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Questions of character

Mike Cooper’s drug conviction was buried in the past. But legal provisions on morality — and a single state official— have made the incident a central factor in determining whether Cooper can sell beer at his popular destination on the Missouri River.
Sunday, September 19, 2004 | 12:00 a.m. CDT; updated 10:39 a.m. CDT, Saturday, July 19, 2008

When Michael Cooper decided to turn his home into a business on an acre of scenic Missouri River property in 1987, he had fairly modest ambitions. He envisioned a simple place where fishermen could gather for boat club meetings and buy bait and cold beer.

Cooper didn’t stop at a clubhouse. Working closely with government agencies, he obtained grants to add gas services, build a boat dock and put in a new stairway. He opened a campground, added Thai and barbecue kitchens and provided a weekend venue where local bands could play as the sun set along the river.

Before he knew it, the business he called Cooper’s Landing had gone from a small-time bait shop to a window on the river, a kind of community outpost near Easley in Boone County. On the advice of family members who had invested in his business and were worried about increasing liability risks, he decided to file for status as a limited liability corporation.

The disaster that followed had nothing to do with slipping on a dock or breaking a leg, and in the end, the damage may exceed anything the family lawyer could have imagined.

In June, Cooper lost his liquor license, and along with it, he said, thousands of dollars in beer sales. What hurts more is not the loss of income, Cooper said, or even the potential loss of Cooper’s Landing — it’s that his credibility has been called into question by a bureaucrat who doesn’t know him and by a rarely used legal clause that Cooper said doesn’t describe him.

[photo]

Groups of people gather around a sunset bonfire at Cooper’s Landing, a popular spot on the Missouri River. Mike Cooper, owner of the Landing, worries that the loss of his liquor license may drive him out of business.

Missouri liquor laws prohibit granting a liquor license to any person who is not of “good moral character” — a standard that Keith Fuller, the state supervisor of the Missouri Division of Alcohol and Tobacco Control, alone has the authority to interpret.

In this case, Fuller found Cooper, who was convicted of a felony more than a decade ago, to be such a person. That led to a decision to deny Cooper’s application for liquor-license renewal.

“There’s not a clear-cut definition of what ‘good moral character’ is,” said Charles Smarr, state supervisor of the division for eight years before Fuller. “It’s a nebulous standard.”

Although previous cases can provide him with insight, Fuller said, they don’t bind his decisions.

“That gets us into this realm of debate,” Fuller said.

And there has been debate. Fuller’s denial of Cooper’s renewal application sparked an outpouring of support from people who like Cooper’s Landing, admire its owner and enjoy the atmosphere he has created. Over the summer, more than 40 letters were sent to Fuller in defense of Cooper’s character and in support of restoring his license to serve alcohol.

Cooper, 55, admits he was convicted of drug possession years ago, but he said the state’s decision now is based on erroneous records. Also, he maintains that the license application form was unclear and that every attempt he has made to explain has fallen short with the Missouri Division of Alcohol and Tobacco Control.

Cooper appealed the decision, and the case was heard before Administrative Hearing Commissioner John Kopp in early August. A decision is pending.

In the meantime, Cooper has had to lay off his summer help. He said he works 16 hours a day, seven days a week, trying to keep his business alive.

Jim Low, a long time patron of the Landing, was one of Cooper’s witnesses at the August hearing. Low, news services coordinator for the Missouri Department of Conservation, and other supporters said what they find most troubling is how the character of a man they respect has been called into question without what they see as proper consideration for his community contributions over the past 11 years.

“Mike doesn’t deny that he had trouble with the law, and he’s clearly not proud of that,” Low said. “But he is proud of having moved beyond it, and to see him dragged through all the details of that past history when there is so much recent history that is so much more positive struck me as kind of ugly.”

First impressions

After having a liquor license for 16 years without a violation or complaint, Cooper didn’t expect trouble when he applied for a new license as a limited liability corporation.

Although he was convicted in 1993 of possession of 2 grams of cocaine, his probation had long since been completed. He thought he’d really put his past behind him when, in 1996, he received a letter from the Boone County Circuit Court stating that his probation was discharged and “all rights restored.”

