ALJDEC decisions subject to certification as final

07A-0026-LIQ · Liquor Licenses and Control · 2007-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2007 at 9:00 a.m. APPEARANCES: The Arizona Department of Liquor Licenses and Control appeared through Camila Alarcon, Esq., Assistant Attorney General; Licensee Metro Sports Bar and Restaurant, Inc./Metro Sports Bar and Billiards appeared through Douglas C. Erickson, Esq., Maynard, Cronin, Erickson, Curran & Sparks, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence on the issue of whether Metro Sports Bar and Billiards, a licensee of the Arizona Department of Liquor Licenses and Control (“the Department”), violated A.R.S. § 4-210(A)(10) by failing to take reasonable steps to protect the safety of a customer or violated A.R.S. § 4-244(36) and A.A.C. R19-1-234 by failing to report an act of violence. Based on this evidence, the Administrative Law Judge recommends the following Findings of Facts, Conclusions of Law, and Recommended Order to the Director of the Department. FINDINGS OF FACT Background and Procedure The Department issued Bar Spirituous Liquor License No. 06070202 to Metro Sports Bar and Restaurant, Inc., the corporate owner of Metro Sports Bar and Billiards (“Metro”), located at 10402 N. Black Canyon Hwy. in Phoenix, Arizona. Alfonso Antonio Larriva is the president and sole shareholder of Metro Sports Bar and Restaurant, Inc. On June 13, 2007, the Department issued the Complaint and Notice of Hearing in this matter, which charged Metro with commission of the following violations of Arizona liquor law: Count 1 On or about January 20, 2007, at approximately 1:45 a.m., the licensee and/or employees of the licensee failed to take reasonable steps to protect the safety of a customer of the licensee entering, leaving or remaining on the licensed premises when the licensee and/or employees of the licensee knew or reasonably should have known the danger to such person, in that the on-duty bouncer, Mike Wall (aka Q-Ball or 8-Ball), punched Joshua Vogt in the face causing visible injury, in violation of A.R.S. Section 4-210.A.10.

Count 2 On or about January 20, 2007, at approximately 1:45 a.m., an act of violence occurred on the licensed premises between Joshua Vogt and Mike Wall (aka Q-Ball or 8-Ball), in which the licensee failed to make a detailed, written report of such act of violence to the Department or to a law enforcement agency within seven (7) days of the act of violence, in violation of A.R.S. Section 4- 244(36) and A.A.C. R19-1-234.

