ALJDEC decisions subject to certification as final

07A-0027-LIQ · Liquor Licenses and Control · 2007-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2007 APPEARANCES: Assistant Attorney General Camila Alarcon for the Arizona Department of Liquor Licenses and Control; Manuel Herrera-Villa for MJHV’s Cantina Inc/El Ranchito Sports Bar ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT This matter is a disciplinary action being taken by the Arizona Department of Liquor Licenses and Control (“Department”) against El Ranchito Sports Bar (“Licensee or the “Bar”), located at 6042 W. Bethany Home Road Glendale, AZ 85301 ( The Licensee holds Spirituous Liquor License No. 07070589 and Manuel Herrera-Villa (“Mr. Villa”), is the Licensee’s agent. On May 21, 2007, the Department issued a Complaint and Notice of Hearing. The Complaint alleged 2 counts: a. Count 1: “On or about January 20, 2007, at approximately 7:10 p.m., Maria Sarabia-Leyva [Maria Leyva], an employee of the licensee, failed to require CUB [covert underage buyer] Yuliana Sobarzo to exhibit a written instrument of identification when she ordered, procured, attempted to purchase, otherwise procured, attempted to procure the serving or delivery of spirituous liquor, and Maria Sarabia-Leyva had reason to question the age of CUB Yuliana Sobarzo, providing grounds for disciplinary action pursuant to A.R.S. § 4-241(A).” b. Count 2: “On or about January 20, 2007, at approximately 7:10 p.m., Maria Sarabia-Leyva, an employee of the licensee, sold, furnished, caused to be furnished, or gave spirituous liquor to CUB Yuliana Sobarzo, a person under the age of 21 years, in violation of A.R.S. § 4-244(9).” In support of the above-mentioned allegation, the Department relied upon the testimony of Phoenix Police Detective Thomas Tardy (“Detective Tardy”) and Cadet Yuliana Sobarzo (“Cadet Sobarzo”) and two Phoenix Police Department investigative reports that they authored. Detective Tardy is a member of the Phoenix Police Youth Alcohol Squad. As part of his duties Detective Tardy investigates allegations related to underage purchases or consumption of alcohol. 6. Detective Tardy was conducting a covert operation at the Bar. This operation was conducted by the Phoenix Police Department pursuant to a request made by the Glendale Police Department based upon observations made by Glendale police officers that the Bar was selling liquor to persons under the legal drinking age. The Glendale Police also had information obtained from persons under 21 years of age involved in driving under the influence of alcohol who stated that they had consumed spirituous liquor at the Bar. 7. On January 20, 2007, prior to conducting the CUB operation at the Bar, while on duty, Detective Tardy took a photograph of Cadet Sobarzo, a color copy of which was entered into evidence as Exhibit 2. 8. On the date of the CUB operation at the Bar, Cadet Sobarzo was 19 years old. At the time of the hearing, Cadet Sobarzo was 20 years of age. 9. Detective Tardy and Glendale Police Officer Dan Grisim (“Officer Grisim”) drove to the Bar where they met Cadet Sobarzo. Detective Tardy gave Cadet Sobarzo money to purchase an alcoholic beverage. Cadet Sobarzo did not have any identification with her when she entered the Bar. Detective Tardy and Officer Grisim stayed in the car and observed Cadet Sobarzo entering the Bar. From their location, they could not see into the Bar. 10. Detective Tardy testified that the reason they did not park in the parking lot of the Bar was that the neighborhood is Hispanic and, as he is a Caucasian, he wanted to remain inconspicuous. 11. Cadet Sobarzo testified that she entered the Bar and sat down at a table. When approached by a waitress, who was identified as Maria Leyva, she ordered a small Corona and paid using the money that Detective Tardy gave her. 12. Cadet Sobarzo testified that she had not been asked for any identification when she ordered the Corona. Upon receiving the Corona, Cadet Sobarzo asked for a “to go cup” and Ms. Leyva told her that security at the Bar was not there and she could leave the Bar with the beer. 13. Cadet Sobarzo exited the Bar and presented the bottle of beer and change to Detective Tardy. Cadet Sobarzo informed Detective Tardy as to what had transpired in the Bar relating to the purchase of the Corona. Detective Tardy and Officer Grisim then went into the Bar. Detective Tardy showed Maria Leyva, the photograph of Cadet Sobarzo and asked if she recognized the person in the photograph. 14. Detective Tardy testified that Ms. Leyva did not recognize Cadet Sobarzo from the photograph and denied selling her alcohol. 15. Detective Tardy’s report of the CUB at issue (Exhibit 1) states that Cadet Sobarzo ordered a 12 ounce Corona that he received the bottle of Corona from her and emptied it.[1] 16. Ms. Leyva testified: a. On the night in question she noticed a young lady come into the Bar talking on a cell phone. The lady looked like she was waiting for or looking for someone. b. After some time had passed, she approached the lady and asked if she wanted a drink. The young lady ordered a small Corona. At that time she did not ask the lady for identification because she seemed older than the legal drinking age. It did not seem to her to be a “big deal” to sell alcohol to the young lady. c. Afterwards, a police officer walked in and told her that she had sold alcohol to a minor. She was shown a picture and asked if she knew the person in the picture, to which replied “no”. She was then told that she had sold the lady in the picture alcohol and that the lady was under the legal drinking age. It was then that she remembered selling beer to a young lady who had walked in that seemed old enough to be served alcohol but she believes the person in the photograph was not the same person to whom she sold a small Corona. d. She admitted to the police officer that when she sold beer to the young lady in the Bar, she did not ask for identification because she thought the person was old enough to purchase the beer. e. The lady in the photograph (Exhibit 2) is wearing a black leather jacket and black blouse. The young lady who had purchased the Corona from her was not wearing a leather jacket and was wearing a light colored blouse. 