In his successful defense of Moose McGillycuddy’s against three over-service charges at the Dec. 1, 2005 Liquor Control Board of Adjudication hearing, attorney Dave Jorgensen tried a number of novel approaches. One of the more interesting was to shove a court ruling against the LC right back in the board’s faces.
Way back in the spring of 2003, the board found the Kahului Ale House guilty on three counts of over-serving customer Gary Aplanalp. Rather than accept the guilty findings, Ale House sued the LC in Hawai’i’s 2nd Judicial Circuit Court.
On May 5, 2004, Judge Joel August ruled that the LC had been a little too quick with the guilty verdicts. His ruling listed six new findings the board was “required” to make. They included establishing the actual time the Ale House last served Aplanalp, specifying “the indicia of intoxication that licensees are expected to look for with respect to customers” and determining whether Aplanalp was already drunk when he last got a drink at the Ale House. Rather than do all that, the board simply dismissed the case.
Jorgensen wanted to admit the ruling as evidence in his defense of Moose’s, which was up on identical charges. Jorgensen insisted that Judge August’s ruling applies to all over-service cases brought before the board of adjudication—that the LC must not bring charges against a licensee unless it can prove beyond a reasonable doubt that a customer actually got intoxicated at that establishment. Prosecutor Andrew Martin and Corporation Counsel Tracy Fujita-Villarosa disagreed, saying the ruling was irrelevant because it applied only to the Ale House matter.
The board hesitated on admitting the ruling. Board member Lance Collins then suggested that the board go into closed session to discuss its powers regarding the ruling—five of the eight members agreed with him, helped no doubt by his threat to simply air all his concerns in public if they refused.
The executive session was closed so we don’t know what they said, but when they reopened the hearing 15 minutes later the entire board voted unanimously to accept the ruling into evidence.