of a protest prior to
the close of the hearing, Council will automatically take one of the three options listed above.
Staff has no recommendation for the Council on this but is ready to answer questions at the study
session.
Attorneys at Law 710 Kipling Street, Suite 300 Lakewood, Colorado 80215 Main 303.493.6670 Fax 303.945.7960
MEMORANDUM
To: Mayor & City Council
From: Gerald Dahl, City Attorney
Jane Greenfield, Special Counsel
Date: June 25, 2019
Re: 2019 Liquor Code Amendments – Phase 2
______________________________________________________________________________
Background: In its last session, the Colorado legislature adopted a number of bills amending its
liquor and beer codes and other related statutes, including the creation of a new Title 44 – Revenue
–Regulation of Activities. This new Title contains the state’s revised liquor and beer codes,
formerly located in Title 12, and necessitates updating and making conforming changes to the
Wheat Ridge Code.
At its February 25th Study Session, Council reached consensus on the following points:
•Councilmember Hoppe asked and received consensus to separate Lodging uses from
Entertainment uses for the purpose of considering the 500 ft exemption.
•Councilmember Hoppe asked and received consensus to treat Lodging uses the same ashotel uses thereby exempting them from the 500 ft. separation requirement.
•Councilmember Hoppe asked and received consensus to consider Lodging uses as a ClassG operator.
•Councilmember Hoppe asked and received consensus to consider Entertainment types as aclass T operator.
•Councilmember Hoppe asked and received consensus to direct staff to bring forward anordinance making revisions to the city Liquor Code in conformance with recent state liquorlaw changes.
•Councilmembers Urban and Keiter asked and received consensus to direct city staff to
contact liquor licensees for their input concerning the 21 or older supervisor requirement,as well as alcohol manufacturers being subject to the Special Use review if locating within500 feet of a school, and to give those licensees notice that these items would be discussedat a future study session.
Item No. 3
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Consistent with the above consensus positions, staff brought forward Ordinance No. 1665, which
passed unanimously on second reading on April 22nd. Also, the City Clerk’s Office sent the
attached notice to all liquor licensees located in Wheat Ridge. Responses to this notice are attached.
With the passage of Ordinance No. 1665, only 3 issues remain for additional Council direction:
1. Should retail liquor store licensees hiring sales employees under 21-years of age be required to have an on-site supervisor that is at least 21-years old?
2. Lodging uses that also serve alcohol (for example, hotel and restaurant licenses) are exempt from the 500 foot rule. Should entertainment uses that serve alcohol also be exempt?
3. Should liquor manufacturers (including micro-distilleries and micro-breweries) who receive only a state license be classified as a Special Use under Code Chapter 26 if their
location falls within 500-feet of a school?
Whether to require on-site supervision by a person, 21 years of age or older, of employees aged 18 through 20 selling alcohol beverages?
Discussion: Prior to January 1, 2019, state law prohibited licensees holding a retail liquor license or liquor-licensed drugstore license required servers to be at least twenty-one years old. State law
did allow a fermented malt beverage (FMB) off-premises licensee to employ a person over
eighteen but under twenty-one to sell 3.2% beer. The 2019 legislation that did away with the distinction on the alcoholic content of beer also permitted then-current FMB license holders to sell full strength beer without changing their FMB license. At present, there are 16 retail liquor stores licensees and 16 grocery/convenience stores with FMB licenses in Wheat Ridge. Other types of
licensees are still required to either have employees who are at least twenty-one or older or to have
on-site supervision by a person twenty-one or older for employees between ages 18 – 21, if they are serving or dispensing alcohol. Thus, the impact of adopting the contemplated supervision requirement would appear to affect only (i) those 16 retail liquor stores that have chosen to hire younger sales employees since the first of the year and no longer have an employee at least twenty-
one years or older to supervise them, and (ii) those 16 grocery/convenience stores with FMB
licenses who previously had unsupervised sales clerks between the ages of 18 – 21.
Recommendation: Add language to Code Sec. 11-53 to require on-site supervision by a person twenty-one or older for employees between ages 18 – 21, if they are selling, serving or dispensing alcohol.
