ALJDEC

01A-0026-LIQ · Liquor Licenses and Control · 2001-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2001 at 9:00 a.m. APPEARANCES: The Arizona Department of Liquor Licenses and Control appeared through Daniel R. Christl, Esq., Assistant Attorney General; Little Pats, Inc. dba Good Time Charlie’s appeared through Peter H. Schelstraete, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence on the issue of whether employees of Little Pats, Inc. dba Good Time Charlie’s (“GTC”), a licensee of the Arizona Department of Liquor Licenses and Control (“the Department”), violated A.R.S. § 4-244(14) by serving an obviously intoxicated person spirituous liquor or by allowing an obviously intoxicated person to remain on its premises for more than 30 minutes. Based on this evidence, the Administrative Law Judge recommends the following Findings of Facts, Conclusions of Law, and Order to the Director of the Department. FINDINGS OF FACT Background and Procedure The Department issued Bar Spirituous Liquor License No. 06070600 to GTC. On March 26, 2001, the Department issued the Complaint and Notice of Hearing in this matter, which charged GTC with commission of the following statutory violations: Count 1 On or about January 5, 2001, between 8:25 p.m. and 9:00 p.m., Rosemary Ulibarn [sic], an employee of the licensee, served, sold, or furnished spirituous liquor to Maurice Prue, an obviously intoxicated or disorderly person, in violation of A.R.S. Section 4-244(14).

Count 2 On or about January 5, 2001, between 8:25 p.m. and 9:00 p.m., Rosemary Ulibarn [sic], an employee of the licensee, allowed or permitted an obviously intoxicated or disorderly person, Maurice Prue, to come into or remain on or about the licensed premises, in violation of A.R.S. Section 4-244(14).

