Safety And Licensing Committee Votes To Revoke Alcohol License For Core’s Lounge

The Safety and Licensing Committee met 04/13/2022. They spent the majority of the meeting reviewing evidence and testimony in the Alcohol License Revocation Hearing for Core’s Lounge, LLC – Kor Xiong, Agent.

In total, the committee was in open session for nearly 2 hours and also spent around 40 minutes deliberating in closed session. Not unexpectedly, they voted to revoke the alcohol license for Core’s Lounge. If the Common Council upholds that vote, that means Core’s will no longer be able to serve alcohol although it would have the option to operate as a business that does not provide alcohol.

There were a number of exhibits submitted as evidence. You can download those below:

Committee members who were present included Alderperson Katie Van Zeeland (District 5) who was the committee chairperson, Alderperson Alex Schultz (District 9), Alderperson Michael Smith (District 10), and Alderperson Sheri Hartzheim (District 13). Alderperson Matt Reed (District 8 ) was excused. [Although not relevant to the committee’s proceedings, I did think it was admirable that Alderperson Smith attended and participated in the meeting. He did not win reelection to the Common Council and was going to be stepping down in less than a week. Perhaps understandably, some alderpersons opt to not attend meetings once the election has happened if they will not be serving on the new Council. Alderperson Reed, for example, did not seek reelection and was not present for the committee meeting, and former alderperson Kyle Lobner did not attend committee meetings after he lost his race last year.

I thought it was truly admirable that Alderperson Smith continued to attend meetings after he lost his race and continued to participate in those meetings with the same conscientiousness that he participated in them prior to his loss. It speaks well of him.]

City Assistant Attorney Darren Glad sat up with the committee members and served as their council. Assistant City Attorney Nicholas VandeCastle served as the council for the complainant who was Assistant Police Chief Polly Olson. Kor Xiong, the respondent, had opted not to retain a lawyer to represent him. [I understand that lawyers can be expensive, but when your alcohol license is on the line and your business may be severely impacted by the loss of that license, you really should strongly consider finding someone who understands the law and can help you put together the strongest case possible.]

Attorney Glad explained that the licensee would be given an opportunity to deny the complaints and, if he denied the complaints, both he and the complainant would have the opportunity to produce witnesses and cross-examine witnesses. There would not be an opportunity for public involvement. The only people who would be recognized to speak would be the committee members, the attorneys, the complainant, the licensee, and any witnesses who were called.

He reminded committee that they needed to be impartial and make their determination on the evidence presented at the hearing. The attorney for the complainant would make an opening statement, then once he was finished, Mr. Xiong would have an opportunity to show why his license shouldn’t be revoked or suspended. He would be able to make an opening statement, call witnesses, and testify himself. Once he had finished calling his witnesses, the complainant would have the same opportunity.

[Honestly, that seemed a little backwards to me. In criminal cases, the prosecution makes their case first and then the defendant, after having heard the case against them, is able to respond and mount a defense. I understand this was not a criminal case, but it seems like it would have been helpful to have heard the reason for the revocation request and listened to the testimony regarding that prior to hearing the reasons why the revocation shouldn’t happen.]

Attorney Glad went on to say that the rules of evidence did not apply at the hearing, but evidence having reasonable probative value should be allowed. Immaterial, irrelevant, and unduly repetitious evidence would be excluded. The committee chairperson (Alderperson Van Zeeland) would decide such issues. Upon the close of evidence, the committee would have the opportunity to deliberate and could do so in closed session before reconvening. The committee was required to submit a report to the Common Council and the parties which contained findings of fact, conclusions of law, and the committee’s recommendation if any.

Mr. Xiong confirmed that he denied the complaint. Alderperson Van Zeeland then allowed Attorney VandeCastle to make his opening statement.

The case was pretty straightforward, and Attorney VandeCastle explained that his job was to prove the elements of the complaint. The committee would hear testimony that on three separate occasions within the last eighteen months, the license holder of Core’s Lounge, Kor Xiong, or an agent of his, was cited for and convicted of four violations of the Appleton Municipal Code. Based upon those four convictions, and in accordance with section 9-54 of the Appleton code, a total of 225 demerit points were assessed again Core’s Lounge.

