Four-day ABC hearing details charges against Sidelines, Toby & Jack’s

Kevin L. Hoover
Mad River Union

EUREKA/ARCATA – A four-day administrative law hearing into alleged drug violations at two Plaza bars took place week before last in a conference room at the Eureka DHHS office, directly over a Domino's Pizza outlet.

During the hearing, an undercover officer for the state’s Dept. of Alcoholic Beverages Control (ABC) described the Sidelines and Toby & Jack’s as places where hard drugs could be easily obtained for the asking, and with the knowledge of the staff.

Judge Alberto Roldan has 30 days to render a decision as to whether or not the liquor licenses for the bars should be revoked. Roldan’s decision will be submitted to ABC Director Jacob Appelsmith. He could approve the judge’s verdict (as is usually done), reject or modify it.

ABC alleges 13 counts of sales and possession of illegal drugs and facilitation of drug sales at both bars, with the licensee’s knowledge. Some 12 individuals were arrested in April after the 10-month investigation. 

Sal Costanzo

The bars are owned by Costanzo’s Genco Olive Oil Company, which is owned by Salvatore Constanzo. He attended the hearings with his son, Michael, and attorney Patrik Griego. ABC was represented by attorney Colleen Villarreal and Agent Samantha Scott.

Over four days in a small conference room at Eureka’s DHHS office, the state Dept. of Alcoholic Beverage Control (ABC) laid out the case against the bars. ABC’s investigation was conducted in cooperation with Arcata Police, the Humboldt County Drug Task Force, Sheriff’s Office and California Highway Patrol.

Tuesday and Wednesday, the hearing focused on the Sidelines, though there was substantial “cross-pollinization” of testimony regarding Toby & Jack’s, since the two bars have some common personnel and the same owner. Thursday, and Friday morning, the quasi-court considered the case against Toby & Jack’s.

Scott, the ABC undercover agent, had little difficulty gaining familiarity with the bars’ bartenders and security personnel, as well as customers, including several low-level drug dealers. She was able to buy cocaine, MDA and MDMA on three occasions, with the alleged knowledge, cooperation and facilitation of several employees, including since-dismissed secretary of the owning corporation, Nicole Costanzo. 

ABC’s case rested on Scott’s testimony and the evidence – an assortment of baggies and bindles containing drugs, as well as a blue MDMA tablet. Current and former Arcata Police officers offered contradictory testimony, some describing the owners as pro-active in addressing problems and others saying drugs sales and use were chronic at the bars.

A number of those involved in the alleged drug dealing were unavailable to the civil hearing, since they are also accused of felony drug violations in connection with the ABC investigation.

Nicole Costanzo, bartenders Mykie Rae Bastidas and Joshua Michael Cuppett, and Jasmine Cerise “Carly” Oakeshott all invoked the Fifth Amendment in order to avoid offering testimony that might be used against them in their criminal trials. All made brief appearances in the civil hearing to plead the Fifth before and after their arraignments in the criminal cases at the Humboldt County Courthouse.

Those individuals were arraigned Thursday in Humboldt County Superior Court, along with alleged drug dealers Elijah Calvin Browning and Ryan Johnston. Arrest warrants were issued for two individuals mentioned frequently in the ABC hearing who failed to appear for their criminal cases, Scott Clinton Gamar and Jeffrey Franklin Shields Jr.

Day 1 – Sidelines

After the 13 counts against the bars were outlined, each of which could expose Costanzo to license suspension or revocation, Griego renewed a motion to continue the hearing. One had been made the previous day and denied by another judge. Griego argued that a key witness, Mykie Bastidas, would be unavailable to testify. She and others facing criminal charges related to the case were to be arraigned Thursday, and were expected to plead the Fifth Amendment in the civil case.

Griego said Bastidas was “a crucial witness” and that her testimony was crucial to the defense, since the case would come down to her word vs. that of ABC Agent Scott. 

But Roldan said continuing the hearing while the criminal trials proceed could put the case in a “holding pattern” for years, and that Griego could cross examine other witnesses not criminally charged.