17. Contrary to Ms. Leyva’s testimony, both Detective Tardy and Cadet Sobarzo testified that the clothes depicted in Exhibit 2 are the clothes that Cadet Sobarzo wore prior to entering the Bar on the night in question. They also testified that the photograph accurately depicted the appearance of Cadet Sobarzo prior to her entering the Bar. According to Detective Tardy and Cadet Sobarzo, on the night in question, Cadet Sobarzo was wearing clothes similar to what a 19 year old would wear and she looked under the age of 21. 18. Based on the copy of the photograph taken of Cadet Sobarzo on the date of the CUB operation, as well as observing her appearance on the date of the hearing, and the description of her appearance on January 20, 2007 by Detective Tardy and Cadet Sobarzo, the Administrative Law Judge finds that Cadet Sobarzo appeared to look 19 years of age or younger on January 20, 2007, and Ms. Leyva had reason to question Cadet Sobarzo’s age. 19. At hearing, the Department requested a civil penalty of $3,000.00 be assessed against the Licensee and that the Licensee’s employees who handle spirituous liquor undergo alcohol training. The Department’s counsel mentioned in Closing Argument that in another matter the Licensee was required to have its employees undergo alcohol training and if that has occurred, there would be no reason to have them undergo such training again. Despite such reference, there was no evidence presented as to that specific matter. CONCLUSIONS OF LAW This matter is a disciplinary matter and, as such, the Department bears the burden of proving by a preponderance of the evidence that the alleged violations of A.R.S. § 4-244(9) or §4-241(A) occurred. See A.R.S. § 41- 1092.07(G)(3) 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 Licensee argued that Detective Tardy testified that the CUB had informed him that she had purchased a large Corona yet at hearing, the CUB testified she purchased a small Corona. According to the Licensee, that discrepancy raises doubt as to the credibility of the Department’s witnesses and their account as to what transpired during the CUB operation conducted at the Bar on January 20, 2007. 4. In contrast to the Licensee’s assertions, the Department presented credible evidence as to the appearance of Cadet Sobarzo on the night of the CUB operation in question and of the transaction that transpired between Ms. Leyva and Cadet Sobarzo. The Administrative law Judge concludes that Ms. Leyva’s memory as to the appearance of the young lady to whom she sold a small Corona on January 20, 2007, to be faulty and the more compelling credible evidence as to what occurred at the Bar on the evening of January 20, 2007, was that presented by the Department. 5. The Department met its burden of proving by a preponderance of evidence that on January 20, 2007, Ms. Leyva, an employee of the Licensee, failed to require Cadet Sobrazo, to exhibit a written instrument of identification when Cadet Sobarzo purchased beer, providing grounds for discipline under A.R.S. Section 4-241(A). 6. The Department met its burden of proving by a preponderance of evidence that on January 20, 2007, Ms. Leyva, an employee of the Licensee, sold beer to Cadet Sobarzo, a person under the age of 21 years, in violation of A.R.S. Section 4-244(9). 7. The preponderance of evidence showed that the Licensee committed the two alleged violations of the State’s Liquor Laws. Therefore, discipline against the Licensee is warranted. Under the circumstances because there was no evidence presented that showed the Licensee has had any prior liquor violations, the Administrative Law Judge concludes that a penalty in the sum of $2,000.00 ($1,000.00 for each violation) is reasonable and appropriate to impose. ORDER Based on the above, within 45 days of the effective date of the Order entered in this matter, the Licensee shall pay to the Department a civil penalty in the sum of $2,000.00. In addition, the Licensee shall, within days of the Order entered in this matter, have all of its employees who handle or serve spirituous liquor attend an alcohol management training class approved by the Department and present to the Department proof that such training has been accomplished. Done this day, August 29, 2007.

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

By ___________________________

----------------------- [1] This is different than Cadet Sobarzo’s testimony that she ordered a small Corona. This discrepancy does not affect the credibility of the testimony presented by the Department’s witnesses that beer was purchased by Cadet Sobarzo at the Bar on January 20, 2007, without her having identification, without being asked for identification, and without any employee of the License questioning Cadet Sobarzo’s age.

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