The city’s ordinance was clear that, for assessed demerit points totaling 200 or more within an 18-month period, the license must be revoked. He asked that, after hearing the testimony from members of the Appleton Police Department and seeing the evidence presented, the committee recommend to the Common Council that the alcohol beverage licenses issued to Core’s Lounge be revoked.

Mr. Xiong then gave his statement. He was originally from Sheboygan and had recently relocated to Appleton. He had moved to Appleton in the hope that he could find a better environment for a bar. The business was important to him, and he had invested all his savings into it. He understood that the license was in danger of being revoked, but he thought several incidents that led to citations had been misunderstood.

He then started to explain his case, but it sounded like he was about to give testimony so he had to be sworn in before he could proceed.

After being sworn in, he addressed the first incident in which citations were issued for Excessive Noise and for being Open After Hours. He said that his family had been generous in helping out at his business and the people who had been on premise had not been customers but family members stepping in as employees. Per the law, he always made sure to put the “closed” sign on immediately after operation hours. Most of his family members did not drink alcohol so no alcohol was being consumed after hours.

Regarding the second incident where a citation was written for Failure to Vacate Premises, he said, again, his family was helping out at the bar, cleaning after hours.

He didn’t address the third incident, but instead finished up his opening remarks by saying that he needed the money from the bar to pay for his daughter’s college. He believed that, in terms of the incidents, much had been lost in translation and they were misunderstandings that did not warrant as serious a penalty as revoking his license. “In the name of God, I hope that my plea not to revoke the liquor license will be considered, as I’m also open to negotiations on how to improve going forward.”

He then called three witnesses. I’m going to refer to them as Witness 1, Witness 2, and Witness 3 because only the first one was asked to spell his name for the record, and I will only embarrass myself if I try to spell their names based only on hearing them spoken.

The first witness was there to address the third incidence where Core’s received 6 citations for Permitting Underage Person to Loiter on Premises and seemed to be one of those 6 underage persons.

The questioning went as follows:

Kor Xiong: Have you been drinking at Core’s Lounge as the citation says we had underage drinking?

Witness 1: No, because that day I was drinking at another place.

Xiong: Have you been inside the bar before the incident happen?

Witness 1: Yes. I was inside the bar. We were there to order food. Cops showed up. I was scared, and I told him that I drunked at Core’s.

Attorney Glad: Do you have any more questions for him?

Xiong: Um. No.

Attorney VandeCastle confirmed with Witness 1 that he had received a citation that night for underage drinking. [So, the citation Witness 1 personally received would have been separate from the citations Core’s received for allowing underage persons on the premises.]

He further clarified for Alderperson Schultz that he had been drinking at a friend’s before he arrived at Core’s.

Alderperson Smith asked, “Based on the testimony that’s been given, he was cited for underage drinking on the premises though he claims he was not drinking at the premise. How is that—what’s the relevance to that?”

Attorney Glad, giving the tactful lawyer answer, said, “I think I’ll leave that to how the evidence comes in subsequently, but at this point it’s kind of is left as his testimony of what he’s testified to.”

[Alderperson Smith’s question was very much what I myself was wondering. Witness 1 received a citation for underage drinking. Core’s Lounge was cited for allowing underage people to loiter on the premises. They were separate citations given to separate people for separate things and didn’t necessarily have much bearing on each other. It was difficult to see what the purpose of having him testify was.

Things became even more confusing when Alderperson Schultz questioned him on how long he had been at Core’s.]

Schultz: About how long were you at Core’s before the police arrived and…?

Witness 1: We went there at 10 to order food and then the cops showed up around—well, actually we were we were there at 11. Cops came around at 2 because of a situation that was going on there. And Core’s is really busy so he had to–we order food and [it] took Core’s a while to make our food so we have to stay there for a while. And then after that cop showed up. I was scared. I didn’t know what to say. That’s all.

Schultz: So, your testimony is that you were there for approximately three hours waiting for food?

Witness 1: Yes.

Witness 1 confirmed that during that time he didn’t have any alcoholic beverages. [I’m not sure if it’s relevant, but, per American Addiction Centers, “On average, the liver can metabolize 1 standard drink per hour for men.” (https://americanaddictioncenters.org/alcoholism-treatment/how-long-in-system)]

His initial testimony was quite brief.