Scott, a former Placer County Sheriff’s deputy and correctional officer, said she had been asked by the Humboldt County Drug Task Force (DTF) to further investigate preliminary surveillance findings of drug activity at the two bars.

Scott said she entered the Sidelines on Oct. 6, 2017, took a stool at the center of the bar and ordered a beer from Bastidas, the bartender. Young, with neck-length blonde hair, Scott was soon approached by another patron named Ryan Johnston, and the two chatted.

The conversation quickly turned to drugs – initially, cannabis. Scott complained that she was having trouble finding “white” – a slang term for cocaine – in Humboldt. Scott said Johnston asked Bastidas where he could get some “white girl” for her. Bastidas, according to Scott, said her connection was out of town. But another individual deemed a “regular” by Bastidas soon appeared at the bar and placed a small baggie in her hand, for which she paid him $40. 

Returning on Nov. 30, with a full team of undercover agents in place inside and outside the bar, Scott said she ordered a beer from Bastidas and, along with another agent, arranged to buy cocaine from patron Elijah Calvin Browning. She said he supplied her and the other agent with one baggie each of one gram of cocaine. Scott held the baggie up at shoulder level and, with Bastidas right behind her at the bar, said, “You’re the best, thanks a million.” That phrase was a signal to the undercover team that the deal had been consummated, and the agents left.

A third buy took place Jan. 25, when Browning allegedly sold her another $100 of coke with Bastidas present.

Griego, cross-examining Scott, elevated various gaps in the evidence such as missing dates on reports, and texts through which drug buys had been arranged, but were lost when Scott’s cell phone broke. He also suggested that “white” might have referred to “Great White,” a type of local microbrew. Griego also probed into ambient lighting and noise levels in the bar, and whether the bartenders could have been aware of the agent’s dealings with the drug sellers.

All in all, Scott summarized, she made four successful drug buys –three from Browning and one from Johnston, all with “house knowledge” – that of a bartender or security personnel.

EPD Officer Brian Wilson, a defense witness and former Sidelines bouncer, testified that the bar had a strict no-drugs policy. It was so pro-active in preventing drug on-site use, Wilson said, that when management became aware of women snorting coke off the toilets in the ladies’ room, Mike Costanzo suggested coating the fixtures in Vaseline. That was done, Wilson said, and ended the problem. 

Though the stakes were high for Costanzo, the atmosphere in the room was uncannily friendly throughout the hearing. Roldan, a long-distance bicycling enthusiast, ran a crisp and cordial quasi-courtroom. His response to defense and prosecutor objections appeared thoughtful and even-handed as he provided explanations for sustaining or denying them.

During breaks, the ABC attorney and agent who were trying to put the licensee and his son out of business, his attorney, the judge, the court reporter and news reporters chatted about baseball, earthquakes, restaurants, travel and other lighthearted topics. At one point Costanzo remarked that he hadn't had breakfast, and ABC attorney Villarreal shared hers with him – an energy bar and oranges. But when break time was over, the room snapped back into brisk business mode.

Day 2 – Sidelines

Griego raised questions about the “TruNarc” laser spectrography device used to identify the substances Scott had purchased – who operated it, their training, and some missing “self-check” and evidence chain-of-custody documents. He said that TruNarc operator Officer Dave Miller of DTF, who was out on medical leave and unavailable, was needed in order to establish the device’s efficacy. 

Griego even disputed the validity of driver's license images of some of the suspects provided by ABC, stating that they lacked sufficient documentation to establish their DMV provenance.

As participants adjourned for a break, the only interruption in the cordial vibe cropped up. "Bullshit!" blurted Costanzo, referring to late-arriving evidence not made available by ABC during pre-hearing discovery. After a pause, he added, "And they know it." But, having taken place when the hearing wasn't in session, the utterance wasn't acknowledged nor acted on.

Griego’s objections about evidence handling were overruled by Roldan, who said that in totality, it had been handled routinely and was sufficient.

Griego then attempted to dismantle all of Scott’s testimony that Bastidas and other bar personnel had awareness of the transactions, and repeated his doubts about the reliability of the TruNarc device and the handling of evidence.

