When management and lawyers for The Hawk, 1340 Ohio, received notice that the state's Alcoholic Beverage Control division was investigating several liquor violation allegations, they thought a state agreement would somewhat shield them.
After all, the bar contends, the state said it wouldn't consider violations more than four years old when investigating new cases of minors possessing alcohol in bars.
Now, according to The Hawk's attorneys and others involved in the Kansas alcohol industry, the state violated its own agreement when investigating The Hawk, using old violations in its quest to revoke the liquor license of the popular bar near Kansas University.
The agreement, a penalty schedule the ABC created, stated liquor violations would be graded on a scale and any violations previous to the grid's existence wouldn't be used when considering new cases.
The grid was established in 2000.
"We applied the grid moving forward," former ABC enforcement director Dean Reynoldson said.
But in the state's brief recommending the bar lose its license, submitted by the Alcoholic Beverage Control Division in mid-December, Assistant Atty. Gen. Bradley Burke cited cases dating from 1999 and 2000 that according to the agreement shouldn't have applied to the case.
"In light of the history of repeated violations ... it is easy to conclude that this licensee views ABC fines as merely the cost of doing business," Burke wrote.
Since 1999, The Hawk has been fined more than $13,000, according to the brief.
Dan Owen, attorney for The Hawk, said the state's case shouldn't hold up, considering the agreement and the "extraordinary effort" the bar makes to deter minors from drinking there.
"The state had an explicit agreement with The Hawk and other bar owners across the state," Owen said. "Unfortunately, the current enforcement division discarded those promises."
But Reynoldson and current ABC Director Thomas Groneman said the grid was simply a guideline for enforcement and that attorneys were not required to follow it.
Burke, who has led the state's case against the bar, said he thought the four-year limit would be an issue during litigation. But he would not comment further on the case.
According to a copy of the state's penalty schedule for underage drinking violations, after nine violations it can fine owners $1,000 and revoke their liquor license for each new violation.
But according to a letter the state sent Owen last October, the state no longer uses the penalty schedule, calling the document "inactive."
No deal for use
Reynoldson said although the ABC promoted the schedule when it was initiated, there was never a deal with liquor retailers outlining its use.
"The grid was an internal policy. It was set up like a guideline," Reynoldson said.
After a change in enforcement personnel at the ABC, the schedule was taken out of service, Groneman said.
"That penalty grid is no longer used," he said.
Groneman said he wasn't sure what system the attorney general would use when asking for penalties for alleged violations. As the ABC's hearing officer, Groneman said his duties are restricted to hearing the state's recommendations and the vendor's arguments before deciding what action to take.
No statewide regulations
Currently, there are no statewide regulations for enforcing liquor violations, something alcohol industry attorneys and leaders have asked for.
Past settlements between The Hawk and the ABC show some state leniency in setting fines and other penalties for minors found drinking in the bar.
Since 1999, The Hawk has been officially charged with nine violations, records show.
Between 1999 and 2003, the state dismissed 20 violations against the bar, agreeing that the bar would plead no contest for the other nine, resulting in the fines and suspension, records show.
Still, Owen said, of the bar's nine violations on the record, those previous to the penalty schedule's existence shouldn't be included in the complaint, according to the agreement.
Owen said he will turn in the bar's brief regarding the alleged violations on Jan. 19. After that, Groneman will decide The Hawk's punishment, which is subject to appeal.