Metro answered the complaint, denying any violations. A hearing was held, at which both parties were represented by counsel. The Department had admitted into evidence three exhibits and presented the testimony of Mr. Vogt, the patron who was hit in the face by the licensee’s bouncer, Phoenix Police Department Officer Abigail Searles, Badge # 8447, who responded to Mr. Vogt’s complaint, and its investigator Mary Maldonado. The licensee had admitted into evidence three exhibits and presented the testimony of bouncer Michael G. Wall (aka 8-Ball) and owner Mr. Larriva. Evidence at the Hearing Alleged Victim Mr. Vogt Mr. Vogt currently lives in Scottsdale. On January 20, 2007, he was 25 years old. He worked on contract as an assistant administrator at Wells Fargo. Mr. Vogt first started going to Metro when lived in the apartments across the street. He celebrated his 21st birthday at Metro. With the exception of 16 months, when he lived in Florida, he has gone to Metro once or twice a week ever since. Mr. Vogt testified that he was friendly with the people who used to work at Metro. They gave him shots on his birthday. Mr. Vogt lived in Florida from June 2005 to December 2006. On January 19, 2007, Mr. Vogt and his friends Nick Sloan and Jeremy Albert went to Metro. They arrived at approximately 9:30 p.m. Mr. Vogt at the time was 5’10” and weighed approximately 230 pounds. Nick Sloan was 6’6” and weighed 255 pounds. Jeremy Albert was 6’4” or 6’5’ and weighed 230 pounds. Mr. Vogt testified that, during the approximately 4½ hours he and his friends were at Metro, he drank approximately 4½ or 5 “7&7” drinks, which is Seagram’s 7 whisky and 7-up, and one beer from the pitcher that he or his friends had ordered. A woman named Lindsey was drinking with Mr. Vogt and his two friends. She may have been a waitress at Metro who had finished her shift. Mr. Vogt testified that he saw a waitress/bartender named Berta or Roberta sit down with another group of customers. He assumed that Berta had finished her shift. The bar was still “packed.” Mr. Vogt testified that, at approximately 1:45 a.m. on January 20, 2007, Berta got up, walked over to Mr. Vogt and his friends’ table, grabbed Nick’s beer, and said, “You need to get the hell out of here.” Mr. Vogt denied that he or any of his friends had been cut off or had any previous negative interaction with Berta or the other employees at Metro. Mr. Vogt testified that his friend Nick then asked Berta, “What is going on? Why are you being a bitch?” Mr. Vogt testified that he had heard rumors that Berta and 8-Ball, one of the bouncers at Metro, were involved romantically. Mr. Vogt testified that, after Nick called Berta a “bitch,” she called 8- Ball over. Mr. Vogt testified that 8-Ball then asked him, “Why are you calling my girl a bitch? You need to get the hell out of here.” Mr. Vogt testified that he very calmly responded, “I didn’t. Dude, stop being such a douche; we’ll finish our beers and leave.” Mr. Vogt testified that he turned on his barstool to look at Nick and, while he was looking away, got hit on the left side of his face. Mr. Vogt testified that he blacked out for a moment. When he came to, he was laying on the floor. He heard Nick screaming, “Why did you do that?” and 8-Ball answering, “He called me a douche. Do you know what that is? It’s something that a woman uses to clean herself.” Mr. Vogt testified that a white bouncer came over. The white bouncer, 8- Ball, and Berta were all taking swings at Nick. Nick got backed up to a table. Eventually, he, Jeremy, and Nick got “shuffled outside.” He asked to speak to the manager, but was told none was on duty. Mr. Vogt testified that they then got into their car and drove away from Metro. They called police, who told them to go to a safe location, while en route to Nick’s house in Peoria. Officers of the Phoenix Police Department interviewed Messrs. Vogt and his friends Nick and Jeremy at Nick’s house in Peoria. The Department had admitted into evidence photographs of Mr. Vogt that a Phoenix P.D. officer had taken. The photographs show the area under Mr. Vogt’s left eye was swollen and bruised and blood was trickling from a cut under his left eye, which looked like it had been split. Mr. Vogt testified that