ALJDEC decisions subject to certification as final

07A-0021-LIQ · Liquor Licenses and Control · 2007-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2007 APPEARANCES: Camila Alarcon, Assistant Attorney General, appeared for the Arizona Department of Liquor Licenses and Control John Schoenecker, Agent appeared for the Licensee-Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The evidence in the case is relatively straightforward. 2. On February 10, 2007, Department of Liquor Licenses and Control (Department) Investigator Keith Turner (Turner) was monitoring licensed businesses in the Wickenburg area at the request of local police. 3. Turner arrived at the licensed establishment at approximately 6:00 p.m. and entered what is described as the bar area. This area contains a traditional bar with approximately 10 bar stools, and several “high top” tables which also have barstools for seating. 4. The bar area can be used for dining but it is separated from the main dining area by a double door. Adjacent to the bar area is a game area which can be used for alcohol consumption or dining. On the night in question it was to be used for a poker tournament and not for dining. 5. Upon entering the bar area Turner noted approximately 15 people who were drinking what he believed to be alcohol.[1] 6. Turner looked into the dining area and saw approximately eight people eating. The gaming area had between 25 to 30 people. 7. Turner sat in the bar area and ordered a hamburger and an “alcoholic beverage”. 8. At approximately 7:30 p.m. a group of ten youthful people entered the bar area. Six or seven of them ordered mixed drinks or beer and brought the drinks back to one of the high top tables. 9. Turner contacted Wickenburg Police to check the ages of the group. 10. One of the ten persons was Amber Rae Guthrie Ward (Ward). She was 20 and a half years old and the only underage person in the group. 11. The Licensee’s bartender, Tarah Mayerhofer (Mayerhofer), testified she knew all the people in the group and that Ward was under 21 years of age. For reasons set forth in the following paragraph Mayerhofer believed Ward could remain in the bar area. 12. The agent on the license John Schoenecker (Schoenecker) and Mayerhofer testified the kitchen is open until 10:00 p.m., and until that time, the entire premises may be used for serving food.[2] After 10:00 p.m., the licensee has a doorman checking identification and underage persons are not permitted on the premises. Schoenecker and Mayerhofer testified they were under the impression that as a restaurant licensee, and as long as the kitchen was open, the entire premises were open to the public including persons under the legal drinking age. 13. According to Turner, he was the only one who ordered food while in the bar area. There were eight people eating in the dining area[3] at the end of Turner’s observation period. According to the Licensee, approximately 34 meals were served between 6:00 p.m. and 7:30 p.m.

Conclusions of Law The one count Complaint alleges violation of A.R.S. §4-244(22) in that the licensee allowed a person under the legal drinking age to remain in an area of the premises during those hours when it was used primarily for the sale and consumption of alcoholic beverages when the licensee knew or should have known the person was underage. 1. The State has the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.) and A.A.C. R2- 19-119. 2. A “preponderance of the 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, §5 (1960). It is “evidence which is of greater weight or more convincing than the 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.” Black’s Law Dictionary, 1182 (6th ed. 1990). 3. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the State has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. Although hearsay is admissible in administrative proceedings, the hearsay must be of a nature which would strongly indicate if not establish the information is accurate and reliable. 4. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 5. In this case the licensee was under the impression that a restaurant license covers the entire premises for the purpose of allowing underage persons anywhere on the premises as long as the kitchen is open. 6. The applicable statute looks to the use of “…an area of the licensed during those hours in which its primary use is…”. The language is clear. It is the primary use that the area is put to which determines if underage persons are allowed to remain irrespective of the whether food is served in other parts of the premises. This case is rather clear because the bar area is a separate and distinct area of the premises and it is plainly a bar area. Finally, Turner did not observe anyone else eating in the bar area for the period of nearly two hours[4]while the majority of persons were drinking alcoholic beverages. 7. The purpose of the statute is to attempt to ensure underage persons do not have ready access to alcoholic beverages while on the licensed premises. In this case up to seven of Ward’s friends had drinks which she could easily access. Arguably, if the group had gone into the dining room and ordered meals as well as drinks, Ward would have had the same access. Nevertheless, the statute differentiates between the two situations (between a primarily dining environment and a drinking environment). 8. The fact that everyone in the group was 21 except Ward, does not mean Ward was entitled to remain in the bar area while it was being used in the manner described in the facts of the case. 9. Understandably it places a burden on the licensee to attempt to consistently monitor an area of the premises to determine when its use is primarily for the consumption of alcoholic beverages. Since there are no hard and fast rules to determine this, good sense and discretion are called for both by a licensee and by enforcement officials. 10. The violation is proven by substantial evidence. The penalty should be mitigated because the statute can be honestly misconstrued and the licensee’s mistake is not based on negligence or willful disregard of the law. The licensee was honest and forthcoming with respect to the facts of the case and should not be unnecessarily sanctioned for what appears to have been an honest mistake.

Recommended Order It is recommended commencing the effective date of the Order in this case[5] or such other date as determined by the Director of the Department, Restaurant Spirituous Liquor License No. 12076472 shall be suspended until the licensee pays a civil penalty of Three Hundred ($300.00) Dollars. It is further recommended that if the licensee timely pays the civil penalty as required by the Order in this case, no suspension shall take place.

Done this day, July 26, 2007

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Jerry Oliver, Director Arizona Department of Liquor Licenses and Control 800 W. Washington St., 5th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Absent evidence to the contrary it is accepted that the majority of patrons who were drinking in the bar area, were in all likelihood drinking spirituous liquor. [2] The night in question was an exception for the gaming area which was being used for the poker tournament. [3] According to Turner these were not the same people as when he entered.

[4] At what point the bar area might become something other than an area primarily for the consumption of alcohol is not an issue in this hearing. [5] Forty (40) days from the date of the Order or from the certification of the decision by the Director of the Office of Administrative Hearings

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