BR F.txt (1) ARTICLE F. OFFENSES RELATING TO ALCOHOL, CIGARETTES AND AMUSEMENT ESTABLISHMENTS

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1 BR F.txt (1) CHAPTER 3 GENERAL OFFENSES ARTICLE F. OFFENSES RELATING TO ALCOHOL, CIGARETTES AND AMUSEMENT ESTABLISHMENTS SECTION: 6-3F--1: Definitions 6-3F--2: Illegal Possession Or Consumption Of Alcohol By Underage Person 6-3F--3: Unlawful Purchasing Of Alcoholic Beverage By Underage Person 6-3F--4: Unlawful Solicitation Of Alcoholic Beverage By Underage Person 6-3F--5: Permitting Use Of False Identification By Underage Person 6-3F--6: Unlawful Purchasing Of Alcoholic Beverage For Underage Person 6-3F--7: Unlawful Sale Of Alcoholic Beverage To Underage Person 6-3F--8: Unlawful Sale Of Alcoholic Beverage By Unlicensed Person 6-3F--9: Illegal Removal Of Alcoholic Beverage From Licensed Premises 6-3F-10: Duty To Report 6-3F-11: Parental Liability 6-3F-12: Unlawful Purchasing Of Cigarettes By Underage Person 6-3F-13: Unlawful Sale Of Cigarettes To Underage Person 6-3F-14: Unlawful Use Of False Identification To Gain Admission 6-3F-15: Unlawful Consumption Of Alcoholic Beverages 6-3F-16: Open Containers Prohibited 6-3F-17: Illegal Sale To Visibly Intoxicated Person 6-3F-18: Licensee's Employees Not To Be Visibly Intoxicated While Working 6-3F-19: Conduct Of Establishment 6-3F-20: Time Restriction; Licensee 6-3F-1: DEFINITIONS: As used in this chapter, unless the context otherwise requires:!def! ALCOHOLIC BEVERAGES: A "fermented malt beverage" as defined by the Colorado beer code 1 and "malt, vinous or spirituous liquor" as defined by the Colorado liquor code 2. COLORADO BEER CODE: The provisions of article 46 of title 12, CRS, and the rules and regulations of the Colorado department of revenue 1. CRS title 12, art CRS title 12, art. 47.

2 BR F.txt (2) promulgated thereunder. COLORADO LIQUOR CODE: The provisions of article 47 of title 12, CRS, and the rules and regulations of the Colorado department of revenue promulgated thereunder. EMPLOYEE: An employee of a licensee. ESTABLISHMENT: A business, firm, enterprise, service or fraternal organization, club, institution, entity, group or residence, and any real property, including buildings and improvements, connected therewith, and shall also include any members, employees and occupants associated therewith. ETHYL ALCOHOL: Any substance which is or contains ethyl alcohol. LICENSE: A grant to a licensee to sell fermented malt beverages as provided by the Colorado beer code; a grant to a licensee to sell malt, vinous or spirituous liquors as provided by the Colorado liquor code; or a special events permit. LICENSED PREMISES: The premises specified in an application for a license under the "Colorado beer code"; the "Colorado liquor code"; or for a special events permit, which are owned or in possession of the licensee and within which such licensee is authorized to sell, dispense or serve alcoholic beverages. LICENSEE: The holder of a license under the Colorado beer code; the Colorado liquor code; or the holder of a special events permit. MANAGER: The registered manager of a licensee. MOTOR VEHICLE: A vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated exclusively on a rail or rails. OPEN CONTAINER: A bottle, can, or other receptacle that contains any amount of alcoholic beverage and: a) that is open or has a broken seal; or b) the contents of which are partially removed. PERSON: A natural person, partnership, association, company, corporation, or organization or a manager, agent, servant, officer or employee of any of them. POSSESSION OF ETHYL ALCOHOL: That a person has or holds any amount of ethyl alcohol anywhere on his person, or that a person owns or has custody of ethyl alcohol, or has ethyl alcohol within his immediate presence and control. PRIVATE PROPERTY: Any dwelling and its curtilage which is being used