Xiong: Have you stay after hours helping me cleaning sometime after bar hours?

Witness 2: Yes.

Xiong: And as we clean, music is shut off and we just cleaning, no alcohol consumed after hours?

Witness 2: We just clean. No more alcohol consuming. Light was turned off.

Xiong: That’s all

Attorney VandeCastle asked him if he was helping clean the bar on July 25, 2021, the date of the first incident.

Witness 2: To be honest I don’t know. I was not on that, during that time, okay? But I’ve been with him for a few while before when there was no citation, but during the citation I wasn’t there. I wasn’t present.

Attorney VandeCastle asked him if he was there on September 4, 2021, the date of the second incident.

Witness 2: I can’t think back that long.

VandeCastle: No, I understand.

Witness 2: So, I’m not sure for that one because it’s been a long time. So.

VandeCastle: Okay.

Witness 2: But I usually like maybe like once—like maybe one or two times a month I help him.

VandeCastle: Okay.

Witness 2: For the big events.

VandeCastle: Okay. No further questions then, Chair. Thank you.

Alderperson Schultz, as a point of clarification, asked what Witness 2’s relationship with Mr. Xiong was.

Witness 2: [stated his name] I’m an actor and a filmmaker. I’ve been involved in the community a lot and I help vote for city councilwoman like Maiyoua. I’ve been trying to help—

Schultz: Sorry, could you just state what your relationship is?

Witness 2: Yeah, yeah. Okay, yeah, well, me and him—he’s like a brother to me. He’s a small business person and I’m a filmmaker. So, I need a place to film. One I’m always seeing is in the bar, and I ask everybody and everybody deny me. And he was the only one who’s willing to help out. So, he’s been a big part of the community for me. Help me out, make me finish my movie, and he didn’t charge me anything. We have a good connection, like a friendship.

Alderperson Van Zeeland asked if he was paid and if he had any other duties at the bar besides cleaning up. He answered that Mr. Xiong had offered to pay him, but he didn’t want anything. He just wanted to help, and he didn’t have any duties other than cleaning up.

Witness 3 testified for the longest period of time, and was potentially on the premises during one of the incidents.

Xiong: Have you been at Core’s helping clean up after hours?

Witness 3: Yes. Yes. Yes, I’ve been there. Yes.

Xiong: And have Core’s employees serve drink after bar hours?

Witness 3: On no. No.

Van Zeeland: I’m sorry. Could you repeat that? I didn’t understand what you asked.

Xiong: Have the employee or anyone serve drinks after bar hours?

Witness 3: No. No.

Xiong: [Undecipherable] When you’re at Core’s, am I always closed on time?

Witness 3: Yes, he always makes sure that everyone leaves the bars and leaves. A quarter to–10, 5 minute he warns everyone he wants everyone to leave before bar close. Yes.

That was all the initial testimony Mr. Xiong asked him to provide.

Attorney VandeCastle asked him if he was at Core’s during the first incident on July 25, 2021

Witness 3: I might have been there, I think. Yes.

VandeCastle: So, they would have been—they were given a citation that night, Core’s Lounge was, so maybe that just stuck out. Does that sound like it would happen that evening that you’re helping out then?

Witness 3: I don’t remember exactly. I think it was a different time, I think. I’m not there all the time.

Attorney VandeCastle asked some questions clarifying the typical closing procedure at Core’s. Per Witness 3, 30 minutes to close Mr. Xiong would warn everyone and then 10 or 15 minutes before close would tell them they all had to leave.

VandeCastle: Okay. So, there’s—typically it’s just employees cleaning up after say like two o’clock?

Witness 3: Yes, yes.

Attorney VandeCastle then moved on to the second incident on September 4, 2021 and asked if Witness 3 was present during that.

Witness 3: I was there. I remember that day because we had like a family event kind of. So, we had about 10 or 15, around there, family members were there. Yeah.

Attorney VandeCastle asked him a series of questions trying to determine when the patrons would have all been gone and only people cleaning would have remained.

VandeCastle: So typically, after two o’clock it’s just people cleaning is it not?

Witness 3: No, just people cleaning, yes.

VandeCastle: So, there wouldn’t be any like dancing going on.

Witness 3: No no no no no.

VandeCastle: Music would be shut off.

Witness 3: Oh, yes, yes.