Should entertainment facilities, that serve alcohol pursuant to a Lodging and Entertainment
license, be permitted or prohibited within 500 feet of a school?
Discussion: State liquor rules define an entertainment facility as one whose primary business is providing sports or entertainment activities to the public, and incidentally serves alcohol for consumption on the premises. Sports activities include arcade games, billiards, bowling, golf or
laser tag. Entertainment activities include art galleries, theatres, arts & craft classes, cooking schools, amusement parks, and spas. Given the state’s lengthy list of what constitutes a “sports or entertainment facility,” the Community Development Department believes it would take a significant amount of staff time to compare these uses to the various permitted use classifications
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and definitions in the City’s Zoning Code, in order to determine what businesses already exist
within 500 feet of a school. And, some of the currently existing uses have the type of liquor license
permitting them to be so located. Several have hotel and restaurant liquor licenses and are exempt from the 500-foot rule. Finally, there is no evidence that these operations have caused any problems, and we do not recommend the City try to create a complex solution to a non-existent problem. For these reasons, maintain the status quo on how all these operations are treated for
Liquor Code purposes.
Recommendation: Consistent with the consensus positions reached at the 2/25 Study Session, add
lodging and entertainment facilities that hold Lodging and Entertainment licenses to the list of exceptions from the 500-ft separation from schools requirement in Sec. 11-53. Add definitions for Lodging Facility and Entertainment Facility to Sec. 11-51, for consistency with state definitions.
Whether the City should adopt a school separation requirement for businesses that
manufacture liquor, but only receive their licenses from the state liquor authority?
Discussion: These types of liquor manufacturers include breweries, distilleries, wineries and limited wineries, but do not include brew pubs, distillery pubs, or vintner’s restaurants, even though the latter three types also manufacture liquor. Micro-manufacturers, which have been
provided for in the City’s Zoning Code since 2017, may have only a state license in which case they also have no separation requirement from schools. Only licensees of the Wheat Ridge Liquor Licensing Authority are prohibited from locating within 500 feet of a school unless exempted by City ordinance. 1
Planning staff has determined that no state-only licensed liquor manufacturers/wholesalers
currently exist within 500 ft of any school. Large-scale manufacturers and micros without tap rooms (“sales rooms”)2 are only allowed in Industrial zoning districts, so adding this requirement to the land use code is not necessary, as industrial zones are generally not adjacent to residential zones where schools tend to locate. State law requires a liquor manufacturer making application for a sales room (think Wheat Ridge “taproom”) to send a referral to the local liquor licensing
authority and allow 45 days for its comments, including whether granting a sales room permit violates local zoning or causes undo traffic, noise, etc. The state can then refuse the sales room application if the LLA objects and must refuse the license if the zoning doesn’t allow the use. Micro-producers with taprooms (“sales rooms”) are uses that Council has previously determined are a desirable type of business driving economic development in certain areas of the city, and
some of these uses are already licensed as brew pubs and thus exempt from the separation requirement.
Recommendation: Add a provision in Sec. 11-53 for the Liquor Authority to refer any state applications for liquor sales rooms to the Director of Community Development for comment, so that zoning/planning issues can be reviewed and commented on to the state licensing authority in
a timely manner. Do not require special use permits for these operations, other than as already the case in Chapter 26.
1 The state’s reasoning for having no separation requirement for manufacturer/producers appears to be that manufacturing of liquor (without associated sales rooms), like manufacturing of any product, will be controlled by a
communities’ zoning regulations and a school’s students will not be exposed to the nearby consumption of alcohol.
2 The State defines Sales Room similarly to Wheat Ridge’s definition of a “tap room”.
-4-
The City Attorney has provided, as an attachment, suggested Code language for those items that
already received consensus at the 2/25 Study Session as well as proposed language for the
recommendations provided above.
