ALJDEC

01A-0025-LIQ-RES · Liquor Licenses and Control · 2002-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2002; at 9:00 a.m. APPEARANCES: The Licensee appeared through its attorney, Peter Keller. The Department of Liquor Licenses and Control (“Department”) appeared through Assistant Attorney General, Marjorie Beckund. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Licensee is the holder of Bar Spirituous Liquor License No. 06100134 issued by the Department. 2. There was no dispute that at approximately 2348 hours on January 28, 2001 the local police were sent to the Licensee’s place of business regarding a fight at the Wagon Wheel Tavern, 2108 S. 6th Ave., Tucson, Arizona. 3. The nature and extent of the altercation is set forth in the Police report (introduced as Exhibit No.1) which provides, in pertinent part, as follows: “Ofc’s Scherzinger #256 and Brown #264 were the first units on the scene. Ofc. Scherzinger requested all available units to the scene. He advised that people were beating on cars, discarding items, and fighting. Upon my arrival, I observed several people being detained by Ofc’s Scherzinger, Brown and Gallardo #270. There was a large crowd of people in the parking lot and coming out of the bar to see what was going on. There was a lot of yelling and subjects interfering with the investigating Officers and inflaming the situation. I made contact with Anthony Chico…he is the doorman for the bar, I ordered him to close and clear the bar and notify the bartender of the order. He complied. I then asked him what he had seen. He advised me that he had left the property to use a bathroom at a nearby location (NFI). He said that upon his arrival back at the bar, there was 10-20 females fighting inside the bar. He said that he did not see any weapons. He started to try and break up the fight and order people to leave. He said that they started leaving through both doors. He said that once outside the fighting began again and then Police arrived. He said he could not ID any of the combatants.” 4. The Police Report continues: “I then spoke to the Disc Jockey team; Cristine A. Nichols…and Timothy W. Connell… Both related the same version of the story. They were working the Karaoke set-up when 2 women began fighting. They said that everyone in the bar got involved and other fights started involving the whole place.” 5. The Police Report continues: “I then spoke to Cindy Mejia,… She was the on-duty bartender during this incident. She told me that when this incident started, she was in the rear of the bar near the restrooms. She said that she ‘knew there was bad feelings’ all night between an Isabel and Rosemary (NFI). She said that she had spoken to the bar owner, Joe Pellegrino, by phone at least twice about the situation with the two women and that he had been checking on her by phone. She said that when this incident started, everybody was fighting in the area of the jukebox. … She also told me that she did not want ‘Isabel’ back on the property. I was not able to verify who ‘Isabel’ was, there are several in the area.” 6. A supplemental report, included in the Police Report, from a different police officer provides, in pertinent part, as follows: “The Bartender, Cindy, stated that Plimo and ‘Isabel’ had bad feeling towards one another all night. Cindy advised Police that she telephoned the bar owner, Joe Peligrino, at least twice of the on going situation between the Plimo and ‘Isabel.’ Shortly after the phone call, Plimo and ‘Isabel’ began fighting at the jukebox area of the bar. This is when Cindy called the Police. Sgt. Genzer advised me that earlier in the night, he had driven by the Wagon Wheel Bar and observed several women outside of the Bar arguing. When Sgt. Genzer pulled up to the Bar the gathering broke up. Plimo continued to have a hard time telling me exactly what went on inside of the bar… No subject named ‘Isabel’ was ever located. I spoke to the driver of the blazer, explained my action and damage to the door, and supplied her with a case number, the damage to the door was a dent in the center of the passenger side door where I kicked it shut for my safety.” 7. Joe Pellegrino, Jr., testified at the hearing. Mr. Pellegrino was not at the licensed premises when the fight took place. He agreed that an altercation took place on “Super Bowl Sunday” 2001. He denied that the bartender (Cindy) called him and denied any knowledge of what was going on at the bar. He testified that he spoke with Rosemary the following day and that Rosemary said that she was confronted by the other female and that a fight broke out but denied any past hard feeling with the other female and was surprised that the fight occurred. 8. A Department of Liquor Licenses and Control Investigator also testified at the hearing. The investigator agreed that he too was not at the licensed premises on January 28, 2001, and was basing his testimony on his review of the record and the Police Report. 9. The credible testimony and evidence of record established that the Licensee failed to respond reasonably and appropriately under the circumstances in this matter and that on or about January 28, 2001 prior to 11:48 p.m., an employee of the Licensee allowed or permitted two obviously intoxicated or disorderly persons, Rosemary Plimo and an individual identified as “Isabel” , to come into or remain on or about the licensed premises in violation of A.R.S. §4-244(14). 10. Notice is taken of the Licensee’s prior License record with the Department. . . . . . .

CONCLUSIONS OF LAW 1. A.R.S. §4-244(14) provides, in pertinent part, that “it is unlawful for a licensee…to allow a disorderly or obviously intoxicated person to remain on the licensed premises.” 2. “Disorderly” is defined as “Contrary to the rules of good order and behavior: violative of the public peace or good order; turbulent, riotous, or indecent.” Black’s Law Dictionary, 293 (6th ed. 19990). 3. The credible testimony and evidence of record supported findings that established two (2) separate violations by the Licensee of the charged provisions of A.R.S. §4-244(14). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Department assess a civil penalty of $750.00 for each of the two (2) violations of A.R.S. §4-244(14), for a total civil penalty of $1,500.00, against Bar Spirituous Liquor License No. 06100134 issued to the Licensee. It is further recommended that commencing on a date as specified by the Director that Bar Spirituous Liquor License No. 06100134 be suspended for a period of three (3) consecutive days, said period to cover a Friday, Saturday and Sunday under the authority of A.R.S. §4-210. Done this day, March 5, 2002.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002 to:

Myron Musfeldt, Acting Director Liquor Licenses and Control ATTN: Susie Hamilton 800 West Washington, 5th Floor Phoenix, AZ 85007

By ___________________________

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