In an unprecedented action that runs counter to some available evidence, the state's top liquor regulator has ordered a Tempe nightclub to close, based partially on criminal allegations that the county attorney deemed unworthy of prosecution.
Late last month, Howard Adams, director of Arizona's Department of Liquor Licensing and Control, filed an administrative order to permanently revoke the license of the Electric Ballroom, effective January 1. The Ballroom is one of the Valley's most vital live-music venues, and the only one to regularly host rap music concerts.
The order, which will put the Ballroom out of business if it stands, came shortly after the club was found to have violated liquor laws related to two separate incidents, both involving allegations of sexual impropriety. In one of those incidents, which occurred in January, two high school girls claim they were dragged onstage by members of the rap group Onyx and sexually assaulted. In the other, a 20-year-old cocktail waitress trainee claims Electric Ballroom manager David Seven gave her free drinks until she was drunk, then raped her in his office.
The Maricopa County Attorney's Office declined to prosecute either case. Seven and the Onyx rappers have not been charged with any crime, and there is evidence that directly contradicts some of the complaints of the girls who attended the Onyx performance.
Two administrative law judges for the liquor department ruled that under the state's civil liquor laws, the proper punishments for the incidents were relatively small fines and short license suspensions.
But Adams overruled the judges, saying that taken together, the two events warranted his department's most severe sanction--license revocation.
"I don't know why Howard Adams is trying to stick a shiv into our heart," says Electric Ballroom co-owner Jim Torgeson. "I don't know if someone's pulling his strings; I don't know if it's because we defied him by having rap shows. . . . But whatever his problem is, Howard Adams has too much power, and he's acting like he's out to get us."
As the liquor department director, Adams operates without direct oversight and is the chief regulator of the state's liquor industry. He wields discretionary power that can make or break bars, nightclubs and other businesses that need liquor licenses to operate.
On November 26, Adams made a move to break the Electric Ballroom. Torgeson was served with an official notice of revocation the next day. He has filed an appeal with the state liquor board, and the Ballroom remains open and will keep serving liquor pending that appeal.
Adams declined to comment for this story.
Administrative law judges for the liquor department made certain that November was not a good month for the Electric Ballroom.
On November 8, Judge Lewis D. Kowal found the Ballroom guilty of liquor law violations in the Onyx case, ruling that the club should be fined $250 and have its liquor license suspended for three consecutive weekdays in January.
Five days later, Judge Allen Reed ruled that Seven's actions violated a liquor law requiring a licensed business to protect the safety of its customers. He also found the club guilty of knowingly serving an underage person (the cocktail waitress trainee) and ordered the Ballroom to pay a total of $6,000 in fines and have its license suspended for 10 consecutive days in January.
Both decisions came as part of a civil process where the burden of proof is much lower than in criminal court.
The decisions were then forwarded to Adams, who must approve all penalties. "Because the two hearing officers worked independently on [the complaints] and neither were privy to the other charges, the Director feels that both orders were inappropriate," he wrote in a November 26 memo. Adams wrote that he concurred with Kowal and Reed's factual findings--but changed their penalties, ordering a permanent license revocation, the most severe punishment at his disposal.
Donny Johnson, who owns a competitor of the Ballroom, the Tempe rock club Big Fish Pub, calls Adams' revocation order "unbelievably harsh."
"A liquor license in the Valley is worth roughly $50,000," he says. "Combine that with the several hundred thousand that business is worth and you've got one hell of a penalty. They're talking about taking away a man's livelihood. For what? An underage drinker? Every bar in the Valley gets a violation like that at some point or another. Does the Electric Ballroom deserve a fine? Yes. Do they deserve to be shut down? Hell no.
"If the state's not going to arrest anyone, how can the liquor department shut the bar down? I'm sorry, but that's bullshit. There has to be something else going on. It's obvious to me we're not getting the whole story here."
Until the November hearings, the Electric Ballroom had a relatively clean record with the liquor department. The club has two other violations on file for 1996--one for allowing an underage person to remain on the premises, the other for allowing someone to drink on the premises after hours. Those violations resulted in a total of $1,250 in fines.
There are Valley bars with serious violations for unlawful sex acts and failure to protect patrons--the same charges brought against the Ballroom--whose licenses are still valid. For example, the Phoenix topless club Hi Liter has incurred 15 violations for simulated sex acts in the past year. And the upscale Scottsdale watering hole Jetz was cited for failure to protect its patrons after 13 assaults, three aggravated assaults and two sexual assaults allegedly occurred on the premises.
