ALJDEC decisions subject to certification as final

08A-0025-LIQ · Liquor Licenses and Control · 2008-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2008 at 1:30 p.m. APPEARANCES: The Arizona Department of Liquor Licenses and Control appeared through Camila Alarcon, Esq., Assistant Attorney General; Licensee Devils Martini appeared through Harvey M. Yee, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Department of Liquor Licenses and Control (“the Department”) issued Bar Spirituous Liquor License No. 06070513 to Richard G. Geddes, Agent for Aurora Restaurant LLC/Devils Martini (“Devils Martini”). On April 28, 2008, the Department issued the Complaint and Notice of Hearing in this matter, which charged Devils Martini with commission of the following statutory violations: Count 1 On or about February 2, 2008, at approximately 11:00 p.m., Kelly O’Connor, an employee of the licensee, allowed Jessica Holden, a person under the legal drinking age, to remain in an area on the licensed premises during those hours in which the primary use was the sale, dispensing or consumption of alcoholic beverages after Kelly O’Connor knew or should have known that Jessica Holden was under the legal drinking age, in violation of A.R.S. Section 4-244(22).

Count 2 On or about February 2, 2008, at approximately 11:00 p.m., Kelly O’Connor, an employee of the licensee, allowed Britan Muhl, a person under the legal drinking age, to remain in an area on the licensed premises during those hours in which the primary use was the sale, dispensing or consumption of alcoholic beverages after Kelly O’Connor knew or should have known that Britan Muhl was under the legal drinking age, in violation of A.R.S. Section 4-244(22).

Count 3 On or about February 2, 2008, at approximately 11:00 p.m., Kelly O’Connor, an employee of the licensee, allowed Christina Bertrand, a person under the legal drinking age, to remain in an area on the licensed premises during those hours in which the primary use was the sale, dispensing or consumption of alcoholic beverages after Kelly O’Connor knew or should have known that Christina Bertrand was under the legal drinking age, in violation of A.R.S. Section 4-244(22).