VandeCastle: Okay. And would that have been the same on September 4, 2021, would that have been the case then too—music shut off, just people cleaning out around 2 AM?

Witness 3: Yes yes.

VandeCastle: No further questions. Thank you, Chair.

At this point, his testimony became a little confusing, at least in my opinion.

Alderperson Van Zeeland said it looked like police officers had visited more than once on September 4 and she wanted to know if he was there each of the three times the police came that day. My impression was that he possibly didn’t understand the question or didn’t understand the date she was talking about. He asked her to clarify the date and then gave an answer that suggested he might not have been there that day, and if he had, was unaware of what happened when the police arrived.

Witness 3: What day was that again? On the 4th or the 2020-something, 22 to 20?

Van Zeeland: Nope, this was on September 4th. It says that approximate 3AM, the officers came, and that’s when a citation was written for being open after hours.

Witness 3: I might not be there on that day. I was down the 22 to 24 there. Yes.

Van Zeeland: So, you don’t recall on September 4th when the police came and ticketed them for being open after hours?

Witness 3: No, because I’ll be cleaning in the back, so even if they come. Like I say there’s definitely been a few times when they mention that the cops shows up, but then I say one of those day I was there. They came, and then the other time when they came, I wasn’t there so I wouldn’t recall exactly what happened or remember.

[So, maybe he was there that day, maybe he wasn’t. Either way, he wasn’t a witness to any of the issues that led to the police issuing the Failure to Vacate Premises citation.]

At this point, the committee members seemed to be a little curious as to how many employees worked at Core’s Lounge vs how many family members helped out for no payment.

Witness 3 thought that 4 or 5 family members helped out, maybe a few more depending on if somebody from out of town helped out when they were in the area, but he didn’t know who was getting paid.

Those were Mr. Xiong’s 3 witnesses. He also had a number of exhibits that he entered into evidence. Those were letters from people asking the committee to not revoke the liquor license. One of them was from one of the people under 21 who had received a citation on 02/13/2022. She said she did not buy or receive drinks that contained alcohol and said that her presence during the event “should not be a reflection of the business itself, for it is a great place that allows everyone to feel a part of all of the special events that they hold.”

After those were entered into evidence and reviewed by the attorneys and committee members, the hearing proceeded with Attorney VandeCastle calling his witnesses.

First up was the complainant Assistant Chief Polly Olson of the Appleton Police Department. This was fairly routine testimony that was used to enter into evidence the affidavit of service for the complaint, the summons for Kor Xiong to appear at the license revocation hearing, the complaint, and the paperwork that was served to Kor Xiong and to provide testimony attesting that Mr. Xiong was properly served with all of these items.

Although Mr. Xiong had been provided copies of these documents ahead of time, he did not have those copies with him, so Alderperson Van Zeeland gave him time to review them. She also asked him if he needed assistance in reading them, and when he said that he did, she allowed a woman named Nou Vang to assist him. Ms. Vang would not be allowed to ask questions but she would be allowed to help Mr. Xiong for the duration of the hearing.

Once he had reviewed the documents, Alderperson Van Zeeland asked Mr. Xiong if he had any objections to the evidence to which Mr. Xiong responded, “I deny to the charges.”

Attorney Glad: Yeah, so these are being offered as evidence. Do you have an objection as to why they shouldn’t be received by the committee?

Xiong: Yes, I—Can you ask the question again?

Van Zeeland: Sure. Is there any reason why you believe any of these documents should not be seen by the committee?

Xiong: Oh, because I had the witness here.

Van Zeeland: So, I’m—I’m going to allow the evidence, but just a reminder, you’ll be able to ask questions of the witnesses. Are you saying that you have a witness for something in this document? Because we’ve wrapped that correct? I’m just gonna ask Attorney Glad a question.

[She conferred with Attorney Glad.]

Van Zeeland: So, I am gonna allow these in as evidence, but you’ll be able to ask questions of each of the witnesses that are called by Attorney VandeCastle, okay? So, I’ll allow Exhibits 1 through 4 in evidence.

After the exhibits were entered into evidence, Mr. Xiong had the opportunity to ask Assistant Chief Olson questions.

He started out by asking if he was allowed to have people who were family helping clean the bar after closing or was that against the law?

