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City of Statesboro report: Weakening of alcohol rules might have contributed to Gattos death
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Former City Manager Frank Parker responds

Editor's note: The following is a response to City Attorney Alvin Leaphart's report on the the city of Statesboro's alcohol ordinance by Statesboro-based attorney Dan Snipes on behalf of his client former City Manager Frank Parker:

Frank Parker was not interviewed or consulted as part of the City of Statesboro's inquiry into the City Council's failure to enforce its own alcohol ordinance. The results of this internal investigation were presented during the City Council meeting on November 18, 2014.

As he discussed in an interview with the Statesboro Herald in October, Mr. Parker, in his role as City Manager, was not involved in the enforcement of the ordinance during his tenure as city manager from October 2010 through June 24, 2014. Violations of the ordinance by alcohol license holders were matters prosecuted by the City's staff attorney and not by his office. The City Charter provides that the City staff attorney is hired by City Council, not the City Manager.

Mr. Parker did have responsibility for coordinating the City Council's revisions to the alcohol ordinance in 2011. These changes were initiated as part of the ballot referendum in November 2011 that allowed for Sunday alcohol sales within the City. With the exception of adding language that allowed for Sunday alcohol sales, the City Council directed Mr. Parker to further modify the ordinance by removing portions of the then existing ordinance. Prior to the first reading at the City Council meeting on November 15, 2011, City Council conducted a work session on the changes to the ordinance. Additionally, members of the council spoke privately with Mr. Parker regarding changes that they wished to be incorporated into the revised ordinance.

Mr. Parker disputes the assertions by the Mayor or Mr. Leaphart that he was responsible for drafting amendments to the ordinance in November 2011 as the changes were the result of the Sunday sales referendum and the instructions of the city council. The revisions to the ordinance were first read during a regular open meeting of City Council on November 15, 2011 and passed during a regular meeting of City Council on December 6, 2011.

Specific changes to the ordinance, beyond the addition of Sunday sales, were only made at the requests of City Councilmen. Any changes to the ordinance regarding the qualifications, background checks and training of alcohol servers or person who are employed in establishments that server alcohol were directed by members of the City Council. Any changes to the ordinance that eliminated background checks for alcohol servers or alcohol server permits occurred prior to Mr. Parker's tenure as City Manager. Any other changes to the ordinance, other than the change to allow Sunday Sales, were made by City Council. All of these other changes consisted of removing language from the ordinance.

The referendum on Sunday alcohol sales occurred after Michael Graves resigned as City staff attorney and prior to Alvin Leaphart being hired by City Council in this role. Mr. Leaphart was officially hired by the City Council in December 2011. Former City attorney Sam Brannen passed away in January 2011. Mr. Brannen served as City Attorney from 1966 until his death in January 2011. Prior to Michael Graves being hired as staff attorney, Mr. Brannen coordinated all of the City's legal work. When the former City Manager and city council hired Mr. Graves, Mr. Brannen did not coordinate all of the City's legal work. With the resignation of Mr. Graves, the City of Statesboro did not have a staff attorney until Mr. Leaphart was hired in December 2011.

The decision to disband the Alcohol Control Board was made during 2009, prior to Mr. Parker becoming City Manager. As part of the revisions to the Alcohol Ordinance in November 2011, the City Council removed any reference to the Alcohol Control Board as the Board was disbanded and no longer operational. During Mr. Parker's tenure as City Manager, he was not involved in any discussions concerning prosecution of Alcohol Ordinance violations. Enforcement of the ordinance fell within the purview of the City Attorney, a position over which the City Manager does not have managerial responsibility. Mr. Parker disputes any assertion that he instructed Mr. Leaphart to not prosecute cases in the Statesboro Municipal Court for violations of the ordinance. The City Manager does not have the authority to prosecute or dismiss any citations for violations of any municipal ordinance or any other law. Mr. Parker never took any action to influence the outcome of any Alcohol Ordinance violation during his tenure as City Manager.