So when the new application asked if he had prior convictions, he answered “no.” He maintains that he believed “all rights restored” meant that the felony charge had been removed from his record. It hadn’t.

In a routine background check, the Missouri Division of Alcohol and Tobacco Control found Cooper’s answer differed from his record. It then denied his application.

The appeals process

When state Liquor Control officials revoke or deny a license, the applicant may appeal the decision to the Administrative Hearing Commission. If the application is for a new license, the burden of proof is placed on the applicant. If a license has been revoked, the

burden of proof is on the state to prove the license should be taken away.

During the hearing, the state provides testimony to support its case, and the defendant is allowed to have character witnesses, much like a trial.

After the hearing, either side has the option for judicial review and may appeal to the circuit court, but no new evidence can be presented. If still unsatisfied, either side can appeal to the District Court of Appeals and then the state Supreme Court.

In May, Cooper went to Jefferson City for what he thought would be a routine meeting to clear up the issue. Although Fuller declined to comment directly on that meeting, he said: “If you have a conference with the individual and the individual is not forthcoming, I believe that indicates more of an intent to mislead a public official.”

But Cooper said he left the meeting thinking the door was open for him to drop the LLC application and instead renew his original sole proprietorship license, as long as he provided documentation of his criminal record.

After submitting that documentation, Cooper said, he was surprised when, in June, Fuller refused to renew the license Cooper had held for nearly two decades. One of the reasons cited was that Cooper lacked good moral character because of his criminal history. In the denial letter, Fuller stated Cooper was charged with two felony drug counts — possession of a controlled substance and possession with intent to sell — and that he was convicted on both counts.

However, Boone County Circuit Court and Missouri State Highway Patrol records indicate that Cooper was only convicted of the possession charge. The second, more serious charge was dropped.

It was an apparent error that may be immaterial. Even one felony conviction could be enough to call a person’s moral character into question. But what concerns Cooper’s attorney, Brian Gepford, is that if the division officials were looking at a mistaken record when they met with Cooper in May, that might explain why they thought he had been evasive and ultimately denied his license.

During testimony at the recent appeal hearing, Gepford said one official did say that the record the division cited was mistaken, but in an interview with the Columbia Missourian last week, Fuller would not confirm that an error had been made.

“As much as I would like to correct what some people believe as truth, I don’t see it as my role,” Fuller said.

Aside from the conviction, there were other grounds cited for denying Cooper’s license renewal. Fuller’s letter states that after being convicted, Cooper did not make “full, true and complete answers to all questions in the application” because he failed to notify the state about his record.

But Gepford pointed out that there are actually no questions on the renewal application and no place to disclose a felony record. The form applicants must sign, obtained by the Missourian, states that no change “relative to the applicant or his business” has occurred since the original application.

Lawyer Rusty Antel, who represented Cooper in his drug-possession case in 1993, said the wording of that statement is vague and could leave applicants confused.

“That’s a terribly bad way to phrase it,” Antel said. “My hair’s turning gray. I’ve aged a year. I’ve gotten divorced. There’s a lot of things that have changed, but what are they talking about?”

Cooper said he interpreted the statement on the renewal application as referring to changes involving addresses, business names and the like.

“I thought this whole thing was behind me,” Cooper said, “and here it comes up again.”

Morality tale

Labor Day weekend is usually one of the busiest times of the year at Cooper’s Landing. But three weeks ago, as Cooper stood behind the store counter waiting for customers, only the phone was keeping him busy. Callers wanted to know if there would be beer available to purchase while the band played.

“No,” Cooper said. “But we really need to sell some sodas, so come on down anyway.”

As the band set up outside, a small group began to gather in the shade of a sycamore. The conversation centered on the Landing’s future and the unusually small Labor Day turnout.

“People are just coming down here, getting their food and going,” said Chim Duncan, who owns the Thai kitchen at the Landing. “It’s no fun anymore.”

And in the view of many of those who wrote letters and testified on Cooper’s behalf, it’s just plain unfair. Steve Johnson, the executive director of the Missouri River Communities Network, is one of those people.

“Yes, I think Mike made a mistake and probably should have answered the question (about his past) differently, so yeah, fine him,” Johnson said. “But to totally take away his business after he worked this hard at it is kind of unfair.”