3 BR F.txt (3) by a natural person or natural persons for habitation and which is not open to the public and privately owned real property which is not open to the public. "Private property" shall not include: A. Any establishment which has or is required to have a license pursuant to the Colorado beer code, Colorado liquor code, or the provisions of article 48 of title 12, CRS, pertaining to special events licenses; or B. Any establishment which sells ethyl alcohol or upon which ethyl alcohol is sold; or C. Any establishment which leases, rents, or provides accommodations to members of the public generally. PUBLIC ROOM: A portion of the licensed premises which is open to the public during normal business hours. SELL OR SALE: Any of the following: to exchange, barter, or traffic in; to solicit or receive an order for except through a licensee; to keep or expose for sale; to serve with meals; to deliver for value or in any way other than gratuitously; to peddle or to possess with intent to sell; to possess in contravention of this chapter; and to traffic in for any consideration promised or obtained, directly or indirectly. SPECIAL EVENTS PERMIT: A special permit to sell fermented malt beverages or malt, vinous or spirituous liquors issued pursuant to the provisions of article 48 of title 12, CRS, and the rules and regulations of the Colorado department of revenue promulgated thereunder. UNDERAGE PERSON: A person under the age of twenty one (21) years. (Ord. 10, Series 1991; amd. Ord. 22, Series 2005; Ord. 31, Series 2006; Ord. 11, Series 2009) 6-3F-2: ILLEGAL POSSESSION OR CONSUMPTION OF ALCOHOL BY UNDERAGE PERSON: A. It shall be unlawful for any person under the age of twenty one (21) years to possess or consume ethyl alcohol anywhere within the town. Illegal possession or consumption of ethyl alcohol by an underage person is a strict liability offense. B. It shall be an affirmative defense to the offense described in subsection A of this section that the ethyl alcohol was possessed or consumed by a person under twenty one (21) years of age under the following circumstances:

4 BR F.txt (4) 1. While such person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of such person's parent or legal guardian who was present during such possession or consumption; or 2. When the existence of ethyl alcohol in a person's body was due solely to the ingestion of a confectionery which contained ethyl alcohol within the limits prescribed by section (1)(i)(II), CRS, or the ingestion of any substance which was manufactured, designed, or intended primarily for a purpose other than oral human ingestion, or the ingestion of any substance which was manufactured, designed, or intended solely for medicinal or hygienic purposes, or solely from the ingestion of a beverage which contained less than one-half ( 1 / 2 ) of one percent (1%) of ethyl alcohol by weight. 3. The person is a student who: a. Tastes but does not imbibe an alcohol beverage only while under the direct supervision of an instructor who is at least twenty one (21) years of age and employed by a postsecondary school; b. Is enrolled in a university or a postsecondary school accredited or certified by an agency recognized by the United States department of education, a nationally recognized accrediting agency or association, or the "private occupational education act of 1981", article 59 of title 12, CRS; c. Is participating in a culinary arts, food service, or restaurant management degree program; and d. Tastes but does not imbibe the alcohol beverage for instructional purposes as a part of a required course in which the alcohol beverage, except the portion the student tastes, remains under the control of the instructor. C. The possession or consumption of ethyl alcohol shall not constitute a violation of subsection A of this section if such possession or consumption takes place for religious purposes protected by the first amendment to the United States constitution. D. An underage person and one or two (2) other persons shall be immune from criminal prosecution under this section if they establish the following: 1. One of the underage persons called 911 and reported that another underage person was in need of medical assistance due to alcohol consumption; 2. The underage person who called 911 and, if applicable, one or two

