ALJDEC decisions subject to certification as final

18A-0003-LIQ · Liquor Licenses and Control · 2019-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2019, and June 12-14, 2019, 9:00 AM until 5:00 PM.[1] APPEARANCES: Assistant Attorney General Michael Raine, Esq., appeared on behalf of the Arizona Department of Liquor Licenses and Control (“Department”) with Robert Randal, Dustin Lohse, and Arthur Zacharias as witnesses. Joel P. Borowiec, Esq. appeared on behalf of Doc Holliday’s Saloon LLC (“Respondent”)[2] with Christopher Dengler, Anthony Ramirez, Alayna Dalton, Eileen Graham-Dibble, Aaron Gaines, James Roberson, John Humphries, and Michael Carrafa as witnesses. Noreen Carrafa observed. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Department. FINDINGS OF FACT Background and Procedure 1. On April 27, 2012, the Department issued License No. 06020052 to Respondent.[3] The license is active. Respondent’s address of record for the license is 511 E Allen St., Tombstone, Arizona 85638. Noreen Carrafa is its Agent. 2. Doc Holliday’s Saloon is one of five thematic Old West bars located in the city’s historic district. The saloon boasts extended business hours, karaoke, billiards, and playing card tournaments for patrons to enjoy. 3. Administrative Notice is taken of Respondent’s prior license record as reflected on the Department’s public website on June 14, 2019. Such prior license record reflects that Respondent has been disciplined on eight prior occasions between June 20, 2012, and February 19, 2015, resulting in $7,500.00 in fines.[4] 4. On July 18, 2018, the Department issued a Complaint and Notice of Hearing to Respondent for alleged violations of Ariz. Admin. Code R19- 1-505 and Ariz. Rev. Stat. §§ 4-210(A)(2), 4-210(A)(9), 4-210(A)(10), 4-210(A)(14), 4-244(14), and 4-244(30). 5. The matter was referred to the Office of Administrative Hearings, an independent state agency, for evidentiary hearing September 04-05, 2018.[5] Pursuant to the Notice of Hearing the purpose of the hearing is to determine whether the Department should impose discipline against Respondent, including possible suspension or revocation of its license, and impose civil penalties up to $3,000.00 for each of the four alleged violations, where applicable. Hearing Evidence 6. The Department called Senior Department Detective Arthur Zacharias, Tombstone Marshal Robert Randal, and Tombstone Deputy Marshal Dustin Lohse as witnesses and submitted 7 exhibits. Respondent called Christopher Dengler, acquaintance to Michael Carrafa; Anthony Ramirez, bouncer; Alayna Dalton, bartender; Eileen Graham-Dibble, bartender; Aaron Gaines, bartender; James Roberson, patron; John Humphries, patron; and Noreen Carrafa’s husband Michael Carrafa, as witnesses and submitted 15 exhibits, including video surveillance footage. The Notice of Hearing and Respondent’s Answer were also admitted into the evidentiary record. 7. The Department presented evidence regarding four separate and distinct incidents that occurred at Respondent’s place of business between October 2017 and March 2018. The Department argued that Respondent’s license should be revoked based on these incidents. 8. Respondent counter-argued that revocation was not warranted, as no actionable violations occurred. Respondent also argued that it had been “singled out” for enforcement, as the Department does not uniformly enforce applicable rules and laws with other like- establishments in the Tombstone, Arizona area. The Roberson Shooting (Department Report #17-01857) 9. On October 12, 2017, patron James Roberson entered Respondent’s establishment and checked two guns with the bartender, Alayna Dalton. 10. Later that evening, an argument broke out at the other end of the bar from Mr. Roberson, involving his close friend Donny Estrada. Although told by staff not to engage in the argument, Mr. Roberson retrieved a knife from his pocket and approached the scuffle at other end of the bar. 11. By the time he arrived, however, Mr. Estrada had already been escorted off property by staff. Ms. Dalton instructed Mr. Roberson to put his knife away. He complied and placed the knife back in his pocket. 12. Once he returned to his seat Mr. Roberson was asked by staff to leave the premises. He agreed. 