A hearing was held in the Office of Administrative Hearings under A.R.S. § 41-1092.05(A). The Department and Devils Martini both appeared through counsel. The Department offered into evidence five exhibits and presented the testimony of Det. Craig Miller and Off. Chad Chesley, who had investigated the incidents, and Christina Bertrand and Britan Muhl. Hearing Evidence Det. Miller and Off. Chesley were on duty the night of February 2, 2008, a Saturday, performing routine inspections at liquor establishments in Scottsdale. They were working with four other officers from the City Mesa Police Department. At approximately 2200 hours, Det. Miller and Off. Chesley were standing outside, in front of Devils Martini. They observed three young-looking women present identification to the employee at the door, who was later identified as Kelly O’Connor, and enter Devils Martini. Det. Miller and Off. Chesley entered Devils Martini. Inside, it was dark and crowded. No food was being served. Most patrons were either drinking or dancing. The bartenders and waitresses were busy. After about twelve minutes, Det. Miller and Off. Chesley located the three young women, seated at a small table with several men, who appeared older. None of the three young women were drinking alcoholic beverages. Det. Miller and Off. Chesley identified themselves to the three young women as police officers and requested that they provide identification. Each of the three young women presented photographic identification that apparently had been validly issued to someone else, as follows: 9.1 The first young woman, who was later identified as Jessica Maria Holden, presented a Kansas driver’s license that had been issued to one Whitney Alexandria Haggerty. Ms. Haggerty had been born in May 1985, which made her 22 years old on February 2, 2008. She was 5’6” tall, weighed 120 pounds, and had brown eyes. 9.2 The second young woman, who was later identified as Britan Bowen Muhl, presented an Arizona driver’s license that had been issued to one Rachel Catherine Tikey. Ms. Tikey had been born in August 1986, which made her 21 years old on February 2, 2008. She was 5’8” tall, weighed 140 pounds, and had brown eyes and brown hair. 9.3 The third young woman, who was later identified as Christina Taylor Bertrand, presented an Arizona driver’s license that had been issued to one Susan Brooks Longley. Ms. Longley had been born in August 1985, which made her 22 years old February 2, 2008. She was 5’9” tall, weighed 135 pounds, and had brown eyes and brown hair. Because Det. Miller and Off. Chesley did not think that the three young women looked like the photographs on the identifications that they presented, they asked for secondary identification. Ms. Muhl presented an Ucard/VISA that had been issued to Rachel Tikey, which had expired on 07/06; Ms. Bertrand presented an undated University of Arizona Cat Card that had been issued to Susan Longley; Ms. Holden said that she did not have any secondary identification. Det. Miller informed the three young women that he did not believe that any of them were the subjects shown on the photographic identifications that they had presented. He and Off. Chesley would escort the three young women outside to ascertain their true identities and ages. Once outside, the three young women disclosed their true identities and vital information. Det. Miller cited each of the young women for violations of A.R.S. § 4-241(N). According to the citations, the three young women’s dates of birth and other identifying information was as follows: 12.1 Ms. Holden had been born in March 1989, which made her 18 years old on February 2, 2008. She was 5’5” tall, weighed 125 pounds, and had brown eyes and brown hair. 12.2 Ms. Muhl had been born in April 1989, which made her 18 years old on February 2, 2008. She was 5’9” tall, weighed 140 pounds, and had blue eyes and blonde hair. 12.3 Ms. Bertrand had been born in September 1988, which made her 19 years old on February 2, 2008. She was 5’8” tall, weighed 125 pounds, and had hazel eyes and brown hair. Photographs of the three young women were taken outside Devils Martini on February 2, 2008. Ms. Muhl testified in person at the hearing. In the Administrative Law Judge’s opinion, a comparison of the photographs on the identification that the three young woman originally gave Det. Miller and Off. Chesley reveals the following: 13.1 Ms. Holden had medium or dark brown hair and very striking large brown eyes. The photograph of Ms. Haggerty showed blonde hair and eyes at are noticeably dissimilar from Ms. Holden’s eyes. 13.2 Ms. Muhl had very blue eyes and light blonde hair, unlike the brown hair and brown eyes shown on Ms. Tikey’s photographic identification. In addition, Ms. Muhl’s nose, chin, and mouth are dissimilar from those on Ms. Tikey’s photographic identification. Ms. Muhl also parted her hair on the opposite side. 13.3 Ms. Bertrand’s nose is smaller than the nose on Ms. Longley’s photographic identification. Ms. Bertrand also parted her hair on the opposite side. Devils Martini did not keep a log of patrons’ identification or a copy of the identification that the three young women had presented to Mr. O’Connor to gain admittance to Devils Martini on February 2, 2008. Police officers did not search the three young women’s purses or persons on February 2, 2008. APPLICABLE LAW 1. A.R.S. § 4-101(16) provides that “‘[l]egal drinking age’ means the age of twenty-one years or older.” 2. If the Department finds after affording the licensee a hearing that it has violated applicable liquor laws, A.R.S. § 4-210.01(A) allows the Department to impose a civil penalty of not less than two hundred nor more than three thousand dollars for each violation. 3. A.R.S. § 4-241 provides in relevant part as follows: A. If a licensee, employee of the licensee or any other person questions or has reason to question that the person . . . entering a portion of the licensed premises when the primary use is the sale or service of spirituous liquor is under the legal drinking age, the licensee, employee of the licensee or other person shall do all of the following:

1. Demand identification from the person.

2. Examine the identification to determine that the identification reasonably appears to be a valid, unaltered identification that has not been defaced.

3. Examine the photograph in the identification and determine that the person reasonably appears to be the same person in the identification.

4. Determine that the date of birth in the identification indicates the person is not under the legal drinking age.

B. A licensee or an employee of the licensee who follows the procedures prescribed in subsection A of this section and who records and retains a record of the person’s identification on this particular visit is not inv violation of subsection J of this section or § 4-244, paragraph . . . 22. This defense applies to actions of the licensee and all employees of the licensee after the procedure has been employed during the particular visit to the licensed premises by the person. . . .