GTC answered the complaint, denying that it had committed the violations alleged in both counts. A hearing was held, at which both parties were represented by counsel. The Department offered into evidence two exhibits and the testimony of one witness; GTC offered into evidence four exhibits and the testimony of four witnesses. Evidence Admitted at the Hearing The Department’s Evidence Greg Garner, a Special Investigator for the Department, in response to anonymous complaints about GTC overserving alcohol to patrons, went undercover to GTC with Tony Ribera, another of Special Investigator, and two City of Phoenix Police Department officers to investigate the complaints. Mr. Garner testified that he arrived at GTC’s premises at 8:15 p.m. on January 5, 2001, a Friday night. The bar was fairly crowded. Mr. Garner and a companion went to the back bar, near the office and the karaoke machine, and seated themselves at a low table, the first of three from the entrance to the back bar. A few minutes passed between the time they entered GTC and seated themselves in the back bar. Mr. Garner noticed Maurice Prue, a patron, within a minute or so of arriving in the back bar, at one of the last two high-top tables, about 15’ or 20’ away. Mr. Prue was swaying side-to-side, about 3” either way, for a total of 6”, as though he were trying to keep his balance. Swaying may be a sign of intoxication because alcohol impairs equilibrium. Mr. Prue did not appear to be swaying to the music because he kept swaying when the music stopped. Mr. Prue was also talking very loudly, either to himself or another patron sitting at the table with him. Mr. Garner could not make out what Mr. Prue was saying. Although music was being played in GTC, it was not so loud that a patron could not carry on a conversation with someone at his table without yelling. No one else in GTC was talking as loudly as Mr. Prue. Shortly after Mr. Garner started observing Mr. Prue, the cocktail waitress brought Mr. Prue a pitcher of beer and a bottle of Budweiser Light beer. Mr. Garner saw Mr. Prue pull money from his pocket and look at it, appearing confused and disoriented. Finally, the waitress, whose back was to Mr. Garner, took Mr. Prue’s money. The waitress may have been talking to Mr. Prue. Mr. Garner believes that the transaction took approximately two minutes, give or take five seconds, but he did not time it with his watch. At one point, Mr. Prue stood up and appeared to hold on to the table to keep from falling down. Mr. Prue sat right back down. Although Mr. Prue continued to appear intoxicated, he was able to drink from the bottle of beer without spilling it. At approximately 9:00 p.m., Mr. Garner ended his observation of Mr. Prue by walking over and identifying himself. Mr. Garner then took Mr. Prue outside and interviewed him. Mr. Prue continued swaying and seemed to have a hard time staying upright. Outside, Mr. Garner detected a strong odor of alcohol on Mr. Prue’s breath. Mr. Prue admitted that he had drunk a 12-pack of beer before arriving at GTC and that the had drunk 4 more beers at GTC. Police discovered that outstanding warrants existed for Mr. Prue’s arrest. According to Mr. Garner, Mr. Prue became “agitated” outside. Mr. Prue did not continue talking loudly when he was interviewed outside. Although Mr. Garner had a hard time understanding what Mr. Prue was saying, he made sure he understood. Because Mr. Garner found it difficult to understand or communicate with Mr. Prue, Mr. Garner terminated the interview after eliciting the information summarized above. He did not ask Mr. Prue how long he had taken to drink the reported 12-pack, whether he had worked that day, or whether he had an injury or was taking medication that might make him appear intoxicated. Mr. Prue was taken into custody. After he was placed in the back of the police car, at approximately 9:30 p.m., Mr. Garner took a Polaroid photograph of Mr. Prue, which was admitted into evidence at the hearing. In the photograph, Mr. Prue is sticking his tongue out and his eyes are partially closed. It appears from the light patterns on the photograph that a flash was used to take it. Police did not attempt to ascertain Mr. Prue’s blood-alcohol content. The Department did not charge Mr. Prue with any criminal violation relating to intoxication on January 5, 2001. Mr. Garner never saw or spoke to Mr. Prue before or after the evening of January 5, 2001. Mr. Garner did not see any other patrons at GTC that night whom he believed to be obviously intoxicated. GTC’s Evidence Four witnesses testified on behalf of GTC: Rosemary Ulibarri, the cocktail waitress who served Mr. Prue; Frank Capaccioli, a bouncer; Donna Pomeroy, the manager; and FrancesLee M. Frank, the owner. All four GTC witnesses testified that Mr. Prue, whom they all knew as “Rick,” had been a regular patron. He has not been seen in the bar since January 5, 2001. All four GTC witnesses testified that many of the bar stools at GTC lack metal prongs on one or more of the stools’ four legs, which makes them unstable. No evidence was offered that the bar stool that Mr. Prue was sitting on lacked any metal prongs. Rosemary Ulibarri Ms. Ulibarri has worked part-time at GTC since September 1998; at the time of the hearing, she had given her notice because she had accepted a promotion with her full-time employer, Suburban Lodge, that would prevent her from working weekends. Ms. Ulibarri has worked in supervised care facilities or half-way houses, where her job required her to observe residents for signs of alcohol or drug abuse. Ms. Ulibarri testified that Mr. Prue is more that 6’ tall, weighs over 200 pounds, and works a job in construction. He is always loud and boisterous and has a “growling, slurring way of speaking.” Perhaps because Mr. Prue is so large and is “an older gentleman,” he always appears clumsy or awkward. On January 5, 2001, Ms. Ulibarri arrived at GTC at 5:00 p.m., ate some chicken wings, and drank some soda. Ms. Ulibarri starting working at GTC at 6:00 p.m., checking patrons’ identifications and collecting the $1 cover charge until 7:00 p.m. Mr. Prue came in during that time and got very close to her. She detected no odor of alcohol, but smelled sweat. Mr. Prue told her that he had been working all day and that his day had been long and hot. Mr. Prue asked her if she would be working the back bar and she said she would. Ms. Ulibarri testified that she was wearing a watch, which showed the correct time, and that a large clock had been mounted on the wall of the back bar, which was 15 minutes fast.