13. While Mr. Roberson settled his bar tab one of the men who were involved in the argument at the other end of the bar, Sean O’Malley, approached him, but security intervened. Mr. O’Malley returned to his seat. 14. On his way out, Mr. Roberson retrieved his checked guns. He placed one in his holster, and dropped a cylinder into the other pistol. Mr. Roberson did not hear the bartender or security guard call to him not to load his weapon in the bar, but Mr. O’Malley did. 15. Before Mr. Roberson could leave the premises, he was struck by Mr. O’Malley over the head with his own pistol just ten feet from the front door. Mr. O’Malley’s effort to disarm Mr. Roberson collapsed into a full out brawl once other patrons joined in beating Mr. Roberson. Mr. Roberson was knocked to the ground and pummeled repeatedly with punches and kicks. He was also struck by a chair. 16. Ms. Dalton called the Tombstone Marshal’s Office, who in turn contacted the Cochise County Sheriff’s Department for assistance. 17. From the ground, Mr. Roberson fired multiple shots from his gun. One of the bullets struck another patron in the leg. The injured patron had to be airlifted to a hospital in Tucson, Arizona. 18. When Deputy Lohse arrived there were about two dozen people outside of Respondent’s establishment and several patrons still inside the bar consuming and ordering alcohol.[6] 19. Respondent did not submit a written incident report to the Department by October 20, 2017, regarding the brandishing of Mr. Roberson’s knife or the discharge of his firearm that resulted in injury to another patron.[7] The Dewitt Incident (Department Report #18-00166) 20. As of January 03, 2018, Justin Dewitt had a felony record, and as such was not legally permitted to own or possess a firearm.[8] 21. On January 03, 2018, Mr. Dewitt, employed as a karaoke Disc Jockey by Respondent, entered Respondent’s establishment for the start of his shift with what he believed to be a prop gun which he had borrowed from Mr. Roberson. Mr. Dewitt checked the gun with the bartender, and left it at the bar overnight. 22. Mr. Dewitt did not have permission or consent from Mrs. Carrafa to possess a firearm, in any capacity, on Respondent’s premises. 23. On January 04, 2018, Mr. Roberson retrieved the gun from Respondent and turned it into the Marshal’s office.[9] 24. Later that night Mr. Dewitt was arrested by Sgt. Mattern for violation of Ariz. Rev. Stat. § 4-244.30.[10] The Stricklin Shooting (Department Report #18-00262) 25. On January 29, 2018, Aaron Gaines was working as a bartender for Respondent’s establishment. That evening, Mr. Gaines inspected and then checked what he thought was a prop gun, given to him by patron Larry Stricklin. Mr. Gaines placed the gun behind the bar in an unlocked drawer. In actuality, the firearm was fully functional and Mr. Stricklin had live ammunition on his person. 26. During the approximately three and a half hours Mr. Stricklin was at the bar, he consumed eleven alcoholic beverages; ten beers and one shot of liquor.[11] 27. Near the bar’s closing time, Mr. Stricklin’s firearm was returned to him. Prior to departing, however, Mr. Stricklin loaded his gun in the bathroom. 28. Almost immediately after leaving the bar, while in front of Respondent’s front patio, Mr. Stricklin accidently shot Mr. Estrada, his friend and roommate who was also a patron, in the leg.[12] Surrounding patrons called for Mr. Gains to come outside and provide assistance. 29. On January 30, 2018, Mr. Gains was cited for a city code violation by the Tombstone Marshal’s Office. 30. Respondent did not submit a written incident report to the Department by February 05, 2018, regarding the shooting of Mr. Estrada. The Ball Incident (Department Report #18-000548) 31. On March 30, 2018, patrons Anthony Adamaitis and Jonathan Ball got into a physical altercation in the rear smoking section of Respondent’s establishment. 32. During the fight, Mr. Adamaitis threw a punch at Mr. Ball, which struck Mr. Ball and his wife, Valerie Vaughn, who had been standing directly behind her husband. Ms. Vaughn sustained injuries to her head and face as a result. 33. Ms. Vaughn reported the incident to Respondent’s bouncer, Anthony Ramirez. 34. Mr. Ramirez asked all three patrons to leave the bar, which they did. 35. Once outside, Mr. Ball and Ms. Vaughn got into a lengthy argument. Ms. Vaughn left in the couple’s car. 36. About an hour after Mr. Ball had initially been kicked out, Mr. Ramirez let him reenter the bar. Mr. Ball was only given ice water and not served any alcohol. 