Villarreal countered with examples of Bastidas’ cooperation in facilitating buys, and of Scott’s blatant display of the purchased drugs in front of the bartender. She said the bar owners were “legally obligated to maintain a drug-free business, and had obviously failed.

At one point, Bastidas and her attorney Kathleen Bryson showed up to plead the Fifth as predicted, then left.

Former APD, now UPD Officer Vince O’Connor said that during his three years patrolling downtown, the owners had demonstrated “good compliance” with drug laws. So did former APD Officer Drake Goodale, now with EPD, and former Police Chief Tom Chapman.

Supervisor Rex Bohn, an old friend of Sal Costanzo’s, said Costanzo had been “blindsided” by the charges, but that “this can be rectified.”

Mike Costanzo said the two bars had a stringent no-drugs policy with signage posted to that effect. He said he personally trained all employees in proper procedure, and had ejected numerous druggies from the premises.

But Costanzo also seemed to acknowledge some culpability by the personnel – all since dismissed – who had been implicated by ABC. “It really sucks that after 20 years, I have three people involved in a thing that really blindsided me,” he said.

APD Officer Luke Scown offered starkly different testimony than his former downtown-patrolling colleagues. He said it was “absolutely not a secret that there was significant drug use coming out of those two places, based on word on the street.” Even other area bars complained about it, he said. 

City Manager Karen Diemer affirmed Scown’s testimony. “Many people had shared concerns about drug dealing at these two establishments,” she said. There was a history of “excessive calls for service” at the bars. The Sidelines and Toby & Jack’s had been the most complained-about bars for the last four years, she said, except for one year when The Jam edged out Toby & Jack’s. But that wasn’t because of activity in the bar – it was due to calls about people camping in its entrance alcove.

Diemer said the chronic drug problems had been aired at a city meeting with all the downtown bar owners, but that there was no follow-up from Sal Costanzo until the ABC charges were filed in April. At this, the normally cheerful and upbeat Diemer evinced some anger. She said she told Costanzo, “I needed your help. I pleaded with you. I’m super-mortified that we would have this meeting and you would allow this activity in your bar,” Diemer said. “It’s not what this community wants.”

In closing arguments, Villarreal reviewed the successful drug buys and reiterated testimony that the bartenders had been aware of and facilitated them. 

Griego cast doubt on the employees’ awareness, stating that it was unclear whether the employees knew what was going on. “Inference is not enough,” he said.

He further objected to the unavailability of Miller, the main evidence processor, and emphasized “missing multiple steps in the chain of custody” of the evidence. Griego said the evidence should have been sent to the Department of Justice for analysis.

He said that Costanzo had been extremely responsive after the charges were filed, dismissing his own daughter, Nicole, as an employee and officer of the corporation and installing surveillance cameras.  

Day 3 – Toby & Jack’s

Griego began by again noting some missing printouts in the sequence of reports from the TruNarc device, as well as a failed calibration test. “It appears that this may not be a proper way to run this test,” he said.

But Judge Roldan deemed the TruNarc reports admissible, saying the glitches would only affect the weight he gave that evidence.

Scott said she went into Toby& Jacks on Sept. 14, ordered a drink. She said she saw a female customer stash a backpack behind the bar and plug her cell phone in to be charged, which “raised suspicions.” She then went back to the poolroom, where drugs were said to be traded.

A bouncer was stationed at the back door, and outside, people were smoking cannabis, pouring booze into water bottles and making hand-to-hand exchanges of “most likely drugs” in front of the doorman employee. 

Returning Oct. 5, Scott encountered suspects Joshua Cuppett and Scott Clinton “Scoot” Gamar. Gamar, she said, supplied her with a bindle of cocaine. She was also able to but a blue pill later identified as MDA from another individual, and a baggie of a crystalline substance identified as “Molly” – MDMA.

Much of the drug talk and negotiations, Scott said, took place with the knowledge and cooperation of bartender Joshua Michael Cuppett.

On Nov. 9, Scott went to Toby & Jack’s where she saw Nicole Costanzo, who she said hugged her and said she was going to a party where she could find “her guy” who would sell her some cocaine. 