Assistant Chief Olson responded, “I guess the short answer to that would be it depends. It depends on the totality of the circumstances at the time.”

Mr. Xiong then asked, “Why did I get a citation for having a family member helping after [hours]?”

[My impression by this point was that Mr. Xiong was very much out of his element, particularly given that he had opted to not retain the services of someone to represent him, that this was clear to the committee members and attorneys present, and that they were doing everything they could within the bounds of the formality of the hearing to assist him in getting through the process and being able to make his case.]

Attorney VandeCastle mentioned that he was going to have an officer present evidence and talk about why the citations were given and he suggested that Mr. Xiong could wait and ask that question of that officer. But he stressed that choice was up to Mr. Xiong. He explained that typically they just use the complainant to provide evidence of the affidavit and the summons and complaint.

Mr. Xiong decided to wait until this other officer gave evidence.

The next witness was Lieutenant Adam Nagel. Attorney VandeCastle briefly reviewed his background and his role in the Appleton Police Department. After that, Attorney VandeCastle went through the three incidents starting with the first on July 25, 2021 in which Nou Vang, a bar manager at Core’s Lounge, received two citations, one for excessive noise and one for being open after hours.

Per Lieutenant Nagel, on 07/25/2021, officers were dispatched to Core’s Lounge for a noise complaint. They were dispatched there twice that evening. The second time at 2AM. They witnessed loud noise while standing in the 1300 block of West Washington Street, at a distance over 75 feet away from Core’s which put them in violation of a noise violation.

While in that area, the officers made contact with the bar manager, Nou Vang. At that point, they were going to issue her a warning for the noise due to her cooperation. At that point it was 2:40AM in the morning, ten minutes past bar hours. They noticed about a dozen people in the bar, still engaging in patron-like activities. Due to both the noise violation and the failure to vacate at bar time, Core’s Lounge received two citations that evening.

Attorney VandeCastle asked multiple questions to draw out pertinent details. Ms. Nou had been told they needed to close. When the officers made contact at 2:40AM, clean-up was not happening, testimony had previously been given that at around 2AM no music would be on and that there would just be cleaning up but that was not the case in this instance, Ms. Vang had been told at that time that even if family or friends were there, they needed to be engaged in the act of cleaning up in order to remain on the premises.

Attorney VandeCastle then entered into evidence the judgement of conviction for the excess noise violation that Ms. Vang had received during that incident and the conviction for failure to vacate the premises and confirmed that both of those convictions together resulted in a total of 95 demerit points against Core’s Lounge.

He moved onto the second incident from 09/04/2021 in which Kor Xiong received a citation for being open after hours.

Lieutenant Nagel walked through that incident. At approximately 2:51AM, officers were dispatched to Core’s Lounge. They were there approximately three times that evening, the incident report regarded the 3^rd. The officers arrived on scene at 2:59AM. The officers heard sounds of music playing inside and through the front windows they observed approximately three females dancing on the dance floor. One of the females was drinking a bottle of what appeared to be beer. There were also multiple people still sitting or standing at the bar, and a bartender was behind the bar. The officer who wrote the reported observed drinks still on the bar in front of people.

The officer knocked to the door and made multiple attempts to get the attention the people so he could enter because the front door was locked at that time. Eventually the door was opened by a manager identified as Nou Vang. The owner Kor Xiong also came to the door. They allowed the officers inside and the officers explained to them that they had received noise complaints.

The officer explained to Ms. Vang that he saw people dancing and drinking inside the bar, and it was supposed to be closed. When asked for the liquor license, they showed them the license posted on the wall next to the bar. The name Kor Xiong was on the license. After speaking with Mr. Xiong and Ms. Vang they went back and wrote the citation for being open after hours.

Attorney VandeCastle confirmed that state law set bar close time at 2:30AM on weekends. He asked Lieutenant Nagel what time bars typically closed on the weekend, and Lieutenant Nagel told him it was all over the place. Some still closed at 2AM but others pushed it up to 2:25AM. The city of Appleton did, however, make it very clear as part of their liquor licenses that closing time was 2:30.

Attorney VandeCastle offered as evidence the conviction for being open after hours or failing to vacate and confirmed that between this conviction and the first two convictions Core’s Lounge had a total of 145 demerit points.

