Upthegrove, prosecutor meeting to discuss Brownstone charge

LIMA — A local bar owner who for years has been a loud critic of the Lima Police Department is on the verge of winning the latest case police have brought against him.Lima Municipal Judge William Lauber appeared to tip his hand Friday on how he may rule in the case against Jason Upthegrove over his bar, the Brownstone. “The question I have is do you believe, is it your opinion, that Jason Upthegrove maintains the Brownstone for the purpose of allowing the possession or the use or the sale of illegal drugs, or is he merely negligent?” Lauber asked Lima Police Maj. Angel Cortes.Lauber’s question drew numerous objections from Lima Law Director Tony Geiger, and Cortes did not answer the question. Lauber soon after took a break in Upthegrove’s misdemeanor trial on the charge of keeping a disorderly house, which accuses Upthegrove of allowing the use of marijuana inside his bar. During the break, Upthegrove and Geiger met behind closed doors for about an hour. When they came back into the courtroom, Geiger asked to continue the hearing until next Thursday, the next available time for the courtroom. Both men declined to comment after the hearing.During the trial, Geiger called four police officers to testify they smelled marijuana inside the bar on Feb. 17. Officers were doing an inspection of Upthegrove’s bar that day near closing time. He also asked officers about other times they smelled marijuana inside the Brownstone.While all four officers testified they smelled the strong odor of marijuana, none would say they observed Upthegrove letting people use marijuana. Although he is not an attorney, Upthegrove is representing himself and had a clear strategy in his line of questioning. He followed points he made during his opening statement: that he never knowingly allowed the use of marijuana inside his bar, would stop someone from smoking if he could find the person, and wants to prevent the smoking of marijuana inside his bar at 337 N. Elizabeth St.Upthegrove used each officer Geiger called to bolster his case by asking each to produce evidence he allowed marijuana to be smoked at his bar. He also asked them why — if they were so convinced smoking was happening — they did not stop and search people who were leaving. Officers gave different reasons, including officer safety, saying there were between 10 and 15 officers versus as many as a few hundred people. Officers explained the smoker could have been found, but it would have difficult. Upthegrove used that to support his case that it was even harder for him, by himself, to ferret out the marijuana smoker. “They make it sound like I’m just sitting on my hands watching it happen,” Upthegrove said during his opening statement. Upthegrove used Cortes, one of the highest-ranking officers in the department, to his advantage to chip away at the city’s case. He tried to prove a point that marijuana can easily be smelled in the clothing of people who smoked it, no matter where it was smoked.“It really sticks to your clothes and every fiber of your body. You can’t just take air freshener to make it go away. It’s there,” Cortes said. Police also used an audio tape of the inspection, apparently recorded by a microphone on an officer, that captured Upthegrove’s conversation with Cortes the night in question. Upthegrove is heard saying he takes action against anyone he or an employee sees smoking marijuana but said he cannot control 200 or 300 people at one time. Cortes is heard telling Upthegrove it doesn’t matter if he cannot control it, it’s his business. Cortes even refers to Upthegrove’s bar as the worst bar in terms of marijuana smoking. On cross examination, however, Cortes said he only remembers smelling marijuana in two other bars despite having been in every bar in the city over his career.Upthegrove is then heard saying he does not condone marijuana smoking. “It’s just hard to get our arms around,” he’s heard telling Cortes.During cross examination, Cortes said Upthegrove was not necessarily asking for police help despite talking to officers about the problem.“You did say you were trying to get things under control,” Cortes said. Cortes further said there were no arrests made the night in question for the use, possession or sale of marijuana. He also said Upthegrove’s customers have no regard for him as the bar owner and light up whenever they feel like it.Upthegrove asked if there was proof he knowingly allowed it.“I can’t say you knowingly allowed it in your bar,” Cortes said.None of the officers who took the stand observed anyone smoking marijuana inside Upthegrove’s bar. While they smelled it and found a couple small discarded bags, they did not find marijuana with a specific person.Upthegrove, the local head of the NAACP, has been a vocal critic of police — especially so after police shot and killed an unarmed mother holding her baby during a drug raid four years ago. Much of his criticism is directed toward equal police protection for the black community.Just last month, Upthegrove was convicted of disorderly conduct, a minor misdemeanor, for making inappropriate comments to officers inspecting his bar. Police also have sought to close his bar and pushed the measure through council which voted to ask the state liquor commission to not renew his liquor license.One of the key components in seeking the closure was what police called a higher number of calls — 47 — to the Brownstone. That number, however, didn’t even place the Brownstone in the top five bars for most police calls in Lima.You can comment on this story at www.limaohio.com.