Missouri statute allows authorities to revoke or deny liquor licenses if an applicant lies, but Gepford said there must be more than proof that it was a lie; there also must be proof that there was intent to deceive. And, in Cooper’s case, Gepford said, there was no such intent.

That, he said, is why the state had to rely on the morality clause in denying Cooper’s application.

The history of the clause is as old as liquor law itself. In the post-Prohibition years, alcohol was seen as highly dangerous, and Liquor Control was placed under the auspices of the Department of Public Safety. Morality clauses, included in many states’ original liquor licensing laws, sprang from the belief that alcohol consumption harmed a person’s moral character.

Smarr, Fuller’s predecessor, said the morality clause was used rarely during his eight years as state supervisor. It was mostly used in cases involving drug sales, controlled substances on the licensed premises and serious criminal activity, he said.

Fuller said that Alcohol and Tobacco Control does not keep data on how many times morality has been the basis for penalizing a licensee and that he couldn’t recall how many times he has used it. He said previous criminal history was typically the basis for calling an applicant’s moral character into question.

Missouri liquor law statutes

Reporting changes

11 CSR 70-2.030 (1) If during the period for which a license is granted there be any change of facts or information differing from that set forth in the original or in any renewal application on file with the supervisor of liquor control, written notice shall be given him/her within 10 days after the charge.

Full disclosure policy

(8) No license shall be granted to an applicant unless s/he makes full, true and complete answers to all questions in the application. If the applicant shall make any false answer to any question in the application or make any false statement of a material matter in his/her application, it shall be cause for suspension or revocation of any license issued

pursuant to the application.

Time considerations

311.212 - The division of liquor control shall not suspend, revoke, refuse to renew or refuse to grant a license issued under the provisions of this chapter or chapter 312, RSMo, based on a violation of any provision of this chapter or chapter 312, RSMo, or of any rule or regulation promulgated by the supervisor of liquor control, when such violation occurred more than three years prior to the division's decision to suspend, revoke, refuse to renew or refuse to grant such license.

An issue of morality

311.060 1. No person shall be granted a license hereunder unless such person is of good moral character...

“One of the goals of state regulators has been to keep the criminal element out of the liquor industry because, historically, the criminal element and liquor have a very negative past,” Fuller said. That applies not just to hard-core “Bugsy Malone gangster types,” he said, but even to people who made bad decisions in their youth and have since cleaned up their acts.

The type of crime, the time elapsed since the conviction and the licensee’s “rehabilitation” are all considered in regard to moral character, Smarr said. It would be important if the licensee had made every effort to be a productive member of society, he said.

That is where Smarr and Fuller seem to part company philosophically. Fuller said a person’s past behavior cannot be irrelevant, no matter how good a citizen they have become.

While Cooper’s supporters say they do not expect his criminal history to be dismissed, they do want the 11 years since his conviction be taken into account.

“To me, this decision goes against the logic of the correction system in the United States, which is the concept of allowing people to prove themselves productive members of society,” Johnson said.

Cooper said he doesn’t object to the morality clause itself, but he believes better guidelines on what constitutes good moral character are needed. And they shouldn’t focus solely on criminal history, he said.

An arbitrary system?

Kurt Schaefer, the former assistant attorney general representing Alcohol and Tobacco Control, said that although a great deal of authority is given to the state supervisor, the option to appeal is what makes the system fair. While Smarr agreed that the system works, he said few division decisions are ever appealed.

What is somewhat controversial about the system, Schaefer said, is that if, upon appeal, the commission finds that there has been a license violation, the case returns to the supervisor, who has sole authority to fine, suspend, revoke or deny a license. While the supervisor’s initial decision can be appealed, generally the penalty cannot.

Sometimes, that system appears to result in different punishments for similar offenses.

For example, in a December notice from Fuller to liquor wholesalers, a bar in a veterans’ club was charged with immoral character, false answers on an application and violation of oath — charges that seem similar to Cooper’s, if not more serious. In that case, the license was suspended for 30 days. At another establishment, the charge was possession of a controlled substance, and the fine was $500 — the same penalty given to a business charged with failure to post its license and stamps.