C. Proof that the licensee or employee followed the entire procedure prescribed in subsection A of this section but did not record and retain a record as prescribed in subsection B of this section is an affirmative defense to a . . . disciplinary action under . . . § 4-244, paragraph . . . 22 . . . . This defense applies to actions of the licensee and all employees of the licensee after the procedure has been employed during the particular visit to the licensed premises by the person.

4. A.R.S. § 4-244(22) provides that the following act is unlawful: For an on-sale retailer or employee to allow a person under the legal drinking age to remain in an area on the licensed premises during those hours in which its primary use is the sale, dispensing or consumption of alcoholic beverages after the licensee, or the licensee’s employees, know or should have known that the person is under the legal drinking age. . . . A licensee or an employee of a licensee may require a person who intends to enter a licensed premises . . . to exhibit a written instrument of identification that is acceptable under § 4-241 as a condition of entry. . . .

CONCLUSIONS OF LAW The Department has jurisdiction to determine whether GTC violated applicable A.R.S. § 4-244(14).[1] The Department bears the burden of proof and must establish that Devils Martini violated applicable statutes by a preponderance of the evidence.[2] Devils Martini bears the burden to establish affirmative defenses 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] The primary use of Devils Martini’s premises at 11:00 p.m. on February 2, 2008 was the sale and service of spirituous liquor. Mr. O’Connor had reason to question under A.R.S. § 4-241(A) whether Ms. Holden, Ms. Muhl, and Ms. Bertrand were under the legal drinking age when they attempted to enter Devils Martini on February 2, 2008. Devils Martini did not keep a log and therefore has not established the affirmative defense set forth in A.R.S. § 4-241(B). Mr. O’Connor did require and examine the identifications provided by Ms. Holden, Ms. Muhl, and Ms. Bertrand when they entered Devils Martini on February 2, 2008. Since Devils Martini did not keep a log under A.R.S. § 4- 241(B), it is impossible to know with absolute certainty that the three young women presented the same identifications that they later presented to Det. Miller and Off. Chesley. But such an inference is reasonable. The issue in this matter therefore is whether Ms. Holden, Ms. Muhl, and Ms. Bertrand “reasonably appear[ed]” under A.R.S. § 4-241(A)(3) to be the same persons whose photographs appeared on the identifications that Ms. Holden, Ms. Muhl, and Ms. Bertrand presented to Mr. O’Conner to gain entry to Devils Martini on February 2, 2008. This is the affirmative defense set forth in A.R.S. § 4-241(C). Ms. Holden’s, Ms. Muhl’s, and Ms. Bertrand’s height and weight were similar to those shown on the identifications that they presented to Mr. O’Connor to gain entry into Devils Martini on February 2, 2008. But, for the reasons stated in Finding of Fact 13.1 and 13.2, Devil’s Martini has not established that Ms. Holden and Ms. Muhl reasonably appeared to be the same persons as shown on the photographic identifications that they presented to gain entry. The Department therefore has established that Devils Martini violated A.R.S. § 4-244(22) in admitting Ms. Holden and Ms. Muhl on February 2, 2008. On contrast, although Ms. Bertrand’s eye color and facial features were distinguishable from those shown on the photographic identification that she presented to gain entry to Devils Martini, Ms. Bertrand looked very much like Ms. Longley. Devils Martini therefore has borne its burden to establish that Ms. Bertrand reasonably appeared to be the same person as shown on the identification she presented. The Department has not established that Devils Martini violated A.R.S. § 4-244(22) in admitting Ms. Bertrand on February 2, 2008. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Liquor Licenses and Control assess a $1,000.00 civil penalty for each established violation of A.R.S. § 4-244(22), in a total amount of $2,000.00, against Bar Spirituous Liquor License No. 06070513 that had previously been Richard G. Geddes, Agent for Aurora Restaurant LLC/Devils Martini. Done this day, June 26, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of June, 2008, to:

Arizona Department of Liquor Licenses and Control Jerry Oliver, 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; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] A.A.C. R2-19-119. [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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