Scott said she then bought a gram of coke from Browning for $100.

On Jan. 25, Scott went back and coordinate another buy with the help of bartender Joshua Cuppett. In the women’s restroom, she obtained a crystalline substance identified as MDMA from a woman who had stored her purse behind the bar – Jasmine Cerise “Carly” Oakeshott.

Cross examining Scott, Griego seemed to be attempting to elicit testimony in support of an entrapment defense. He grilled Scott as to whether an invitation by Cuppett to go back to his place and take cocaine was friendship, or possibly a romantic interest. “As knowledge of cocaine use,” Scott replied. 

As fate would have it, it was at that exact moment that two men entered the room – Cuppett and his attorney. The cross-examination awkwardly halted as Cuppett pleaded the Fifth, then resumed when he left.

Day 4 – Toby & Jack’s

Griego noted the emergence of fresh TruNarc testing documentation and again called for a postponement of the hearing. Roldan ruled that the lapse was inadvertent. He said he’d do research into the TruNarc device’s efficacy while mulling the verdict, and would weigh the evidence accordingly.

Griego continued to seek dismissal of all the TruNarc findings, but Roldan ruled that his objections weren’t significant enough to merit disregarding the drug evidence. Other disputes about evidence brought the same result.

At one point, Griego asked about the false identity Scott used during her assignment on the case – the name Cuppett had known her by when he asked her to come home with him. Griego contended that the undercover name could jog witness's memories and provide additional details of the alleged transactions. This demand led to a private discussion between Scott and Villarreal in an adjacent room.

ABC wished to withhold the tradecraft information, contending that Scott is using the same false name in a "major" investigation still in progress. Roldan ruled against Griego, agreeing with ABC that the specific details of Scott's undercover identity weren't important to the case.

Villarreal reviewed the testimony and evidence, and highlighted multiple instances in which employees knew of, advised and sometimes facilitated Scott on drug buys. Based on the totality of the evidence, she said, revocation of Costanzo’s ABC licenses was appropriate.

Griego cast Scott’s testimony as ambiguous and lacking in proof of “house knowledge” of the drug buys. He said that Cuppett’s interest in Scott was out of concern for her safety, and that he never profited from any drug sales. He also suggested that Scott may have confused Nicole Costanzo with other women of similar hair color and build – Bastidas and Oakeshott.

Griego further said that the TruNarc test results were presumptive rather than conclusive, and were essentially unreliable. 

He said the situation was “incredibly embarrassing” to Sal Costanzo, who’d never had any previous drug violations at his establishments. He said Costanzo had gone “above and beyond” in addressing the issues.

In that, he performed some impressive argumentative gymnastics. If, as he'd argued, the accused employees were innocent and the evidence thin, contrived and ambiguous, Costanzo's dismissals of the accused and installation of costly anti-drug video security systems to keep an eye on everyone would seem to be unjustified. Unless, that is, there was some merit to the accusations. Costanzo's having purged the ranks of several people accused by ABC of drug involvement, Griego argued, shouldn't be viewed as an admission of any wrongdoing on the premises.

As a fallback position, he said Costanazo would like to sell the license to someone else that ABC deemed acceptable, but Roldan told him that was outside his purview as a judge.

Griego said his client would understand a suspension or admonishment, but that revocation of the liquor licenses would be “undeserved and unjust.” Pulling Costanzo's licenses would be "the ultimate death penalty" for the elderly businessman.

Villarreal concluded by stating that the drug problems at the bars were well-known, chronic, allowed to continue by the owners, was an "overall and systemic problem" and had been conclusively proven.

Scown, she said, was the most credible of the APD officers, since he was on duty at the bars most recently, with close contact with the accused, their employees and customers. She said the drugs purchased there had been conclusively proven to be what they were advertised as during the transactions.

Viewed in its totality, Villarreal said, the case that the two bars functioned as an open-secret drug bazaar had been comprehensively established, and the appropriate response was revocation of Costanzo's licenses.

Roldan concluded the four-day hearing by thanking all the participants, particularly the attorneys for what he said was their thoroughness.

"I've been given a lot to wade through," Roldan said.

 

 






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