Mike Cooper’s history

1987

Michael Cooper is granted a liquor license for Cooper's Landing.

1992

Cooper is arrested on two drug felony counts: possession of a controlled substance and possession with the intent to sell. The police confiscate $20,000 from him during search and seizure, claiming it is drug money. Cooper says he had just cashed out his 401(k) and has documentation to prove it.

1993

Cooper pleads guilty and is convicted of possession of a controlled substance; the more serious charge is dropped. He receives five years’ probation.

1996

Cooper's probation sentence is shortened to 2½ years because of good behavior, and he has all his rights restored.

1996

Cooper is indicted on a federal conspiracy charge related to his 1993 conviction and connecting him with a drug ring involving friends in Kansas City. He spends five months in jail because he won't testify against them. Once the case goes to trial, Cooper is found not guilty.

March 2004

Cooper applies for a limited liability corporation, 7-day beer-only liquor license, which prompts a background check that turns up the unreported felony conviction. The Missouri Division of Alcohol and Tobacco Control denies his limited liability corporation license

May

Cooper meets with Keith Fuller and other division officials. Cooper says he didn't know he had to report the felony and drops the application. He attempts to renew his regular sole proprietor liquor license, this time providing all details of his criminal history.

June

Cooper is again rejected by Fuller on the grounds that he lacks good moral character and that he failed to inform the division about two 1993 felony convictions. Cooper loses the liquor license he has held for nearly two decades.

July

Cooper sends a letter informing Fuller of the apparent error in the division records and that he only had one felony conviction. He then appeals with the Administrative Hearing Commission.

August

Cooper’s appeal is heard before Administrative Hearing Commissioner John Kopp. Cooper is awaiting the verdict.

Regardless of whether his decisions are popular, Fuller said, they are neither arbitrary nor capricious. He said that although some cases may appear similar to outsiders, the details are considerably different.

“We try to be as honest and fair about it as possible,” Fuller said. “Some people don’t like your decisions, but that’s the nature of being a public servant.”

The hearing and beyond

If the law specifically prohibited an ex-felon from holding a liquor license, Cooper said, he would never have contested the state. But when they denied his license on the basis of moral character, he said, he had to stand up and defend himself, even though publicly reliving his past has been embarrassing.

What made him fight, he said, was the overwhelming support he received, especially during the August hearing, where he presented a petition with nearly 300 signatures and called upon more than 15 supporters to vouch for his character. Among his witnesses were a mayor, an attorney with the state’s Division of Workers’ Compensation and a Planning and Zoning commissioner, to name a few.

Cooper’s witnesses said they were surprised by what they perceived as the accusatory tone of Assistant Attorney General David Barrett, who represented Alcohol and Tobacco Control at the hearing.

“They basically went into Mike’s whole history and the whole deal like they were trying to pronounce him guilty all over again,” Johnson said.

Several witnesses also said they were cross-examined by the state and asked about their own views on drugs.

Cooper said the hard part now is watching the crowds at the Landing thin as he waits for the Administrative Hearing Commission to make a decision. If it finds against him, Cooper said, he will appeal the decision to the Boone County Circuit Court. But even if the commission does find in his favor, there is always the possibility that Alcohol and Tobacco Control could file an appeal. Fuller said he would consider an appeal if the decision had bearing on issues such as the state’s right to penalize someone who misled officials.

If the decision doesn’t come within the next two weeks, Cooper said, he will have to shut down the Landing on weekdays so he can do outside work to pay his bills.

“Knowing the kind of place it is, and knowing how important it is for people to be able to use the Missouri River, I just think it would be a tragedy to lose it,” Low said.

Kristen Heitkamp, the Planning and Zoning commissioner who testified for Cooper, said alcohol sales are usually essential for places such as Cooper’s to make a profit. Without those sales, she said she fears the chain effect could be devastating for the local economy, which is closely linked to Cooper’s Landing.

While there may always be another bait shop, Heitkamp said, Cooper’s Landing has become a “cultural icon” in the community and a way of life for Cooper.

“It’s Cooper’s life,” Heitkamp said. “It’s what he does. It’s worth everything to him.”


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