5 BR F.txt (5) (2) other persons acting in concert with the underage person who called 911, provided each of their names to the 911 operator; 3. The underage person was the first person to make the 911 report; and 4. The underage person and, if applicable, one or two (2) other persons acting in concert with the underage person who made the 911 call, remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. E. Prima facie evidence of a violation of subsection A of this section shall consist of: 1. Evidence that the defendant was under the age of twenty one (21) years and possessed or consumed ethyl alcohol anywhere in this town; or 2. Evidence that the defendant was under the age of twenty one (21) years and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment while present anywhere in this town. F. During any trial for a violation of subsection A of this section, any bottle, can, or any other container with labeling indicating the contents of such bottle, can, or container shall be admissible into evidence, and the information contained on any label on such bottle, can, or other container shall be admissible into evidence and shall not constitute hearsay. A jury or a judge, whichever is appropriate, may consider the information upon such label in determining whether the contents of the bottle, can, or other container were composed in whole or in part of ethyl alcohol. A label which identifies the contents of any bottle, can, or other container as "beer", "ale", "malt beverage", "fermented malt beverage", "malt liquor", "wine", "wine cooler", "champagne", "whiskey" or "whisky", "gin", "vodka", "tequila", "schnapps", "brandy", "cognac", "liqueur", "cordial", "alcohol", or "liquor" shall constitute prima facie evidence that the contents of the bottle, can, or other container were composed in whole or in part of ethyl alcohol. G. A parent or legal guardian of a person under twenty one (21) years of age, or any natural person who has the permission of such parent or legal guardian, may give, or permit the possession and consumption of, ethyl alcohol to or by a person under the age of twenty one (21) years under the conditions described in subsection B1 of this section. This subsection shall not be construed to permit any establishment which is or is required to be licensed pursuant to the Colorado beer code, Colorado liquor code or the provisions of article 48 of title 12, CRS, or any members, employees, or occupants of any

6 BR F.txt (6) such establishment, to give, provide, make available, or sell ethyl alcohol to a person under twenty one (21) years of age. H. Any underage person shall be required to take and complete, and to cooperate in the taking and completion of, any test or tests of such person's breath for the purpose of determining the presence of ethyl alcohol in such person's breath when so requested and directed by a law enforcement officer having probable cause to believe that such person has violated subsection A of this section. The breath test shall be administered in accordance with the rules and regulations prescribed by the Colorado department of public health and environment; provided however, strict compliance with such rules and regulations shall not be a prerequisite to the admissibility of a test result at trial unless the court finds that the extent of noncompliance with a department of public health and environment rule has so impaired the validity and reliability of the testing method and the test results so as to render the evidence unreliable. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test result. If an underage person refuses to take or to complete, or to cooperate with the completion of, a breath test as described above, such refusal shall be admissible into evidence at any trial for an alleged violation of subsection A of this section. I. The qualitative result of an alcohol test or tests shall be admissible at the trial of any person charged with a violation of subsection A of this section upon a showing that the device or devices used to conduct such test or tests have been approved as accurate in detecting alcohol by the executive director of the Colorado department of public health and environment. J. Official records of the Colorado department of public health and environment relating to the certification of breath test instruments, certification of operators and operator instructors of breath test instruments, certification of standard solutions, and certification of laboratories shall be official records. Copies of such records, attested by the executive director of the department of public health and environment or his or her deputy and accompanied by a certificate bearing the official seal for said department, which state that the executive director of the department has custody of such records, shall be admissible in the municipal court and shall constitute prima facie evidence of the information contained in such records. The official seal of the department described in this subsection J may consist of a rubber stamp producing a facsimile of the seal stamped upon the document. K. In any judicial proceeding in the municipal court concerning a charge under subsection A of this section, the court shall take judicial notice of methods of testing a person's blood, breath,