Attachments:
1. March 26, 2019 Notice Letter
2. Summary of Licensee Responses
3. Ordinance No. 1665
4. Draft Code language reflecting prior consensus items and proposed recommendations
March 26, 2019
RE: Wheat Ridge Liquor Code changes
To all liquor licensees:
The Wheat Ridge City Council is currently considering revisions to its liquor regulations. Most of the pending changes are the result of state legislative enactments that have amended
Colorado’s alcoholic beverage and beer codes. You may already be aware of many of these housekeeping changes as they have resulted in revised Rules issued by the Department of Revenue.
In addition, the City Council is considering additional changes to the City's liquor code and has directed staff to provide notice to all liquor licensees, whether licensed by the state or by our
local liquor licensing authority, of possible changes that may affect you or your business
operations. At its February 25, 2019 study session, the City Council reached consensus on the following positions:
• Under the new Lodging and Entertainment license category, separate purely lodging uses
from entertainment uses or venues. Include lodgings as a Class G operator and include
entertainment as a Class T operator for tax purposes. At present, no city Lodging and Entertainment licenses have been issued, but current licensees seeking to switch to this category should be aware of this.
• When Lodging and Entertainment licenses are issued, those uses constituting purely
lodging will be added to the exemption from the 500-foot separation requirement from public and private schools.
Two issues remain, upon which the Council is seeking your input.
1. The first question being discussed by Council is whether to require on-site supervision by a person, 21 years of age or older, of employees aged 18 through 20 selling alcohol beverages. Consideration of this issue is the result of the states’ exemption from this requirement for retail liquor stores and liquor licensed drugstores and the removal of the
3.2% distinction for fermented malt beverages. Such a change could affect licensees
holding retail liquor store, liquor license drugstore, and fermented malt beverage licenses.
2. The second question under consideration is whether (i) state only licensees and (ii) entertainment premises receiving a Lodging and Entertainment license should be exempt from the 500 foot separation requirement from schools. Each license type will be
considered separately. Currently, the determination of this issue does not affect any existing licensees as all businesses holding only state licenses are already located more than 500 feet from any school and, as stated before, the city has not issued any Lodging
ATTACHMENT 1
and Entertainment licenses yet. Existing entertainment-type uses that serve alcohol have
the type of license already exempt under the city’s code from the 500 foot requirement.
If you would like to provide your written comments on either of these issues, please submit them
by May 17, 2019 and address them to:
Robin Eaton
Deputy City Clerk
reaton@ci.wheatridge.co.us
Thank you for your attention and assistance.
Sincerely,
Janelle Shaver
City Clerk
ATTACHMENT 2
1
From:Justin Justin <rightcoastpizza@gmail.com>
Sent:Friday, April 5, 2019 7:42 AM
To:Robin Eaton
Subject:Liquor Code Changes
Robin,
I received the recent letter regarding changes to the liquor code.
I would like to provide some input to council about the issues that remain.
First issue to address is the consideration regarding 18-20 year old employees being supervised. Currently, we
always have someone on the premises that is at least 21 years of age. However, it is getting increasingly
difficult in the work force to maintain an age group over 21. Scheduling conflicts often make it difficult to
continue this potential requirement. I have several employees that have started working for us at the age of 16
and are still here and look forward to becoming servers when they turn 18. Honestly, in my opinion these
employees are very responsible. I currently have 2 front of house employees under the age of 21 who I trust and
they deserve to be leads in there position. At the age of 18, many of my employees are moving on to college and
have schedules that can be hard to accommodate. There education is important to them as well as earning an
income. I enjoy being a part of this community and giving job opportunities, responsibilities and most of all
trusting my employees. Responsibility and trust should not be limited to age. I hope the council will find this
helpful when addressing this issue.
The next issue is regarding the 500 foot exemption. I'm starting to see many exciting developments being built.
As Wheat Ridge moves forward and accommodates much needed new growth, this issue should be considered
with each individual application. There is always going to be new and exciting businesses on the rise and they
should not be limited by a code without community consideration.
Thank you for your time,
Mark Eskow owner of Right Coast Pizza
Thanks and have a great day!