He confirmed with Lieutenant Nagel that the city contacts license holders to inform them when demerit points are issued and offered as evidence the demerit point assessment letter the city sends license holders when they reach a certain level of demerit points, reminding them that a suspension of license can occur once 150 demerit points have been accrued. The letter also lets license holders know that a license can be revoked if they get 200 or more demerits. At the end of the letter, they offer free trainings and other options to help them operate their establishment in a safe and legal manner.

Attorney VandeCastle then moved on to the third incident in which Nou Vang was issued a citation for allowing underage persons to loiter on the premises.

VandeCastle: And this citation has nothing to do with underage people drinking on premises, is that correct?

Nagel: Correct.

VandeCastle: So, it’s just the mere fact of underage people on premises, correct?

Nagel: Correct.

At Attorney VandeCastle’s request, Lieutenant Nagel walked through the incident. On 02/13/2022, officers were dispatched to a shooting incident in front of Core’s Lounge at approximately 2:17AM. During this incident they located several underage people at the bar and issued a total of 6 citations for underage people in a licensed premise or for underage drinking. Lieutenant Nagel himself reviewed the incident and said it appeared that Core’s Lounge was not checking IDs or was unaware that there were underage people in their establishment.

Some of the underage individuals were spoken to and several of them stated that they were there for a significant portion of time which Lieutenant Nagel would describe as more than an hour or two. [That seemed very generous to me. I would have thought more than 30 minutes would have been a significant portion of time.]

He said that at least one individual had been there from 9:30PM until about 2:17AM, another had arrived at 10PM, and another had arrived around 11PM.

Ms. Vang had told the officers that she was unaware that there were underage people in her bar that evening. She also stated they were not checking IDs at the door and they were only checking IDs at the bar.

In answer to a question from Attorney VandeCastle, Lieutenant Nagel said that he thought that the 6 underage individuals who had received citations had all resolved those through guilty or no contest pleas.

Attorney VandeCastle offered up as evidence the default judgement against Nou Vang for permitting underage persons to loiter on the premise. Via testimony from Lieutenant Nagel, it was established that the difference between this judgement and the previous judgements was that the convicted party did not show up for court that day but was still found guilty. This conviction resulted in 80 demerit points bringing the total number of demerits accrued to 225.

Attorney VandeCastle offered all of those exhibits into evidence and said he had no further questions for the witness.

Alderperson Van Zeeland asked if Mr. Xiong if he had any objection to the exhibits being offered into evidence.

Mr. Xiong answered, “Whatever I need to say I already say, and I had all the witnesses, and that’s all I have.”

Alderperson Van Zeeland accepted them into evidence.

It was now Mr. Xiong’s opportunity to examine the witness. He asked Lieutenant Nagel how the officer outside the window knew that what the people drinking inside was alcohol.

Lieutenant Nagel was not there when the citation was given but he read from the report. The officer had indicated that one of the females he saw when he was looking through the window was drinking a bottle of what appeared to be beer. Lieutenant Nagel explained that the officer was indicating from his training and experience dealing with bars and other things throughout his career, that apparently what she was drinking appeared to be a beer. Lieutenant Nagel could not, however, speak to the specifics of what that entailed or what the officer saw.

Mr. Xiong wanted to know if he was being accused of serving alcohol after hours.

Lieutenant Nagel clarified that he was being accused and had been convicted of having his place open after hours, not of serving alcohol.

They clarified that the incident being talked about was the 09/04/2021 incident in which Mr. Xiong was found guilty of keeping the bar open after hours/failure to vacate the premise.
Lieutenant Nagel explained that the report indicated that there were multiple people still standing and sitting at the bar, the bartender was behind the bar, and the officer observed that there were drinks still on the bar in front of people. The officer who wrote the report had not indicated that people were being actively served but that there were open intoxicants in front of them while sitting at the bar.

Mr. Xiong asked how the officer knew that what was on the bar was alcohol instead of water or juice.

Nagel: I would say a reasonable person, a reasonable officer, would I look at that and if an alcohol bottle is still on a table that is colored similar to that of alcohol, they would use their discretion, their ability to identify alcoholic beverages, to say that that was more than likely alcohol in that circumstance.

Xiong: Did the officer walk to the bar and look in the bottle? Or is he’s just outside the window?