7 BR F.txt (7) saliva, or urine for the presence of ethyl alcohol and of the design and operation of devices certified by the Colorado department of public health and environment for testing a person's blood, breath, saliva, or urine for the presence of ethyl alcohol. This subsection K shall not prevent the necessity of establishing during a trial that the testing devices were working properly and that such testing devices were properly operated. Nothing in this subsection K shall preclude a defendant from offering evidence concerning the accuracy of such testing devices. L. No law enforcement officer shall enter upon any private property within the town to investigate any violation of this section without probable cause. M. Any person convicted of violating the provisions of subsection A of this section shall be punished as provided in title 1, chapter 4 of this code. The court, upon sentencing a defendant for a violation of subsection A of this section, may, in addition to any fine, order that the defendant perform up to twenty four (24) hours of useful public service and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program, at such defendant's own expense. (Ord. 31, Series 2006) 6-3F-3: UNLAWFUL PURCHASING OF ALCOHOLIC BEVERAGE BY UNDERAGE PERSON: A. It shall be unlawful for any person under the age of twenty one (21) years to purchase, procure or obtain any alcoholic beverage from any place where alcoholic beverages are sold. This offense is a strict liability offense. B. An underage person and one or two (2) other persons shall be immune from criminal prosecution under this section if they establish the following: 1. One of the underage persons called 911 and reported that another underage person was in need of medical assistance due to alcohol consumption; 2. The underage person who called 911 and, if applicable, one or two (2) other persons acting in concert with the underage person who called 911, provided each of their names to the 911 operator; 3. The underage person was the first person to make the 911 report; and 4. The underage person and, if applicable, one or two (2) other persons acting in concert with the underage person who made the 911

8 BR F.txt (8) call, remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. (Ord. 31, Series 2006) 6-3F-4: UNLAWFUL SOLICITATION OF ALCOHOLIC BEVERAGE BY UNDERAGE PERSON: It shall be unlawful for any person under the age of twenty one (21) years to engage or utilize the service of any other person, whether for remuneration or not, to purchase, procure or obtain for such underage person an alcoholic beverage from any place where alcoholic beverages are sold. This offense is a strict liability offense. (Ord. 10, Series 1991) 6-3F-5: PERMITTING USE OF FALSE IDENTIFICATION BY UNDERAGE PERSON: It shall be unlawful for any person to intentionally or knowingly permit, or to fail to prevent, the use of such person's identification in connection with the purchase, or attempted purchase, of an alcoholic beverage by a person under the age of twenty one (21) years. (Ord. 10, Series 1991) 6-3F-6: UNLAWFUL PURCHASING OF ALCOHOLIC BEVERAGE FOR UNDERAGE PERSON: It shall be unlawful for any person to intentionally or knowingly purchase, procure or obtain an alcoholic beverage for any person who is under the age of twenty one (21) years. (Ord. 10, Series 1991) 6-3F-7: UNLAWFUL SALE OF ALCOHOLIC BEVERAGE TO UNDERAGE PERSON: A. It shall be unlawful for any person to sell, serve, give away, dispose of, exchange, or deliver, or permit the sale, service, giving away, delivery or procuring of any alcoholic beverage to or for any person under the age of twenty one (21) years. This offense is a strict liability offense. B. If a person is convicted of an offense pursuant to subsection A of this section for serving, giving away, disposing of, exchanging, or delivering or permitting the serving, giving, or procuring of any alcoholic beverage to a person under the age of twenty one (21) years, the court shall consider the following in mitigation: 1. After consuming the alcohol, the underage person was in need of medical assistance as a result of consuming alcohol; and

9 BR F.txt (9) 2. Within six (6) hours after the underage person consumed the alcohol, the defendant contacted the police or emergency medical personnel to report that the underage person was in need of medical assistance as a result of consuming alcohol. (Ord. 31, Series 2006) 6-3F-8: UNLAWFUL SALE OF ALCOHOLIC BEVERAGE BY UNLICENSED PERSON: It shall be unlawful for any person to sell or possess for sale any malt, vinous, or spirituous liquor or fermented malt beverage, unless licensed to do so pursuant to the Colorado beer code, Colorado liquor code, or the provisions of article 48 of title 12, CRS, unless all required licenses are in full force and effect. (Ord. 10, Series 1991) 6-3F-9: ILLEGAL REMOVAL OF ALCOHOLIC BEVERAGE FROM LICENSED PREMISES: A. It shall be unlawful for any licensee, manager or employee to intentionally, knowingly or recklessly permit the removal of any alcoholic beverage from the licensed premises. B. It shall be unlawful for any person to remove any alcoholic beverage from a licensed premises. This offense is a strict liability offense. C. This section shall not apply to a duly licensed package liquor store or vendor. (Ord. 10, Series 1991) 6-3F-10: DUTY TO REPORT: A. If a licensee, any owner of a licensee, or any of the licensee's managers, servants, agents, or employees knows or should have known that an illegal or violent act has been committed or is about to be committed on, about, or outside of the licensed premises, it shall be unlawful and a misdemeanor offense for such person to fail to immediately report the same to the police department of the town. B. As used in this section:!def! KNOWS OR SHOULD HAVE KNOWN: Actual knowledge, or knowledge that a person exercising reasonable diligence should have. In determining whether a person "should have known" certain information, the court shall apply an objectively reasonable person standard. OWNER OF A LICENSEE: The sole proprietor of any licensee that is a sole proprietorship; any partner of a licensee that is a general