Right Coast Pizza
Mark Eskow, ph 720.785.4170
Justin Vogel, ph 303.947.5665
1
From:Joseph DeMott <jdemott4@gmail.com>
Sent:Monday, April 1, 2019 4:53 PM
To:Janelle Shaver; Robin Eaton
Subject:Liquor license changes
Will the proposed changes hinder a tenant in the buildings by Stevens elementary ( by posie girl ) from getting a
liquor license? If so I’m ready raise hell! You know me.
--
Joseph DeMott
303-929-4608
ATTACHMENT 3
Proposed revised Code sections
The changes described in the Study Session memo would appear as the follow revised Code
sections:
Sec. 11-51. – Definitions. [ Add the following definitions:]
Entertainment Facility means an establishment the primary business of which is to provide
the public with sports or entertainment activities within its licensed premises and incidentally
may sell and serve alcohol beverages at retail for on-premises consumption and has
sandwiches and light snacks available.
Lodging Facility means an establishment the primary business of which is to provide the
public with sleeping rooms and meeting facilities and incidentally may sell and serve alcohol
beverages at retail for on-premises consumption and has sandwiches and light snacks
available, but does not include a restaurant as defined in §44-3-103, C.R.S. or an eating
establishment as defined in the Wheat Ridge City Code.
Sec. 11-53. – Application of Governance by state laws, rules and regulations.
(a) The licensing authority shall be governed by state law now in effect or subsequently
amended and the rules and regulations of the Executive Director of the Department of
Revenue of the State of Colorado, as the state licensing authority, which shall apply to the
licensing of fermented malt beverages and malt, vinous and spirituous liquors within the city,
where applicable. In the event of a conflict between such and any provisions set forth in this
chapter, the more restrictive requirement shall prevail.
(b) Notwithstanding the provisions in subsection (a) to the contrary, the distance restriction
imposed by C.R.S. § 44-3-313(1)(d) prohibiting the sale of alcohol beverages within five
hundred (500) feet of any public or parochial school or the principal campus of any college,
university or seminary, are eliminated for all hotel and restaurant licenses, beer and wine
licenses, brew pub licenses, arts licenses, LODGING FACILITIES HOLDING A LODGING
AND ENTERTAINMENT LICENSE, and vintner's restaurant licenses issued pursuant to
this article.
(C) ANY PERSON HOLDING A STATE AND/OR A LOCAL LICENSE OR PERMIT
FOR THE SALE OR DISPENSING OF ALCOHOL BEVERAGES SHALL PROVIDE
DIRECT SUPERVISION ON THEIR PREMISES, BY A PERSON AT LEAST TWENTY-
ONE YEARS OF AGE, FOR EMPLOYEES UNDER AGE TWENTY-ONE WHO SELL,
SERVE OR DISPENSE ALCOHOL BEVERAGES.
ATTACHMENT 4
(D) WITHIN FIVE (5) DAYS OF RECEIPT OF A NOTICE OF APPLICATION FOR A
LIQUOR SALES ROOM, PURSUANT TO DEPARTMENT OF REVENUE
REGULATION 47-428, THE LOCAL LICENSING AUTHORITY SHALL REFER THE
NOTICE TO THE DIRECTOR OF COMMUNITY DEVELOPMENT FOR COMMENT.
Sec. 11-63. - Classification of operators.
The business of selling at retail any fermented malt beverage or malt, vinous or spirituous
liquor other than medicinal liquors for beverage purposes is hereby defined and separately
classified as such occupation for the purpose of this chapter as follows:
. . .
(5) Class "G" operators. All operators who are licensed to sell alcohol beverages for
consumption on the premises either as brew pubs, distillery pubs, LODGING FACILITIES,
vintner’s restaurants, hotels and/or restaurants shall be Class "G" operators.
. . .
(7) Class "T" operators. All operators selling alcohol beverages, by the drink, only for
consumption on the premises EITHER AS TAVERNS OR ENTERTAINMENT
FACILITIES; and such operators shall have available for consumption on the premises
during business hours, sandwiches and light snacks; but they need not have meals available
for consumption.