37. Ms. Vaughn was pulled over by Deputy Lohse shortly after leaving Respondent’s establishment. Deputy Lohse observed lacerations on her face. It was later determined that Ms. Vaughn had sustained a concussion as a result of being struck by Mr. Adamaitis. 38. Based on the information Deputy Lohse received from Ms. Vaughn he went to Respondent’s to investigate, during which time Mr. Ramirez admitted that law enforcement had not been contacted. Mr. Ramirez also feigned knowing that an altercation had taken place that evening at all, but acquiesced shortly thereafter. Mr. Ball was retrieved from inside the bar and questioned by Deputy Lohse outside.[13] Mr. BAll left afterwards. 39. On March 31, 2018, Sergeant Travis Mattern of the Tombstone Marshal’s office questioned Respondent’s agent, Mrs. Carrafa, about the prior day’s incident. Mrs. Carrafa admitted Ms. Vaughn, who was employed by Respondent as a custodian, had informed her that she had been punched in the face by Mr. Adamaitis. Per Mrs. Carrafa, however, there was no entry regarding the altercation in the bar’s incident log. 40. Respondent did not submit a written incident report to the Department by April 06, 2018, regarding the Ball/Adamaitis fight or the injuries Ms. Vaughn sustained as a result. 41. Both Mr. Ball and Mr. Adamaitis were charged with Disorderly Conduct by the Tombstone Marshal’s Office. Respondent’s policies 42. During their testimonies, multiple employees conceded that, during the relevant time period, Respondent had an unwritten and unofficial gun- check policy. Specifically, only western style guns were allowed to be inspected and checked by one of Respondent’s employees placed at the door for that purpose. Checked guns were to be kept behind the bar in a drawer without ammunition. Employees also testified that after the Stricklin shooting, Mrs. Carrafa instituted a new gun-check policy whereby guns were placed in a locked back room. The sole exception to the new rule being that employees were permitted to wear unloaded guns to match their western attire. 43. Employees also testified that Respondent had a no-fighting policy that prohibited physical acts of violence between patrons. Specifically, employees were to remove the disorderly patron(s), call local law enforcement, make a note in Respondent’s incident log, and inform Mrs. Carrafa. Any patron “86’d” from the bar for being too intoxicated or aggressive was permitted to pick up their firearm(s) at Respondent’s the next day. Respondent’s Selective Enforcement Argument 44. Mr. Humphries alleged during his testimony that during the town’s annual celebration of the major motion picture Tombstone,[14] from June 29-31, 2018, where reenactors dress in period clothing including displaying replica guns, that he viewed patrons at the Crystal Palace carrying loaded firearms in plain sight of law enforcement officers. Mr. Humphries complained to the Marshal’s office, but no one was cited or arrested as a result. Mr. Humphries admitted that he did not actually check and verify if any of the guns he thought were real were indeed capable of firing live ammunition. Nor did Mr. Humphries attempt to enter the Crystal Palace with a loaded firearm. 45. Mr. Carrafa alleged during his testimony that his relationship with local law enforcement became contentious in 2017, and was exacerbated in 2018 during his mayoral bid. Mr. Carrafa pointed to an incident on or about July 11, 2018, whereby he was physically removed from a City Council meeting due to a perceived attack he made against a city employee. During that same period of time, per Mr. Carrafa, the town newspaper published an editorial by Marshal Randal which impugned his character. Mr. Carrafa argued that the Department and local law enforcement conspired to cite his wife’s bar for violations that other bars perpetrated with impunity, as a means to retaliate against him. CONCLUSIONS OF LAW 1. The Department has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 4-201 et seq. The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. § 41- 1092 et seq. 2. The scope of the hearing is limited to matters officially noticed.[15]