10 BR F.txt (10) partnership; any general partners of a licensee that is a limited partnership; any member or manager of a licensee that is a limited liability company; any person owning ten percent (10%) or more of the issued and outstanding stock of a licensee that is a corporation; and any person having a ten percent (10%) or more ownership interest in a licensee that is any other form of business entity.!defend! C. The failure of a licensee to comply with the penal requirements of this section may be considered by the licensing authority in any action relating to revocation, suspension or renewal of a license. Proof of the licensee's failure to comply with the requirements of this section on three (3) or more occasions within the licensing period shall constitute prima facie grounds for the suspension, revocation or denial of renewal of a license. (Ord. 4, Series 2009) 6-3F-11: PARENTAL LIABILITY: It shall be unlawful for the parent or legal guardian of any person under the age of twenty one (21) years to intentionally, knowingly, or under conditions which an average parent or guardian should have knowledge of, permit or allow such underage person to violate any of the provisions of this chapter. (Ord. 10, Series 1991) 6-3F-12: UNLAWFUL PURCHASING OF CIGARETTES BY UNDERAGE PERSON: It shall be unlawful for any person who is under the age of eighteen (18) years to purchase any cigarettes or tobacco products. (Ord. 10, Series 1991) 6-3F-13: UNLAWFUL SALE OF CIGARETTES TO UNDERAGE PERSON: It shall be unlawful for any person to sell, give away, dispose of, exchange, or deliver, or to permit the sale, giving away, disposal, exchange, or delivery of cigarettes or tobacco products to or for any person under the age of eighteen (18) years. This offense is a strict liability offense. (Ord. 10, Series 1991) 6-3F-14: UNLAWFUL USE OF FALSE IDENTIFICATION TO GAIN ADMISSION: It shall be unlawful for any underage person to make false statements or to furnish, present or exhibit any fictitious or false registration card, identification card, or note or other document issued to a person other than the one presenting the same, for the purpose of gaining admission to any place which has established a minimum age for entrance. (Ord. 33, Series 1995)

11 BR F.txt (11) 6-3F-15: UNLAWFUL CONSUMPTION OF ALCOHOLIC BEVERAGES: A. It is unlawful for any person to consume any alcoholic beverage in or upon any public place within the town, except within an establishment licensed by the town to sell such beverages for consumption on the premises; provided, however, that, subject to the provisions of subsection B of this section, it shall not be unlawful for a person to consume any fermented malt beverage, malt liquor or vinous liquor as defined in the Colorado liquor code in those public parks known as "Kingdom park" and "Carter park". (Ord. 11, Series 2009) B. 1. It is unlawful for any person to consume any alcoholic beverage upon a licensed premises other than an alcoholic beverage purchased from such establishment. The premises upon which an outdoor special event is held shall be conspicuously posted to provide notice of the boundaries of the licensed premises upon which such special event is being held. (Ord. 26, Series 1995; amd. Ord. 11, Series 2009) 2. It shall be unlawful for any person to consume an alcoholic beverage in a public room of a licensed premises between the hours of two o'clock (2:00) A.M. and seven o'clock (7:00) A.M. C. The provisions of subsection 6-3F-2F of this article shall be applicable to any trial for a violation of subsection A, B1 or B2 of this section. (Ord. 11, Series 2009) D. Any peace officer is authorized to seize any alcoholic beverage which is used in the commission of a violation of either subsection A, B1 or B2 of this section. If no summons or complaint is issued for a violation of this section, and if the circumstances reasonably permit, the peace officer may require the person who has committed a violation of this section to abandon the alcoholic beverage to the officer for destruction. (Ord. 26, Series 1995) 6-3F-16: OPEN CONTAINERS PROHIBITED: A. 1. It is unlawful for any person to possess any alcoholic beverage in any open container or to consume any alcoholic beverage in any public place within the town, or in the interior of any motor vehicle while the motor vehicle is either parked on a public street, right of way or alley within the town or is being operated on a public street, right of way or alley within the town. (Ord. 22, Series 2005) 2. The provisions of subsection A1 of this section shall not apply to the possession of an open container or the consumption of an alcoholic beverage within the licensed premises of an establishment licensed by the town to sell such beverage for consumption upon the

