ALJDEC

00A-0023-LIQ · Liquor Licenses and Control · 2000-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2000 at 1:30 p.m. APPEARANCES: The Licensee appeared through its attorney, Richard Burris. The Arizona Department of Liquor Licenses and Control appeared through Assistant Attorney General, Marjorie Becklund. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT 1. On January 14, 2000, Officer Ernest Hernandez observed an individual identified as Randy Johnson working behind the register at the Grant- Dragoon Texaco, the location of the liquor license no. 10103149, said license being issued to the Licensee. 2. Officer Hernandez observed that Randy Johnson was retrieving alcoholic beverages from locked refrigerated coolers and providing those alcoholic beverages to customers. The Officer observed that Randy Johnson possessed a key to unlock the coolers and did so. 3. On or about January 14, 2000, at approximately 6:55 p.m., Randy Johnson did require a covert underage buyer (“C.U.B.”) known as C.U.B. “Becky” to produce a driver’s license as identification prior to selling the C.U.B. a six-pack of beer. 4. The C.U.B.’s driver’s license indicated that the C.U.B. was under the age of 21. 5. Randy Johnson examined the C.U.B.’s driver’s license and then, despite the fact that the C.U.B.’s driver’s license indicated that she was under the age of 21, Randy Johnson accepted money from the C.U.B. and provided the C.U.B. with a six pack of Bud Light Beer from a locked cooler. Randy Johnson then placed the money in the cash register situated at the business location of Liquor License No. 10103149. 6. At the conclusion of the Department’s case, the Licensee presented a Motion to Dismiss based on the assertion that the Department failed to produce sufficient evidence that Randy Johnson was an “employee” of the Licensee. 7. The credible testimony and evidence of record established that Randy Johnson was the only individual present behind the counter at the Licensee’s place of business, that he had a key to the locked refrigerated cooler, that he rang up the sale for the benefit of the Licensee, that he accepted money in exchange for the six pack of beer and that he put the money in the cash register for the benefit of the licensee. 8. The credible testimony and evidence of record established that Randy Johnson provided a service on the licensed premises for the Licensee with the consent of the Licensee and that the actions of Randy Johnson were the acts of an “employee” and attributable to the Licensee. CONCLUSIONS OF LAW 1. A.R.S. §4-241(A) provides, in pertinent part, that an employee of a licensee who questions or has reason to question whether a person who is procuring or attempting to procure spirituous liquor is under the legal drinking age, the employee shall require certain specification as proof of age. 2. A.R.S. §4-244(9) provides, in pertinent part, that an “employee” is a person who provides a service on the licensed premises with the consent of the licensee. 3. The Department has the burden of proof in this proceeding. The standard of proof on all issues is the preponderance of evidence. A “preponderance” of evidence is such proof as convinces the trier of fact that the contention is more probably true than not. (Morris K. Udall, Arizona Law of Evidence, Section 5 (1960)) It is evidence which is of greater weight or more convincing that the evidence which is offered in opposition to it, that is evidence which as a whole shows that the fact sought to be true is more probable than not. (Black’s Law Dictionary,1182, 6th Ed. 1990) 4. A.R.S. §4-101(14) provides, in pertinent part, that an “employee” means “any person who performs any service on the Licensed premises on a full- time, part-time, or contract basis with consent of the licensee, whether or not the person is denominated an employee, independent contractor or otherwise.” RECOMMENDED ORDER In view of the foregoing it is recommended that the Licensee’s Motion to Dismiss be denied and that the Licensee be found in violation of Counts One and Two as alleged in Complaint No. 00A-0023-LIQ and that the Licensee pay a civil penalty within 30 days of the Order entered in this matter, or such other date as deemed appropriate by the Director of the Department of Liquor Licenses and Control, in the amount of one thousand two hundred dollars ($1,200.00). Done this day, September 12, 2000.

_______________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of September, 2000, to:

Howard Adams, Director Liquor Licenses and Control ATTN: Susie Hamilton 800 West Washington, 5th Floor Phoenix, AZ 85007

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488