[1] At 7:00 p.m., Ms. Ulibarri started working as a cocktail waitress in the back bar. Mr. Prue was at his customary table, the second high-top from the office at the back. At approximately 7:05 p.m., Ms. Ulibarri served Mr. Prue a Budweiser Light beer, his customary drink and first drink at GTC that evening. Mr. Prue had to stand up to take money from his front pants’ pocket to pay for the beer. He paid her with a twenty dollar bill. Mr. Prue usually paid for drinks with large bills and tipped Ms. Ulibarri $3 per round, a good tip. She was careful to return his change in bills that would allow him to give his usual tip. Mr. Prue told Ms. Ulibarri that, four to six weeks earlier, he had been assaulted by being hit with an object on his back. Mr. Prue told her that, although he did not go to the hospital immediately after the assault, he went the next day and was hospitalized for a week or a week and a half. Mr. Prue showed Ms. Ulibarri marks on his lower back and chest from the assault. Mr. Prue told Ms. Ulibarri that he had returned to work, but could only perform light duty due to his injuries. Mr. Prue excused himself to go to the men’s room once between 7:00 p.m. and 7:30 p.m. Ms. Ulibarri did not see anything about his gait that made her believe he was intoxicated. At 7:30 p.m., Ms. Ulibarri served Mr. Prue a second Budweiser Light. He paid her for it with a ten dollar bill. Mr. Prue asked if GTC still started karaoke at 8:30 p.m. bar time (or 8:15 p.m. real time). Ms. Ulibarri told him it did. He wanted to sing a Johnny Cash song and wanted Ms. Ulibarri’s help in finding it on the playlist. She told him no, he found the song by himself, and he sang it during the karaoke. The karaoke host likes to keep the music loud. Once the karaoke started at 8:15 p.m., patrons in the back bar cannot have conversations without raising their voices. At about 8:20 p.m., Robin Beggs and five other people drifted into the back bar and sat at the table next to the table that Mr. Prue was sitting at, nearest the office. Mr. Prue may have turned around to speak to Mr. Beggs, but he did not leave his usual table, the second table from the office. Mr. Prue ordered another Budweiser Light and a pitcher of beer for Mr. Beggs’ party, as well as a coke for their designated driver. At approximately 8:30 p.m., Ms. Ulibarri testified she brought the Budweiser Light, pitcher of beer, and coke to Mr. Prue’s table, and told him that the cost of the drinks was $8.75. Mr. Prue reached into his pocket and started to pay Ms. Ulibarri with a ten dollar bill. Then he pulled out a one hundred dollar bill and said, “Look at what I’m giving you.” The transaction took a short period of time, approximately 30 seconds. Ms. Ulibarri cannot stand around 2 minutes waiting on a patron on a Friday night when the bar is filling up. She did not have time to go to another table to take an order. Ms. Ulibarri took the $100 bill to the bar to get change, including her $3 tip. She had the $100 bill in her hand because she does not use a tray. Ms. Ulibarri first noticed Mr. Garner’s party, whom she suspected to be police officers, at 8:45 or 8:50 p.m. At 9:05 p.m., Mr. Garner and his party started pulling back tables and escorting people outside. When Ms. Ulibarri asked what was going on, the officer said they needed to talk to the manager. Ms. Ulibarri found GTC’s manager Donna Pomeroy outside, walking the parking lot. When Ms. Ulibarri was outside, she overheard police questioning Mr. Prue. He admitted drinking 3 beers at GTC and possibly a couple drinks at home. Ms. Ulibarri testified that Mr. Garner had asked to interview her that night, but she refused. Ms. Ulibarri testified that she has been trained to notice signs of obvious intoxication, such as patrons who ask for more alcohol in their drinks, miss their mouths when attempting to drink, light a cigarette when they already have one lit in the ashtray, sway, stagger, talk very loudly, or slur their words. At no time during the evening of January 5, 2001 did Ms. Ulibarri see any signs of obvious intoxication in Mr. Prue, based on her knowledge of his usual behavior and demeanor and the effects of the recent assault. She was serving approximately 25 patrons, however, so did not watch Mr. Prue constantly the entire time he was at GTC. Although Mr. Prue talked loudly, as he always does, another patron on the other side of the back bar was louder. Frank Capaccioli Mr. Capaccioli at the time of the hearing was employed full-time as a foreman for KBI Construction, a general contractor. On January 5, 2001, he was employed as a bouncer for GTC, where his job is to watch for obvious intoxication or fights. Before GTC employed him, Mr. Capaccioli managed 5 half-way houses, which housed 243 alcoholics and drug addicts. He has been trained to watch for people who are intoxicated. The signs of consumption of any amount of alcohol can be seen in a person’s eyes and motor skills. GTC management taught him that the signs of obvious intoxication are difficulty walking or talking or spilt drinks. On January 5, 2001, Mr. Capaccioli started the 8:00 p.m. shift at GTC. He spent about 20 minutes in each part of the bar and did not see anyone who was obviously intoxicated. Mr. Capaccioli testified that, after the karaoke started, it became loud in the back bar. Mr. Capaccioli testified that Mr. Prue is a large man, about 6’2” or 6’3”. Mr. Capaccioli does not notice or focus on specific individuals unless he first sees cause for concern. Mr. Capaccioli did not see Mr. Prue until the agents were taking him outside. Mr. Prue said that he was probably going to jail because he had outstanding warrants against him. Donna Pomeroy Ms. Pomeroy has managed GTC for five years and was working the night of January 5, 2001. Ms. Pomeroy testified that, on that Friday, Ms. Frank worked the door between 4:00 and 5:00 p.m., Ms. Ulibarri worked the door between 5:00 and 6:00 p.m., and the regular door person, Jason, worked the door after 6:00 p.m. Ms. Pomeroy testified that, perhaps once a month, she schedules and holds mandatory meetings for all employees, at which the importance of watching for signs of obvious intoxication is discussed, among other things. Ms. Pomeroy described Mr. Prue as over 6’, stocky, with a big gut. He is very aggressive, loud, obnoxious, and outspoken. On January 5, 2001, Ms. Pomeroy first noticed Mr. Prue at approximately 7:30 p.m. She talked to him between 7:30 and 8:15 p.m. He mentioned that he had been hurt and that he had just returned from California. Ms. Pomeroy testified that she spoke to Mr. Prue for approximately 45 seconds. He sounded like his usual self. Ms. Pomeroy noticed no signs of obvious intoxication in Mr. Prue. Ms. Pomeroy testified she did not recall seeing anyone at the rectangular table where Mr. Garner’s party was seated on the night of January 5, 2001. She does not know when the police arrived. FrancesLee Marie Frank Ms. Frank has owned GTC for 5½ or 6 years. Ms. Frank has taken steps to avoid overserving alcohol to any GTC patron. She has hired many more people to work, including 3 security persons on Friday nights. GTC has a 200-person occupancy. Ms. Frank instructs her employees to talk to patrons continuously, to walk around and watch patrons, and to pay attention to how much alcohol is served to each patron. She requires her employees to participate in training provided by the Business Council for Alcohol Education, which the Department has approved. Ms. Frank goes off duty when Ms. Pomeroy comes on. She was not in GTC after 7:00 p.m. on January 5, 2001 and did not see Mr. Garner or Mr. Prue that night. CONCLUSIONS OF LAW The Department has jurisdiction to determine whether GTC violated applicable A.R.S. § 4-244(14).[2] The Department bears the burden of proof and must establish that GTC violated applicable statutes by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[5] In Arizona, it is unlawful: For a licensee . . . to serve, sell or furnish spirituous liquor to a disorderly or obviously intoxicated person, or for a licensee or employee of the licensee to allow or permit a disorderly or obviously intoxicated person to come into or remain on or about the premises, except that a licensee or an employee of the licensee may allow an obviously intoxicated person to remain on the premises for a period of time of not to exceed thirty minutes after the state of obvious intoxication is known or should be known to the licensee in order that a nonintoxicated person may transport the obviously intoxicated person from the premises.[6]