Nagel: They went into your facility at one point as I indicated in the report. They went into your facility and made contact with both you and Nou that evening. I don’t wanna get into speculation of what else what else the officer saw. I can just go off of what based on what’s in their report at this point.

Xiong: The officer was just by the door. I believe it’s about 100 feet from the bar. How does he—he hasn’t entered into the room. He just stood by the door. How does he know that it’s alcohol or it’s not?

Attorney Glad: I believe the question was how does he know it’s alcohol at the end of all of that?

Nagel: And there’s no way for me to know that based on the officer’s report.

Mr. Xiong had no further questions, but Attorney VandeCastle had some follow up questions in which he clarified the necessarily elements for a bar to be considered open.

VandeCastle: From your training, experience, and understanding of the law, what is required or what is considered to be open? Is there a requirement of drinks being served or is it drinks being consumed or what is t kind of a standard that you?

Nagel: The standard practice we use and how I understand the ordinance in the city of Appleton is that people within a bar after the closing times of either 2 or 2:30 depending on the evening, are only there to be helping clean. The reports that I just went through indicate that that was not happening during the occasions where citations were issued.

VandeCastle: So, in any of the report were there any mention of any people that were actively cleaning, and I mean actually in the process of cleaning the bar?

Nagel: No.

He had no further questions but the committee members had some. Alderperson Hartzheim noted that the report from the 07/25/2021 incident stated that there were “patron-like activities” going on. She wondered if he could further explain that.

He responded, “I can’t. The lieutenant that wrote that report indicated patron-like activities and I don’t know what that would mean. What I would take that to mean, if I’m interpreting what that is, would be that it was not cleaning activities or something that would indicate that people were there to close a bar.”

She also asked him if he could explain to the best of his knowledge what was allowed by law in terms of underage people being present in a bar.

Lieutenant Nagel answered, “When a bar has a primary way to make money, or I guess their monetary piece for that evening is going to be the sale of liquor or alcohol, underage people cannot be in those establishments.”

Alderperson Hartzheim also asked, “Does it matter if there was alcohol being served for the citation of open after hours?”
Lieutenant Nagel answered, “No.”

Alderperson Van Zeeland asked, in his experience as an officer, what number of employees did the typically find after hours in a bar the size of Core’s Lounge.

Lieutenant Nagel estimated anywhere from 4-6 people.

Alderperson Smith asked if any of the underage people who had been in Core’s Lounge during the 02/13/2022 incident had been in there seeking safety from the incident out in the parking lot.

Lieutenant Nagel didn’t believe that was the case because underage people had been in Core’s from 11 PM onward.

Alderperson Smith also wondered if underage persons could be on premise if they were accompanied by an adult or parent. Attorney Glad noted that there was a big difference between an adult and a parent.

Lieutenant Nagel explained that they at an establishment with a primary purpose of selling alcohol, an underage person would have to have a parent or guardian with them.

Finally, Alderperson Smith noted that all of the incidents had already been decided by courts. Mr. Xiong had an opportunity to be represented during each of those court appearances by counsel but had chosen not to or pleaded no contest. He wondered how germane that was to the committee’s deliberations.

Attorney Glad answered, “The complaint that was filed is alleging convictions for violations that our code attached demerit points to, and if there’s substantial relationship between those violations and the license activity, which is the retail sale of alcoholic beverages, then that’s really what’s the germane part to this. The presumption of innocence that they had prior to conviction is no longer there because of the conviction.”

Regarding the Excess Noise violation from July of 2021, Alderperson Schultz asked how it was determined that there was excess noise.

Lieutenant Nagel explained that the noise had to come from an amplified device. It would not pertain to noise made by yelling, for example. Amplified noise that could be heard 75’ or more away qualified. In the case of the noise coming from Core’s, the officers were probably between 100’ and 150’ away.

Alderperson Schultz noted that there seemed to be a slight language barrier. He wondered if they knew it was clearly indicated to Mr. Xiong that he was operating in a manner that did not comply with code and that he couldn’t have underage patrons in his bar. Was it clearly communicated to him the different between having employees there and family members who might be helping him but weren’t on staff or being paid?

