ALJDEC decisions subject to certification as final

09A-0022-LIQ · Liquor Licenses and Control · 2010-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 3, 2010

APPEARANCES: Camila Alarcon, Assistant Attorney General representing the Department of Liquor Licenses and Control; Nick Alexander, Appellant’s Agent; Mario Trevizo and John Hanna, Department witnesses; Willy Ayoul, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a Complaint and Notice of Hearing, the Department of Liquor Licenses and Control has established that the Appellant violated Arizona liquor laws justifying the imposition of a civil penalty in the amount of $1,500.00. FINDINGS OF FACT 1. Appellant is a liquor licensee located in Prescott, Arizona. In the evening of January 22, 2009, two Prescott police officers, John Hanna and Keith Crabtree, and a Department of Liquor Licenses and Control (“Department”) investigator, Mario Trevizo, conducted a covert inspection of Appellant. They observed the establishment for a period of time in order to ensure compliance with Arizona liquor laws. 2. While watching the Appellant’s establishment from a location across the street, they saw a young-looking person leave with two dark- colored bottles in paper sacks. He entered a vehicle and left the area. The police officers and inspector followed the car and conducted a traffic stop. During the traffic stop, the young man admitted that he had purchased beer at the establishment and that he was 20 years old. He also acknowledged that he was not asked for identification, and he described the salesman who sold him the beer. The police officers and Department inspector confirmed the young man’s age with the State data- base and cited him for underage purchase of alcohol. 3. The police officers and inspector then went to the Appellant’s establishment and spoke to a salesman meeting the description given by the young man. They showed him a photo of the young man that was taken with the inspector’s mobile phone. The salesman recognized the young man. He acknowledged making the sale to him, and he said that he did not card the young man because he was a known customer whose identification had been provided in the past. At that point, the officers issued a criminal citation for sale of liquor to a minor. 4. On August 27, 2009, the Department issued Appellant a Complaint and Notice of Hearing alleging that Appellant violated Arizona liquor laws during the above-described incident. The Complaint and Notice of Hearing notified the Appellant that disciplinary action could be taken against the Appellant as a result of the hearing. 5. At the hearing, the Department offered evidence establishing the facts as set forth above. The Appellant’s Agent argued that the incident was a case of mistaken identity because the worker who admitted selling the liquor later stated in court that he thought the photo on the mobile phone was someone else. The case had been dismissed by the criminal court. The Agent, who was not present during the incident, stated that the employee later stated that he did not sell the young man any beer. He argued that the young man was not brought back to the establishment to identify the salesman. He argued that the police officers and investigator could not have seen the young man very well when he was at the store because it was dark at the time. He noted that the investigator had used binoculars to watch the young man, so it was reasonable to conclude that the investigator was posted far from the establishment, making it more likely that they did not correctly identify the customer. He also argued that the young man may have admitted buying the beer because he purchased it somewhere else and, perhaps, had only purchased iced tea from the Appellant. He argued that the investigator could not have been sure that the bags the young man carried were beer considering the distance, the darkness, and the paper bags they were in. 6. The Department argued that the weight of the evidence established that the Appellant was responsible for two violations of the applicable Arizona liquor laws and recommended that a civil penalty of $1,500 be assessed against the Appellant’s license. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Director of the Arizona Department of Liquor Licenses and Controls who may require that the licensee or other person attend a training program by the Department as well as suspend, revoke, deny or refuse to renew a license and/or impose a civil penalty of $200 to $3,000 for each of the violations proscribed by A.R.S. § 4-210. A.R.S. §§ 4-210 and 4-210.01. 2. A.R.S. § 4-210(A)(9) provides that disciplinary action may be taken if the licensee violates or fails to comply with that title or any rule adopted pursuant to that title or any liquor law of Arizona or of any other state. 3. Pursuant to A.R.S. § 4-241(A), a licensee is required to demand and examine identification from a customer attempting to purchase liquor if anyone has reason to question that the customer is under the legal drinking age. 4. Pursuant to A.R.S. § 4-244(9), it is unlawful to sell liquor to someone who is under the legal drinking age. 5. In this case, the Department has established that the licensee violated A.R.S. § 4-244(9) because the investigation proceeded in a manner that was most likely to correctly identify the Appellant’s customer, the customer admitted purchasing liquor from the Appellant, and the salesman acknowledged the sale at the time. Appellant’s arguments for mistaken identity did not hold up to logic, and Appellant offered no independent evidence to establish that the young man did not purchase alcohol from the Appellant’s establishment. The Department also established that the licensee violation A.R.S. § 4-241(A) because the customer was a young looking man, and a reasonable person would have questioned whether he was under the legal drinking age, and the salesman and the customer both acknowledged that his identification was not demanded before the sale was made. 6. In light of the above circumstances, the Department’s proposed $1,500 civil penalty was reasonable. Therefore, it must be recommended that Appellant’s liquor license be disciplined by the imposition of a $1,500 civil penalty. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Appellant be found to have violated A.R.S. §§ 4-241(A) and 4-244(9), and that the Department impose a civil penalty against it in the amount of $1,500.00. Done this day, March 10, 2010

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jerry Oliver, Director Arizona Department of Liquor Licenses and Control -----------------------

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