the female police officer who interviewed him advised him to contact Metro and tell management what had happened. He called and left a message with an older lady, who said she was the cook/manager. A few days later, a man named John called back, identified himself as a manager, and said he would look into the incident. Mr. Vogt testified that John was very apologetic, but never called him again. On cross-examination, Mr. Vogt denied that he ever went to bars more than once or twice a week. He and his friends were professionals. Before that, they were going to college; “You cannot graduate from college if you are partying on a daily basis.” Mr. Vogt admitted that he had entered some blogs at his website. He admitted that he had most likely written the most recently posted blog, dated March 19, 2003, which stated among other things that he had moved to Phoenix “with some badass dudes to go to High Tech Institute” and that he had “[p]artied everynight [sic] for months, all the days seemed to blend together.” Mr. Vogt denied that this entry was factual or meant he got drunk every night; he just wanted his friends in California to think, “Sweet – Josh is having a good time.” Alleged Assailant Mr. Wall Mr. Wall is known as “8-Ball.” He is Black, 5’8” tall, and weighs 230 lbs. Mr. Wall has been employed at Metro as a bouncer for 3 years. Except for this incident, he has never hit a customer or been involved in a fight with a customer. He may have escorted a customer out, “arm-in-arm,” but has had no other confrontations. Mr. Wall admitted that, on January 20, 2007, he had struck Mr. Vogt in the face. Mr. Wall testified that, before the incident, one of the bartenders had said that a guy was “disrespecting” the cocktail waitress. Mr. Wall testified that the bartender pointed out three big guys sitting at a table as the disrespectful patrons. The waitress told him that she had cut the guys off because they were drinking “too rapidly.” She said one of the guys had then called her an “asshole.” Mr. Wall testified that he approached the table and told the guys, “You have to respect the workers. The bar has a right to refuse service.” Mr. Wall testified that, at first, he thought it would be okay. Then one of the guys, whom he identified at the hearing as Mr. Vogt, started getting belligerent and saying, “She’s an asshole,” referring to the waitress. Mr. Wall testified that he then told the men it was time to leave. Mr. Wall explained that Metro’s policy is to allow customers who have been cut off up to a half hour to drink sodas or water but, if they get disrespectful, they are asked to leave immediately. Mr. Wall testified that, after he told Mr. Vogt to leave, Mr. Vogt called him a “douche bag” and the “N-word.” Mr. Wall testified that he again told the three men to leave immediately. Mr. Wall testified that, after he told the three men to leave the second time, the waitress started taking a beer mug from their table. One of the men said, “Hey, you bitch.” Mr. Wall testified that he then got between the waitress and the men. Mr. Wall testified that, after he got between the men at the table and the waitress, Mr. Vogt stood up quickly and cocked back his right arm and made a fist. Mr. Wall testified that, after their “battle of words,” when Mr. Vogt stood up and cocked back his fist, Mr. Wall felt he was at risk for being hit by Mr. Vogt. To defend himself and the waitress, he punched Mr. Vogt. After Mr. Vogt fell to the floor, Mr. Wall did not follow up. Mr. Wall testified that Mr. Vogt was bigger than he and was with two even larger friends. But he would have done the same thing if he felt that someone who weighed 120 pounds was going to hit him. Mr. Wall testified that he had written a statement describing the incident for the manager of Metro. Mr. Wall testified that Marilyn was the manager who was present at Metro at the time of the incident. She was not out on the floor. Owner Mr. Larriva Mr. Larriva testified that, the day after the incident, the police had called Becky Cardinale, the manager of the bar, to enlist her help in trying to track down employees who had witnessed the incident. In addition, Mr. Vogt had threatened to sue Metro. Mr. Larriva testified that there is no manager named “John” who worked at Metro. Mr. Larriva had admitted into evidence the hand-written statements of five employees who were working at Metro, including Mr. Wall, when the incident occurred. All of the statements were generally consistent with Mr. Wall’s hearing testimony. Mr. Larriva testified that these statements had been provided to the police and to the Department. Mr. Larriva testified that management at Metro had “ongoing contact” with the police in the two or three days after the incident. Because Mr. Vogt had already made a report, the police would not open up a new incident report. Mr. Larriva testified that a licensee must report an incident of violence to the Department or to the police within seven days. Since the incident had been reported to the police, he believes that Metro complied with applicable statute and regulation. Officer Searles According to Phoenix P.D. report number DR 2007 70130545, which was admitted into evidence and authenticated by Officer Searles, Mr. Vogt’s call was received at 2:44 a.m. and officers arrived at Nick’s house at 2:52 a.m. Officer Searles and Officer George Ybarra of the Phoenix Police Department responded to Mr. Vogt’s call. Officer Ybarra photographed Mr. Vogt’s injuries. Officer Searles’ report included summaries of her interviews of Mr. Vogt and his two friends, Nick Sloan and Jeremy Albert. Their accounts were generally consistent with Mr. Vogt’s hearing testimony. Mr. Vogt wanted to press assault charges against Mr. Wall. Officer Searles reported that she could not see any bruising or swelling on Mr. Sloan’s face, but that there did appear to be “some redness on the right side of his face.” Mr. Sloan did not want to press charges. Officer Searles testified that she interviewed the three witnesses separately. They did not hear each other’s interviews. Officer Searles testified that owners or staffs of bars have the right to ask customers to leave. If the customers refuse to leave, they are trespassing. Officer Searles’ report did not say how much Mr. Vogt had told her he had to drink at Metro. She testified at the hearing that her recollection was that he had told her he had three or four beers. He had told her that he was at the bar with friends, not to get drunk. Neither Officer Searles’ report, Detective Terri Duckworth’s supplemental report, nor any other documents included in the City of Phoenix Police Department Report mentioned any contact with management or anyone else at Metro. A stamp on the first page of the report showed that it had been provided to the Department on January 24, 2007. Investigator Maldonado Investigator Maldonado admitted that she had not investigated this matter. The investigator who had investigated the matter and had prepared a report, Tony Cuevas, had retired. Ms. Maldonado testified that the Department’s procedure requires a licensee to report an act of violence in writing to the department or by calling the local police department within seven days. She has reviewed the Department’s records and has found no such report. Mr. Cuevas’ report noted that, on February 8, 2007, he received a copy of the City of Phoenix Police Department’s report of the January 20, 2007 incident. Mr. Cuevas interviewed Mr. Vogt and Mr. Larriva on February 13, 2007. Mr. Vogt’s account was consistent with his hearing testimony; Mr. Larriva’s account was consistent with Mr. Wall’s hearing testimony. Mr. Cuevas’ report indicates that, on February 14, 2007, he received via facsimile copies of Metro employees’ statements. APPLICABLE LAW 1. A.R.S. § 4-210(A)(10) sets forth the following among the grounds for revocation, suspension, and refusal to renew a license: The licensee fails to take reasonable steps to protect the safety of a customer of the licensee entering, leaving or remaining on the licensed premises when the licensee knew or reasonably should have known of the danger to such person, or the licensee fails to take reasonable steps to intervene by notifying law enforcement officials or otherwise to prevent or break up an act of violence or an altercation occurring on the licensed premises or immediately adjacent to the premises when the licensee knew or reasonably should have known of such acts of violence or altercations.