3. The Department bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[16] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[17] 4. The standard of proof on all issues is that of a preponderance of the evidence.[18] 5. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[19] 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.”[20] 6. Ariz. Admin. Code R19-1-505 in subsection (A) provides, pursuant to Ariz. Rev. Stat. §4-244(37),[21] “[a] licensee shall report an act of violence that occurs on the licensed premises.” Subsection (B) provides “[a] licensee shall report an act of violence that occurs on property immediately adjacent to the licensed premises if the act of violence involves a customer who is entering or leaving the licensed premises and if the licensee knew or reasonably should have known of the act of violence.” Subsection (C) provides “[a] licensee shall submit the report required under subsection (A) to the Department or a law enforcement agency. A licensee shall submit the report required under subsection (B) to the Department.” Subsection (D) provides “A licensee shall submit the report required under subsection (A) or (B) within seven days after the act of violence occurs.” Subsection (E) provides “[a] licensee that submits a report under subsection (A) or (B) to the Department shall use a form that is available from the Department and provide the following information to the best of the licensee's knowledge: 1. Name of licensee or licensee's agent; 2. License number; 3. Name of business; 4. Address of licensed premises; 5. Date of the report; 6. Date and time of the incident being reported; 7. A statement whether the police were summoned and if so: a. Name of the police jurisdiction summoned, b. Name of the individual who placed the call to the police, c. Police report number, and d. A statement whether an arrest was made; 8. A statement whether emergency services were summoned and if so, the name of the individual who placed the call for emergency services; 9. Names or description of participants in the incident; 10. Names of individuals injured in the incident and a description of the injury; 11. Detailed description of the incident; and 12. Name, title, and signature of the individual preparing the report affirming that the information provided is true and accurate to the best of the individual's knowledge.” 7. Ariz. Rev. Stat. § 4-210(A)(2) includes among the grounds for suspension, revocation, or refusal to renew a license, if “[t]he licensee fails to satisfactorily maintain the capability, qualifications and reliability requirements of an applicant for a license prescribed in section 4-202 or 4-203.” Ariz. Rev. Stat. § 4- 210(A)(9) includes among the grounds for suspension, revocation, or refusal to renew a license, if “[t]he licensee or controlling person violates or fails to comply with this title, any rule adopted pursuant to this title or any liquor law of this state or any other state.” Ariz. Rev. Stat. § 4-210(A)(10) includes among the grounds for suspension, revocation, or refusal to renew a license, if “[t]he licensee fails to take reasonable steps to protect the safety of a customer of the licensee or any other person entering, leaving or remaining on the licensed premises when the licensee knew or reasonably should have known of the danger to the 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 occurring on the licensed premises or immediately adjacent to the premises when the licensee knew or reasonably should have known of the acts of violence.” Ariz. Rev. Stat. § 4-210(A)(14) includes among the grounds for suspension, revocation, or refusal to renew a license, if “[t]here occurs on the licensed premises a serious act of violence. For the purposes of this paragraph, ‘serious act of violence’ means an act of violence in which a serious injury causes the death or critical injury of a person and the injuries would be obvious to a reasonable person.” 8. Ariz. Rev. Stat. § 4-210.01(A) provides that in lieu of or in addition to the suspension or revocation of or refusal to renew a license authorized by Ariz. Rev. Stat. § 4-210(A), the director may impose a civil penalty of not less than two hundred nor more than three thousand dollars for each violation. 