Burglar? Or underground bartender?

I have to admire the enterprising nature of the homeless man who is said to have broken into an abandoned bar and opened it to the public:

A Placer County man has been arrested after he broke into a shuttered bar, reopened the business and started selling drinks to unwitting customers, according to the Placer County Sheriff’s department.
The Placer County Sheriff’s department arrested 29-year-old Travis Kevie of Newcastle after his 4-day stint as the barkeep of the historic Valencia Club in Penryn which had been shutdown for more than a year.
[…]
Deputies describe Kevie as a transient. They say he broke into the Valencia Club and put an open sign in the window on July 16th. Kevie kicked off his business with a six-pack of beer he bought and resold at the club. He used his profits to buy more alcohol keeping the club open throughout the weekend serving about 30 customers a day, deputies say.
Kevie is being held in the Placer County Jail for burglary and selling alcohol without a license.

The guy certainly worked hard. Not only were his customers delighted, but the local newspaper ran this glowing account about the bar’s “reopening.” It’s apparently the only bar in town, described as one of those “survivors from a mid-20th-century America when motor courts, road houses and streamlined V-8 cruisers made in Detroit filled the old Highway 40 with color and noise…”:

Kevie, whose own comfort zone includes climbing aboard bulls itching to inflict pain and adrenalin-pumping thrill rides on unsaddled broncs, said he just wants to make people comfortable and smile.
“If you’re happy and smiling and feeling good – then smile when you’re here,” Kevie said. “That’s how I want people to feel.”
Kevie said that paperwork on the bar sale hasn’t been finalized but that he has moved into living quarters at the bar and will be keeping it open seven days a week from 8 a.m. to 2 a.m.
“It’s a dream come true,” Kevie said.
Kevie’s dreams also involve professional rodeo. He said he’s put that side of his life on hold while getting the bar going and finding trusted people to work there.
In high school, Kevie was a state champion in bareback bronc riding. His father, Gary Kevie, of Newcastle, was a state champion bull rider and Travis followed in his footsteps, joining the Professional Rodeo Cowboys Association circuit. His list of victories included a first in bull riding at the 2006 Wild West Stampede rodeo in Auburn.
Kevie is off to a good start in the sprawling semi-rural community of Penryn with his decision to reopen the Valencia Club after its closure over the Memorial Day weekend. The club opened again over the weekend, with the hum of the refrigerator cutting through the stillness and the glow of neon again in the windows signaling a new start in the old bar.
Dating back to at least the 1930s, the Valencia Club – with its on-again, off-again, giant neon sign out front and a commanding presence on Taylor Road – is a unpretentious meeting place for locals and a rustic destination for out-of-towners.
Already in receipt of his first $1 bill earned at the bar he’s in the middle of finalizing the paperwork on, Kevie, 29, is reveling in the chance to make his mark and have some fun with a local landmark lovingly referred to as “The V.C.”

Finalizing the paperwork? I’ll say. The authorities may be about to finalize him, for he apparently has a prior record, and burglary is a serious crime.
Video here.
Legally, I think the man was an opportunistic squatter who sold liquor without a license. I’m puzzled by the burglary charge. California Penal Code Section 459 defines burglary as:

“entering a structure with the intent to commit a felony (or a petty theft) once inside”.

You have to have the intent to commit the felony or petty theft before entering, and if we assume that the man’s purpose was to open a business, how can it be shown that he intended to commit a felony or petty theft?
In California, selling alcohol without a license is a misdemeanor. And unless they can show that he went in there intending to actually steal (not merely use) something, I don’t see how the the state can make the burglary charge stick. If he used electricity or other utilities and did not pay for them, that might constitute theft, but they’d have to prove that he broke into the place intending to steal utilities — difficult to prove because his conduct in running the business is also quite consistent with intending to pay for utilities.
And if what this commenter says is true, the burglary charge is just baloney:

The owner told Kevie that he could stay at the Valencia Club throughout the weekend. That does not construe a “burglary charge”. This guy made some mistakes but let’s cut him some slack. At least he isn’t a welfare leech. He’s made an attempt at making a living although technically in violation of the law. His worst offense is that he was selling liquor without a license which is a victimless crime and is artificially made illegal by a controlling government. In Europe, it is common for many countries to sell liquor in public places without the stigma that it has in the United States.

That made me want to know what the owner might have to say. If he was in there with permission, the burglary charge is way off the mark.
So, after a little digging, I found the above comment confirmed by this account of the man’s interaction with the owner’s agent:

Reno’s Len Travis, property manager for the owner, said he had no idea Kevie was continuing to perpetuate what turned out to be a well-structured hoax inside the Valencia Club.
Kevie had been part of a cleanup crew after the previous bar owner – the DJPR partnership of Roseville – abandoned the business in early June, Travis said. DJPR had owned the Valencia Club bar and liquor license for the five previous years. The owner of the building and 1¼-acre property is Kenneth Stimson of Marina Del Rey.
Travis said he had a surprise encounter with Kevie last week when he dropped by to check on what he thought was a vacant building.
“I opened up the doors and he was already inside,” Travis said. “I said, ‘What are you doing here?’ and he said he was here finishing cleaning up. He had done a pretty good job.”
Travis said he gave Kevie some instructions on what else needed cleaning and left Kevie there. Travis said he thought Kevie was still employed by DJPR.
“I came back on the weekend and not only was he still here but he had an ‘open’ sign,” Travis said. “I thought it was a joke and told him, ‘You can’t do that.’”
Kevie told him it wouldn’t happen again, he said.
“I told him that if it did happen again, he shouldn’t come around here again,” Travis said.