Although Adams did not respond to numerous requests for an interview, a recent article in the Arizona Republic quoted him saying, "You can't let a place get away with allegations of rape and dragging people up on stage and simulating sex."
Torgeson maintains his club is innocent of both charges. He says he suspects that Adams has used those two violations as a smoke screen--that Adams really wants to shut down the Ballroom for other, political reasons. "All that's been proven in either of these [cases] is that an underage person got drinks," says Torgeson. "It's like we're being executed for shoplifting.
"We're scratching our heads here. It's like, something else must be going on, because this doesn't add up. What is it? I don't know. He [Adams] won't talk to me . . . but my best guess is it has something to do with the fact that, more or less, we're the only ones in the Valley who do rap shows."
The liquor department and other Valley law enforcement agencies have certainly not been kind to nightclubs that host rap music. Last year, a New Times report revealed that liquor laws are selectively enforced against rap venues. In one instance, the liquor department told Club Rio it could not serve alcohol the night of a concert by rapper Notorious B.I.G., but allowed liquor sales the very next night for a concert by alternative rock band Sponge ("The War on Hip-Hop," December 21, 1995).
Adams has personal reasons to be touchy about rap venues. Last June, there was a gunfight a block away from the Roxy, a Phoenix nightclub that hosted hip-hop teen nights. One man died in the parking lot, but two more who were shot made their way to Adams' house nearby. One of them died literally on Adams' doorstep, the other in a car outside. Adams yanked the Roxy's liquor license a short time later.
For about the last year, the Electric Ballroom has been the Valley's only nonunderground venue for live rap music, hosting local talent showcase nights along with concerts by national rap acts, ranging from gangsta artists such as Onyx to more socially conscious, antiviolence groups like the Fugees.
Starting with a Halloween concert by the Pharcyde, rap shows at the Ballroom recently increased in frequency to an almost weekly basis. Torgeson requires rap promoters to hire an imposing contingent of Black Muslims to augment the venue's usual security force, and there have been no shootings or serious fights at any of the Ballroom rap shows, either inside the venue or in the parking lot.
But Torgeson says that during a meeting on all-ages concerts that took place at the Ballroom about 10 months ago, Adams personally warned him against hosting rap shows.
"He told me that he had heard 'those people' were looking for a new home, and said something like he felt he should tell me that 'those people' often cause problems for club owners in this city," says Torgeson. "He definitely used the words 'those people,' and it seemed like maybe he was trying to scare me off."
It was at the Ballroom's first rap concert of the year--a January 21 performance by the gangsta rap group Onyx--that the first of the two incidents Adams cited in his revocation order occurred. Two high school girls--Michelle Vega and Brandi Adamson, then 17 and 18 years old, respectively--claimed that during a song early in Onyx's set called "Suck Tha Next Nigga's Dick," the rappers pulled them from the audience against their will, grabbed their hair and forced them to simulate oral sex. Vega said that rapper Fred "Fredo" Scruggs grabbed her hair and mashed her face into his clothed crotch as he gyrated his hips. Adamson said Scruggs and Kirk "Sticky Fingaz" Jones did the same thing to her about two minutes later.
Witnesses who were in the audience at the Ballroom that night gave police and Judge Kowal conflicting accounts of how Vega and Adamson got onstage, how long they interacted with the rappers and what exactly happened. In his decision, Kowal stated that the "more compelling and persuasive evidence" established that both girls were pulled onto the stage, that they were onstage with the rappers for approximately 10 minutes, and that both had their heads pushed into one or more crotches.
But a videotape of the Onyx concert recently obtained by New Times appears to disprove the first two of those findings, and calls into question the third. The tape, which was not used as evidence in the hearing, clearly shows that both girls crawled from the audience onto the stage. Neither was dragged up by the rappers.
Once Vega got onstage, the tape shows, Scruggs briefly put his hand on her head while she was seated and moved his hips in a suggestive manner. It's not clear from the tape if her face was actually pressed into his crotch or not, but whatever happened, it lasted only seconds. Then Vega stood up, looking annoyed, and one of the Onyx rappers shoved her offstage into the audience. Members of the crowd booed.