Mr. Parker does not have any response to any conclusion that Michael Gatto's death may not have occurred if the Alcohol Ordinance had not been revised in 2011. Mr. Gatto's death is a tragedy and rightfully served as a wakeup call for the review of numerous policies and procedures related to the sale and regulation of alcohol with the City of Statesboro. As part of and subsequent to the Platinum Lounge closure, Statesboro Police Department requested that the ordinance be amended. Neither Council nor City staff attorney took any action. These events in the fall of 2013 should have created a similar sense of urgency to reevaluate the City's policies and procedures related to the sale and regulation of alcohol.

 

If Statesboro's Alcoholic Beverages Ordinance had not been weakened in December 2011, Michael Gatto, 18, might be alive today, City Attorney J. Alvin Leaphart IV concluded in a recent report to City Council.

The Aug. 28 death of Gatto, a newly arrived Georgia Southern University freshman, from an attack at the since-closed Rude Rudy's bar, refocused attention on Statesboro's alcohol enforcement. Police charged a Rude Rudy's bouncer said to have been off-duty at the time, Grant James Spencer, 20, with felony murder and aggravated battery.

An inquiry by city staff members into gaps in alcohol enforcement, which included a failure to bring licensed businesses to administrative hearings for more than 75 alleged violations from July 2011 through August 2013, was the latest step. Mayor Jan Moore summarized the results at the Nov. 18 City Council meeting. But the city attorney's written report was more pointed.

"Compliance with the regulatory environment that existed prior to the adoption of Ordinance 2011-14 could very well have prevented the tragic death of Mr. Gatto as well as the forthcoming lengthy imprisonment of Mr. Spencer," Leaphart wrote.

Spencer has not been tried or sentenced but remains in jail awaiting trial after being denied bond.

One basis of Leaphart's conclusion is that, before an extensive rewrite enacted by City Council on Dec. 6, 2011, the ordinance required an alcohol service permit for most employees of businesses that served alcohol, including bouncers. Getting a service permit required a criminal background check.

Records included in the city's report show that, before being hired by Rude Rudy's around September 2013, Spencer was charged with underage possession of alcohol on May 22, 2013, and sentenced that August to 12 months probation on a no-contest plea. Then, while employed at Rude Rudy's, he was arrested April 19, 2014, for driving under the influence and other charges that included possession of a false ID.

For what the outcome would have been if the pre-December 2011 ordinance had been in place and enforced, Leaphart asked city Public Safety Director Wendell Turner.

"According to Director Turner, an underage person with a pending charge for underage possession of alcohol would have been denied an alcohol service permit. ..." Leaphart wrote.

"Director Turner also stated that even if Mr. Spencer never received the May 22, 2013 charge, the ... arrest for DUI and possession of a false ID would have provided a basis to revoke any alcohol service permit issued to Mr. Spencer prior to the August 2014 homicide," the report continues.

However, Turner also noted that alcohol service permits were no longer issued even before he was appointed public safety director in 2010. But Leaphart's report asserts that the requirement for a permit, "meaning a criminal background check to work as a bouncer" remained the law in Statesboro until the rewritten ordinance was adopted Dec. 6, 2011.

The service permits are not the only basis for Leaphart's conclusion that the previous ordinance might have prevented Gatto's death.

Enforcement softened

As of 2001, Statesboro had an Alcohol Control Board that could look back at the violations occurring at an establishment over a 24-month period. Penalties started with a $1,000 fine for a first offense, increasing to a 30-day suspension and a $2,000 fine for a second offense and a $5,000 fine and a 90-day suspension for a third offense. For a fourth offense, the board had authority to revoke the license, but all penalties were appealable to City Council.

The background check requirement for employees was added by a 2004 amendment.

Changes in the ordinance in 2007 and 2011, which were also highlighted in a timeline in Moore's slideshow, tended to reduce the likelihood of penalties and their severity.