2. A.R.S. § 4-244(36) includes among other enumerated unlawful acts the following: “For a licensee to fail to report an occurrence of an act of violence to either the department or a law enforcement agency.” 3. A.A.C. R19-1-234 provides in relevant part: A licensee upon whose licensed premises an act of violence occurs shall make a detailed, written report of such act of violence to be hand delivered or deposited in the U.S. Mail within 7 days of the act of violence to the Department, unless the act of violence was previously reported to a law enforcement agency pursuant to A.R.S. § 4-244(37) [sic] . . . . CONCLUSIONS OF LAW The Department has jurisdiction to determine whether Metro violated A.R.S. §§ 4-210(A)(10) and 4-244(36) and A.A.C. R19-1-234.[1] The Department bears the burden of proof and must establish that Metro violated applicable statutes and regulation by a preponderance of the evidence.[2] Metro bears the burden of proof to establish affirmative defenses, such as self-defense, by the same evidentiary standard.[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 “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Whether Metro Established Self-Defense Mr. Wall admitted that he punched Mr. Vogt. Therefore, an assault occurred. Metro failed to protect Mr. Vogt’s safety unless Metro established that Mr. Wall acted in self-defense. “[A] person is justified in . . . using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other’s . . . attempted use of unlawful physical force.”[6] But the “use of physical force against another is not justified . . . [i]n response to verbal provocation.”[7] If Mr. Wall had punched Mr. Vogt merely because Mr. Vogt had called Mr. Wall or the waitress obscene names, as Mr. Vogt testified, Mr. Wall’s punch would not have been self-defense. But if Mr. Vogt had first stood up and cocked his fist back, as Mr. Wall testified, a reasonable person would have believed that it was necessary to protect himself from Mr. Vogt’s threatened blow. Mr. Wall would have been justified in striking the first (and only) blow in self-defense. Mr. Vogt admitted that he and his friend Nick had called the waitress and Mr. Wall obscene names. The linchpin of Mr. Vogt’s version is that, before any names were called, the waitress precipitated the confrontation by coming over to Mr. Vogt and his friends’ table and, without any reason or provocation, had attempted to take away Nick’s beer. According to Mr. Vogt, the bouncer Mr. Wall had then come over to avenge the insult to the waitress, who was “rumored” to be his girlfriend, and had punched Mr. Vogt after being called a “douche.” Mr. Vogt’s version of order of the precipitating events that led Mr. Wall to punch him depends upon the unfounded and unexplained animus of the waitress. Accepting Mr. Vogt’s version of events also would require a conclusion that Mr. Wall was a hothead who was willing to risk his job through an act of misguided chivalry in defense of a waitress who went out of her way to insult patrons gratuitously. Mr. Wall’s professional demeanor at the hearing and three unblemished years of service at Metro do not support this conclusion. In contrast, Mr. Wall’s testimony that the waitress had declined to serve any more alcohol to Mr. Vogt and his friends because they were drinking “too rapidly” provides a credible motive for Mr. Vogt’s and his friend’s insults. Mr. Vogt admitted at the hearing that he had drunk at least five or as many as six drinks in the 4½ hours he was at Metro. Mr. Wall’s testimony that the waitress had attempted to remove the beer only after Mr. Vogt and his friends had called her and Mr. Wall obscene names and, as a result, Mr. Wall had twice told them to leave immediately is more credible than the gratuitous insult in Mr. Vogt’s version. Mr. Wall’s testimony that he only punched Mr. Vogt when the latter escalated the situation by attempting to strike Metro’s employees is also more credible than Mr. Vogt’s testimony that Mr. Wall had blind-sided him because Mr. Vogt called Mr. Wall a dirty name. Metro therefore has affirmatively established that it is more likely than not that Mr. Wall acted in self-defense when he punched Mr. Vogt. The Department therefore has not borne its burden to establish that Metro violated A.R.S. § 4-210(A)(10) in failing to protect Mr. Vogt. Whether the Department Established Failure to Report Metro admitted that it did not report the act of violence in writing to the Department or to the police within seven days of January 20, 2007. Instead, Metro claims that it complied with A.R.S. § 4-244(36) and A.A.C. R19-1-134 because it alleges that it contacted the Phoenix P.D. and provided an oral report. But neither the original nor any supplement to Phoenix P.D. report number DR 2007 70130545 mentions any contact with anyone at Metro. Although the report is hearsay,[8] hearsay may be admitted in an administrative hearing[9] and may be relied upon if it is the kind of evidence that reasonable persons would rely upon in serious matters.[10] The police report is the kind of evidence upon which reasonable persons would rely in serious matters. If Metro management had contacted the police, the police report more likely than not would have summarized each contact. Metro’s witnesses do not dispute that they knew about the act of violence that occurred at approximately 1:45 a.m. on January 20, 2007. The Department has established through the police report, Investigator Maldonado’s testimony, and Investigator Cuevas’ report that Metro more likely than not did not report the incident of violence to the Department or to the police within seven days. The Department therefore has established that Metro violated both A.R.S. § 4-244(36) and A.A.C. R19-1-234. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Department impose a $200.00 civil penalty under A.R.S. § 4-210.01(A) against Bar Spirituous Liquor License No. 06070202 previously issued to Alfonso A. Larriva, Agent, Metro Sports Bar and Restaurant, Inc., Metro Sports Bar and Billiards, 10402 N. Black Canyon Hwy, Phoenix, AZ 85051, for the proven violations of A.R.S. § 4-244(36) and A.A.C. R19-1-234. Done this day, August 15, 2007.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of August, 2007, to: Arizona Department of Liquor Licenses and Control Jerry A. Oliver, Sr., Director 800 W. Washington St., 5th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] See A.R.S. § 4-210(E) and (F).

[2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

[3] See A.A.C. R2-19-119(B)(2).

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

[5] Black’s Law Dictionary at page 1220 (8th ed. 1999).

[6] A.R.S. § 13-404(A).

[7] A.R.S. § 13-404(B)(1).

[8] See Ariz. R. Evid. 801.

[9] See A.R.S. § 41-1092.07(F)(1). [10] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)).

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