Adamson crawled up next, with several audience members helping her. As she got onstage, the tape shows, Scruggs moved his pelvis toward her from a distance of about a foot, but did not grab her hair. Then Jones put his hand on her head and, holding her head to his side at arm's length, gyrated his hips for about three seconds. Then Adamson stood up and was pushed back into the audience (throughout the concert, several other members of the audience, both male and female, clambered onstage and got pushed off). Both Vega and Adamson got onstage a second time, and walked without incident to the rear of the stage area, where they stood near a deejay.
Key facts surrounding the second liquor violation Adams cited are also in dispute. Here's what is incontroverted: On the night of May 3, Shelle Hatle went to the Ballroom around 6 p.m. She was to learn how to be a cocktail waitress by following around a friend who already worked at the club. Hatle was four weeks shy of her 21st birthday at the time.
After shadowing her friend for a couple of hours, Hatle was introduced to manager David Seven, who offered her a free drink. Hatle later testified that she told Seven she was only 20 years old, and that he told her that was no problem and gave her one of the plastic wristbands the Ballroom uses to designate a patron as being over 21. Seven testified that Hatle told him she was 21, but admitted to Judge Reed that he never asked her for identification.
Seven got Hatle a beer and the two grabbed a table. Over the next two hours, the two sat together talking and drinking. Seven ordered Hatle six more beers and two "kamikaze" shots (each of which contains a shot of vodka and citrus liqueurs) for a rough total of nine drinks, all of which were free. Hatle testified in the liquor violation hearing that she weighs 120 pounds. She also testified that Seven was ordering kamikazes for himself, but she wasn't sure how many he consumed.
The two sat in the pub talking and drinking until shortly after 11 p.m. when, Hatle testified, Seven asked her if she wanted to go to his office "to see some pictures of him with famous people and some pictures that David Koresh had drawn for him." She agreed. Once they were inside the office, Hatle said, Seven closed the door and kissed her. She testified that she returned the kiss, but afterward told him that she felt uncomfortable. She said that Seven then took off her clothes and told her to lie on the floor of his office, where he performed oral sex on her for a few minutes, then put on a condom and had sex with her.
According to a police report, Hatle told a police officer later that night that she never resisted Seven or tried to push him away. She told the officer that she was violently raped by an ex-boyfriend about a year ago, was scared, and decided to just "let him have what he wanted." At the hearing, however, she testified that Seven forced himself on her, and that there was a struggle, but she was too scared and drunk to defend herself.
"I couldn't effectively resist," she testified. "I was petrified, in shock, and I could barely speak or stand up."
Asked about the contradictions between her testimony and her statement to the police officer, Hatle said, "I was very intoxicated. [The officer] got as much out of me as he could." The police report noted that, at 1 a.m., Hatle appeared drunk and could not walk without assistance.
In his revocation memo, Adams wrote, "The Department finds it particularly offensive that a manager would induce a person under 21 years of age to overindulge in spirituous liquor, and in an inebriated state, seduce her in his locked office."
Seven testified that Hatle never resisted, either physically or verbally.
"I couldn't have raped her if someone put a gun to my head," he recently told New Times. "I really liked her. I thought we would be going out."
Seven provided New Times with results that, he claims, show he passed a lie-detector test in which he denied forcing himself on Hatle or using verbal coercion to persuade her to have sex with him.
After Hatle left Seven's office, she told two friends that Seven had just raped her. They took her to a nearby restaurant and called the police. When the police arrived, they interviewed Hatle and then Seven. Seven first told them he had only kissed Hatle in his office, then changed his story to say he had only given her oral sex. Then, after an officer searched the office and found a used condom, Seven said he had masturbated into the condom after performing oral sex on Hatle. Finally, he admitted to having sex with Hatle.
Seven was not arrested or charged with a crime that night, but his lies cost the Ballroom dearly in the liquor violation hearing. Reed ruled that his testimony was not credible, and found the Ballroom guilty of knowingly serving Hatle and not providing for her safety. Seven is still employed as a manager at the Ballroom.
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"David made a bad judgment call, but I don't believe he raped that girl, and he's still a good manager," Torgeson says. The Ballroom's owner says he plans to appeal the revocation order "as high as I can take it if necessary."
The first level of appeal is the state liquor board, which will hear the matter sometime early next year. If the board upholds Adams' order, the next round would be fought in state superior court.
"I will never let this go," promises Torgeson. "I'm going to be like a pit bull on this one. I will never shake loose. We will not be closed down, and I will not rest until this is done.