By all accounts, the Alcohol Control Board ceased to function at the end of 2009.

Then, in 2011, the ordinance was rewritten. Much of the attention at the time was on adding Sunday sales, approved by voters in a November referendum. But council members at the time did say that unnecessary or outdated provisions were being removed.

Besides eliminating the requirement for criminal background checks for employees, the December 2011 version eliminated references to the Alcohol Control Board. That both had been abandoned before the law was changed amounted to "the city knowingly failing to comply with its own ordinances," Leaphart concluded.

The December 2011 ordinance, which is still in effect, also reduced the penalties to a one-day license suspension or warning for a first offense, a three-day suspension for a second offense, 10 days for a third offense and 30 days for a fourth offense. Possible revocation was pushed to a fifth offense.

Wording was changed to state that the council "may" impose these penalties, not that it "shall."

"A licensee can get caught twice in a 12-month period, suffer a three-day suspension, and soon again start selling to underage patrons. ..." Leaphart wrote. "This creates an environment where the financial benefit of selling underage outweighs the financial deterrent."

Whose fault?

In an Aug. 3, 2011, email to then-Detective Sgt. (now Lt.) Rob Bryan of the Statesboro Police Department, then-City Staff Attorney Michael L. Graves Jr. instructed, "Council is holding all alcohol violations until a later time."

Graves resigned as staff attorney six days later.

In his report Leaphart, hired as city attorney in December 2011, states that, because the Alcohol Control Board was not meeting, alcohol licensee hearings held before council on Feb. 15 and May 3, 2011 "failed to meet minimal standards of ... due process," and that this may explain why the hearings were stopped.

At that time, 42 citations were pending, issued at 16 businesses in July 2011. Although later cases that never resulted in administrative hearings against businesses' alcohol licenses were at least prosecuted against individual defendants in Municipal Court, those 42 were dismissed altogether.

According to Moore's report, Leaphart asked then-City Manager Frank Parker in January 2012 whether the cases against the individual defendants should go forward in Municipal Court. Leaphart "reports that Parker said he did not think they should go forward, so Leaphart reports dismissing the violations," Moore said.

Moore's report also states that Parker drafted the current ordinance, without consulting the police or the city clerk's office, at a time when the city had no city or staff attorney. Similarly, Leaphart's report refers to "the then City Manager - who drafted and advocated the ordinance abolishing the Alcohol Control Board."

This is one of several points on which Parker, fired by City Council in June for reasons unrelated to alcohol enforcement, differs with the current officials' accounts. Parker's attorney, Daniel Snipes, answered several questions from a reporter with a statement on Parker's behalf, which is posted in its entirety at statesboroherald.com.

Snipes noted that Parker was not interviewed or consulted for the city's internal inquiry and stated: "Mr. Parker, in his role as City Manager, was not involved in the enforcement of the ordinance during his tenure as city manager from October 2010 through June 24, 2014. Violations of the ordinance by alcohol license holders were matters prosecuted by the city's staff attorney and not by his office."

The statement notes that the decision to disband the Alcohol Control Board was made in 2009, before Parker was hired.

Although Parker had "responsibility for coordinating the City Council's revisions of the ordinance in 2011," he did not draft the changes, but followed the direction of City Council in removing portions of the ordinance, Snipes states.

"Mr. Parker disputes any assertion that he instructed Mr. Leaphart to not prosecute cases in the Statesboro Municipal Court for violations of the ordinance," Parker's attorney also wrote.

The city attorney reports to City Council, not to the city manager. Asked why he did not tell the council about the advice to drop the prosecutions, Leaphart noted that he had been on the job just over a month and knew few people at City Hall. After the answer he received, he never asked Parker about a similar matter again, Leaphart said."I think we all could have done a lot better," Leaphart told the Statesboro Herald. "It's just very, very unfortunate that it took something like this to bring it to our attention."

 

City Attorney Report
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