12 BR F.txt (12) premises, or to the possession of an open container or the consumption of any fermented malt beverage, malt liquor or vinous liquor as defined in the Colorado liquor code in those public parks known as "Kingdom park" and "Carter park". (Ord. 11, Series 2009) B. The provisions of subsection 6-3F-2F of this article shall be applicable to any trial for a violation of subsection A1 of this section. C. Any peace officer is authorized to seize any alcoholic beverage which is used in the commission of a violation of subsection A1 of this section. If no summons or complaint is issued for a violation of this section, and if the circumstances reasonably permit, the peace officer may require the person who has committed a violation of this section to abandon the alcoholic beverage to the officer for destruction. (Ord. 17, Series 1994) D. The provisions of this section shall not apply to a person in possession of one opened but resealed container of partially consumed vinous liquor which was lawfully removed from the licensed premises of an establishment holding a liquor license pursuant to section (3.5), CRS. E. The town council hereby finds, determines and declares that the provisions of this section are no less restrictive than the provisions of section , CRS. (Ord. 22, Series 2005) F. An underage person and one or two (2) other persons shall be immune from criminal prosecution under this section if they establish the following: 1. One of the underage persons called 911 and reported that another underage person was in need of medical assistance due to alcohol consumption; 2. The underage person who called 911 and, if applicable, one or two (2) other persons acting in concert with the underage person who called 911 provided each of their names to the 911 operator; 3. The underage person was the first person to make the 911 report; and 4. The underage person and, if applicable, one or two (2) other persons acting in concert with the underage person who made the 911 call remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. (Ord. 31, Series 2006)

13 BR F.txt (13) 6-3F-17: ILLEGAL SALE TO VISIBLY INTOXICATED PERSON: It shall be unlawful for a licensee or an employee of a licensee to sell or serve an alcoholic beverage to a visibly intoxicated person. (Ord. 23, Series 2008) 6-3F-18: LICENSEE'S EMPLOYEES NOT TO BE VISIBLY INTOXICATED WHILE WORKING: It shall be unlawful for any employee, including, but not limited to, a waiter, waitress, drink server, host, hostess, bartender, or manager of a licensee to be visibly intoxicated while engaged in the performance of his or her employment duties at a licensed premises. (Ord. 23, Series 2008) 6-3F-19: CONDUCT OF ESTABLISHMENT: Each licensee and each employee shall conduct the licensed premises in a decent, orderly, and respectable manner, and shall not permit on the licensed premises the serving or loitering of a visibly intoxicated person or habitual drunkard, nor shall the licensee or the employee or agent permit rowdiness, undue noise, or other disturbances or activity offensive to the senses of the average citizen, or to the residents of the neighborhood in which the licensed establishment is located. (Ord. 23, Series 2008) 6-3F-20: TIME RESTRICTION; LICENSEE: It shall be unlawful for a licensee or an employee of a licensee to sell, serve, or distribute an alcoholic beverage at the licensed premises between the hours of two o'clock (2:00) A.M. and seven o'clock (7:00) A.M. (Ord. 11, Series 2009)