If that’s what happened — a misunderstanding by the owner coupled with a warning not to open a bar — this was anything but a burglary! I don’t even think this rises to the level of trespassing.
Since when do owners give burglars instructions on what needs cleaning?
I think the most they have on this guy is selling liquor without a license. And the more I think about this, the more I suspect the possibility that the owner looked the other way.
MORE: Many thanks to Glenn Reynolds for the link, and a warm welcome to all.
The comments are appreciated, although please bear in mind that as a libertarian I strongly the property rights of property owners.
However, I find it hard to see the owner in this case (who appears to have known the guy was there) as much of a victim.
The only victim I can see is the State of California, which didn’t get its license fee.


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12 responses to “Burglar? Or underground bartender?”

  1. Brian Avatar
    Brian

    He was probably serving snacks that the bar already had.
    I’m sure that there is something that they consumed/used that he didn’t pay for or replace.
    This is a good example of how increasing regulations harm the economy. The easier it is to start a business and to keep it going the more that we will have.
    The more overhead that the government imposes, the more the business must charge in order to stay open.

  2. Eric Scheie Avatar

    If true, that might support a burglary charge had there been a break in. But not if the owners consented to him being there!
    Plus, I read that the bar had been closed for a year and a half, so and any food sitting that long would have been eaten by vermin.

  3. Sean Avatar
    Sean

    I’m sure a case could be made of something akin to theft of services for using a place you don’t own rent-free without the owner’s knowledge. Considering the owner is liable for anything that goes wrong on the premesis, he definitely did something wrong.

  4. Don Avatar
    Don

    Shouldn’t we call him an Undocumented Bartender, celebrate his status, accuse those who prosecute him of bigotry, etc?

  5. Daniel Avatar
    Daniel

    I imagine his clean up duties included disposing of stale snacks. If he purchased the liquor he sold, why do you assume he did not purchase snacks? Are they that much more expensive than liquour?

  6. jefferson101 Avatar
    jefferson101

    His mistake is in being in the wrong town. Don’t a lot of California municipalities declare themselves to be Sanctuary Cities for undocumented Bar-Keepers?

  7. Anonymous Avatar
    Anonymous

    The legal analysis here is somewhat lacking. It is likely the defendant in this case entered the structure on more than one occasion. According to the article, he went somewhere, bought a six pack of beer and re-entered the structure with the intent to commit theft of services, to wit: the rental value of the structure and the cost of the various utilities required to run the business of selling beer. The California Penal Code 459PC does not require any “breaking” into the structure nor does it appear to require that the entry even be unlawful. For example, a shoplifter can be charged with burglary if the State can prove that a shoplifter entered a store with the requisite intent to steal. In California, burglary can be charged as either a misdemeanor or felony and I didn’t see anything in this article that would tell us which offense was charged here.
    It is a mistake and an example of unjustified hubris, to simply assume that the police and prosecutors, who handle offenses charged under this statute every single day, have no idea what they are doing.
    Don makes a good point, albeit sarcastically: We have come to the point in this country where nearly everything is illegal and whether or not you are charged with a crime depends on your status (e.g. illegal immigrant) rather than your actual activity. The defendant in this case is an American cowboy and American cowboys always go straight to f’ing jail every f’ing time.

  8. comatus Avatar
    comatus

    As the grandson of a Prohibition Jersey-lightnin skimmer and a refinery-tech moonshiner (yes, they knew each other), I disclose my bias.
    It’s California, no? How about a Hollywood ending: the building’s owner can be cut in for a “fair share” and a no-precedent, one-time exceptional license can be issued, to the delight of the townsfolk, after which his brother can reappear from the Naval Aviation and pronounce him the richest man in town.
    “And when the people are drinking the beer they’ve made, I’ll be there, too.”

  9. setnaffa Avatar
    setnaffa

    No Daniel, you can’t smoke tobacco or serve alcohol… pot and illegal aliens are okay, tho’…

  10. On Further Reflection Avatar
    On Further Reflection

    Is is “theft of services” if the ex-employees break into the abandoned GM plant and start building cars from the leftover, written-off car parts? What about the Okies who re-plant a bankrupt field? Squatters in boarded-up houses who fix them up and restore a neighborhood?
    Once the erstwhile capitalist has received his bailout payoff, it’s not socialism to go back to work.

  11. ic Avatar
    ic

    The crime actually was selling snacks that contain transfat and saturated fat.

  12. DirtCrashr Avatar

    Yay Newcastle! That’s the good part of California where people have guns and stuff. My wife’s friend just moved up there and we visited in the Spring – it was wonderful compared to the Peninsula. If you Google the map info you can see the Valencia club and all.