Lieutenant Nagel answered that Nou Vang was the one who received the first citation for failing to vacate after hours. His understanding was that she was related to Mr. Xiong and would be able to communicate that information to him. Lieutenant Nagel considered her to be responsible for the day-to-day bar operations. She was aware of the need to vacate and to not have underage persons on the premises and other types of issues. He had communicated with her on several occasions and there had never been a language barrier.

Schultz: So, your testimonies is that you and your other officers felt confident that this was being communicated clearly and understood clearly, correct?

Nagel: Yes.

Alderperson Schultz also asked about the law regarding being on the premise after bar close.

Lieutenant Nagel told him that after bar close, the primary purpose of a person in an establishment had to be cleaning or closing the bar down. If officers made contact with a bar and established that cleaning and closing activity was what was happening, the citation would more than likely not have been issued. But in the incidents before the committee, that was not the situation.

Regarding the 6 underage minors who were given citations, Alderperson Schultz asked if there was any sense of how many of those were family members vs patrons

Lieutenant Nagel responded that he didn’t have a sense of that. But he pointed out that, in the report, it was noted that several of the underage individuals indicated that they were not with guardians that evening and that one of them had said he gave an incorrect date of birth to make himself appear to be 21.

In answer to a follow up question, he said that they don’t always make underagers take breathalyzer tests if they can smell alcohol on them, but for those citations a breath test was conducted.

Alderperson Hartzheim said that it had been mentioned that the police department offers assistance for anyone who is close to accruing so many demerit points that their license can be suspended. She asked if anyone from Core’s Lounge had contacted the Police Department about that assistance.

Lieutenant Nagel answered, “No.”

She asked, “Is Hmong translation readily and easily available from the Appleton Police Department to anyone who speaks that language?

He answered, “Yes.”

That was the end of the committee’s questioning. Alderperson Van Zeeland asked both Attorney VandeCastle and Mr. Xiong if they had any more witnesses and each of them responded that they did not.

The committee then entered closed session to deliberate the license revocation. They returned from closed session 40 minutes later.

Alderperson Van Zeeland made a motion to approve the report which included the findings of fact, the conclusions of law, and the recommendation to revoke the license for Core’s Lounge.

This was seconded by Alderperson Smith and then approved by the committee 4-0.

Alderperson Smith asked, for the sake of those who were watching, if Attorney Glad could explain what happened and what would take place.

Attorney Glad said, “As I explained earlier about the process, this committee is required to send a report to the Common Council. So, after deliberations, that report—a draft was made and the committee just voted on it and approved the report. It included findings of the fact from the hearing, conclusions of law, and a recommendation to Council that they find the complaint is true and revoke the license. So, then there’s opportunity for a written objection to be made so that, before it goes to Council at the next Council meeting, those objections can be heard by either party. Does that answer your question?”

Alderperson Hartzheim confirmed with him that the license would not be revoked unless or until the Common Council approved the revocation. Between the vote by the Safety and Licensing Committee and the final vote by the Common Council, Core’s Lounge still had a license and could still serve alcohol.

Alderperson Smith noted that even if the license was revoked, Core’s could still operate as an establishment that did not sell alcohol.

[I do think the committee reached the correct verdict. Outside of some kind of compelling evidence, it seems to me that the committee deciding to not revoke the license would just open up the city to potential lawsuits either now from irate neighbors who have been complaining about the noise for years or in the future if the city revokes a different business’ license after not having revokes Core’s.

At the same time, one does have to feel at least some sympathy for a man whose business has potentially been severely impacted by this decision. There certainly seem to have been steps that could have been taken all along the way to keep things from reaching the point of a license revocation hearing, but once the license revocation hearing happened, a lawyer was really probably a necessity.  If he had been able to somehow reasonably show that even one of the citations/convictions was invalid, he would have been able to argue that the total number of demerit points should have been below the 200-point threshold for revocation. The Permitting Underage Person to Loiter on Premises citation might have been the one to focus on. It sounds like there was an event of some sort going on that evening, so if they could prove that the primary way to make money that evening was not through the sale of alcohol but through some other means (maybe ticket sales or food) then they might have been able to convince the committee that conviction shouldn’t be counted against them. It still would have been a long shot and definitely would have required a lawyer, but Hail Mary’s sometime work.]

View full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=937054&GUID=32E2E8CD-DAB0-4B40-B17F-F5C63783FA15