“‘[O]bviously intoxicated’ means inebriated to the extent that a person’s physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person.”[7] The Department argued at the hearing that the standard for obvious intoxication is purely objective and that knowledge of a person’s baseline, or condition while sober, is not required to gauge whether he is “obviously intoxicated.” Only a purely objective “reasonable person” standard is supported by the plain language of the statute.[8] But statutes should be given a sensible construction, taking into consideration “their language, context, subject matter and consequences.”[9] It would be nonsensical to penalize a licensee for serving a patron who had a physical condition that made him appear obviously intoxicated, even though the patron was not actually intoxicated at all. A licensee’s subjective knowledge of a patron’s usual demeanor may be relevant in the determination of whether the patron is actually or obviously intoxicated.[10] The standard for “obvious intoxication” is high: Impairment and lack of physical coordination may be obvious but not, respectively, substantial or significant.[11] Both parties’ witnesses testified credibly, though not consistently. Although Mr. Prue did not do GTC any favors by sticking his tongue out at the camera, the evidence, including the photograph, shows him to be an irreverent person with no great respect for authority. Most people would look intoxicated making such a face while simultaneously squinting at a flash bulb. The Administrative Law Judge’s resolution of inconsistent details in the witnesses’ testimony[12] does not resolve the main issue of whether Mr. Prue was obviously intoxicated on January 5, 2001. It appears that reasonable persons may differ on whether the signs of intoxicated noted in this case render a patron “obviously intoxicated.”[13] Because this record does not establish that Mr. Prue was or was not obviously intoxicated, the Department has not borne its burden and its Complaint should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Liquor Licenses and Control dismiss the Complaint in this matter against the Bar Spirituous Liquor License No. 06070600 issued to FrancesLee M. Frank, Agent Little Pats, Inc. dba Good Time Charlie’s. Done this day, May 29, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of May, 2001, to:

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

By ___________________________

----------------------- [1] The hearing included much discussion and testimony about whether events occurred at a certain “real time” or “bar time.” Unless otherwise noted, only “real times” are referenced in this recommended decision, either based on the witnesses’ direct testimony or the Administrative Law Judge’s inferences based thereon. [2] See A.R.S. § 4-210(E) and (F).

[3] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[5] Black’s Law Dictionary at page 1064 (6th ed. 1990).

[6] A.R.S. § 4-244(14).

[7] Id. [emphasis added].

[8] See, e.g., Mid Kansas Federal Savings and Loan Ass’n of Wichita v. Dynamic Development Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991) (“In applying a statute, . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”).

[9] Shaffer v. Arizona State Liquor Bd., 197 Ariz. 405, 408-09, 4 P.3d 460, 463-64 (App. 2000) (citations omitted). [10] Cf. Young v. DFW Corp., 184 Ariz. 187, 908 P.2d 4 (1995). There, the Court of Appeals, Division One held that a woman was not obviously intoxicated under A.R.S. § 4-244(14) in light of the following evidence:

[T]he employees and most of Jacobi’s co-workers at the office party testified that she had exhibited no obvious signs of intoxication such as staggering or slurred speech. In fact, one of her coworkers testified that even though he believed Jacobi was intoxicated because he knew her and she was acting out of character, he agreed that if had not known her, it was a “coin toss” as to whether she was “very, very social” or had “had a few drinks.” Likewise, the officers who investigated the accident testified that, other than a slight sway one of them noted, Jacobi did not display any obvious physical symptoms of intoxication despite her registering a .20 on the breathalyzer.

184 Ariz. at 189, 908 P.2d at 3. The subjective knowledge here was possessed by persons who knew the subject who were not employed by a licensee and had no legal duty to note signs of obvious intoxication.

[11] Here, the evidence shows that the most apparent signs of intoxication were Mr. Prue’s swaying and loud talking, which GTC’s employees testified evidenced his usual behavior and demeanor. In contrast to these arguable and subtle signs, the Texas Court of Appeals upheld a finding of obvious intoxication based on evidence of the following behavior:

[A]t least three witnesses testified that they were at Chequers the night of the accident. All confirmed that Jordan was at the bar drinking beer and shots of liquor. One witness stated that Jordan slipped off his chair, stumbled a little at the bar, that his speech was slurred and that he smelled of alcohol. Another witness testified that it was obvious to her that Jordan was intoxicated. Her male companion claimed, “This guy was so drunk he even asked me to dance.” . . . .

Fay Ray Corporation, dba Chequers v. Texas Alcoholic Beverage Comm’n, 959 S.W.2d 362 (Applicant. 1998). [12] For example, the evidence tends to show that Mr. Garner had seated himself in the back bar before Ms. Ulibarri served Mr. Prue the pitcher of beer and Budweiser Light, but does not tend to show that Ms. Ulibarri stood at Mr. Prue’s table for two minutes while he attempted to sort out payment.

[13] GTC cited Shaffer to support its argument that evidence that shows a patron has slurred speech, musses a friend’s hair, and has “a vague difficulty in walking” does not “evidence either ‘significantly uncoordinated physical action or significant physical dysfunction’ within the meaning of the statute.” 197 Ariz. at 407 n.1, 4 P.3d at 462 n.1. This remark only noted the superior court’s ruling, which apparently was not appealed because the superior court upheld revocation of the license on other grounds. Although the footnote is not even dicta, it does illustrate that reasonable minds may differ, even based on the same evidence.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826