9. Ariz. Rev. Stat. § 4-244(14) provides, in pertinent part, that it is unlawful for “[a] licensee or other person to serve, sell or furnish spirituous liquor to a disorderly or obviously intoxicated person, or for a licensee or employee of the licensee to allow or permit a disorderly or obviously intoxicated person to come into or remain on or about the premises, except that a licensee or an employee of the licensee may allow an obviously intoxicated person to remain on the premises for not more than thirty minutes after the state of obvious intoxication is known or should be known to the licensee for a nonintoxicated person to transport the obviously intoxicated person from the premises. For the purposes of this section, ‘obviously intoxicated’ means inebriated to the extent that a person's physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person.” Ariz. Rev. Stat. § 4-244(30) provides, in pertinent part, that it is unlawful for “[a] licensee or employee to knowingly permit a person in possession of a firearm other than a [law enforcement officer], the licensee or an employee of the licensee acting with the permission of the licensee to remain on the licensed premises or to serve, sell or furnish spirituous liquor to a person in possession of a firearm while on the licensed premises of an on-sale retailer.” 10. The purpose of a licensing proceeding is to maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the . . . profession in the eyes of the public.[22] Disciplinary actions are not punishment; rather, “the primary purpose of a disciplinary proceeding is the ascertainment of moral fitness and professional competency . . ., and a determination of whether it is necessary for the protection of the public interest that the [licensee] be disciplined.”[23] 11. Here, the material facts in the record are clear. 12. Regarding the Stricklin incident, the credible evidence of record reflects that Respondent violated Ariz. Admin. Code R19-1-505 and Ariz. Rev. Stat. §§ 4-210(A)(9), 4-210(A)(10), 4-210(A)(14), 4- 244(14), and 4-244(A)(30). 13. Regarding the Roberson incident, the credible evidence of record reflects that Respondent violated Ariz. Admin. Code R19-1-505 and Ariz. Rev. Stat. §§ 4-210(A)(9), 4-210(A)(10) and 4-210(A)(14). 14. Regarding the Ball incident, the credible evidence of record reflects that Respondent violated Ariz. Admin. Code R19-1-505 and Ariz. Rev. Stat. §§ 4-210(A)(9) and 4-244(14). 15. Regarding the Dewitt incident, the credible evidence of record reflects that Respondent violated Ariz. Rev. Stat. §§ 4-210(A)(9) and 4-244(30). 16. Therefore, the only issue remaining was whether Respondent raised any factors in mitigation or affirmative defenses sufficient to outweigh the credible evidence of record. Respondent was unable to bear this burden by a preponderance of the evidence. 17. Because the Department established by a preponderance of the evidence that Respondent violated Ariz. Admin. Code R19-1-505 and Ariz. Rev. Stat. §§ 4-210(A)(9), 4-210(A)(10), 4-210(A)(14), 4-244(14), and 4- 244(30), the Department has also established grounds for discipline against Respondent’s license pursuant to Ariz. Rev. Stat. § 4- 210(A)(2). RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that that on the effective date of the Final Order in this matter, Respondent Doc Holliday’s Saloon LLC, License No. 06020052, shall be suspended until it remits to the Department the sum total of $11,000.00 in certified funds as a civil penalty pursuant to Ariz. Rev. Stat. § 4-210.01(A). In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, September 05, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

John Cocca, Director Liquor Licenses and Control ----------------------- [1] The record in this matter was held open until July 15, 2019, for the parties to comply with a June 13, 2019, Minute Entry regarding the submission of supplemental evidence, and again until August 16, 2019, to permit both parties to submit written closing statements. [2] A respondent, who does not bear the burden of proof, is not required to present evidence of any kind at an administrative hearing. Notably, however, not only did Respondent, with the assistance of Counsel, present a case in this matter, Respondent also constructively excluded licensed agent Noreen Carrafa from participating in these proceedings, instead opting to have Michael Carrafa sit at Counsel’s table and actively assist in the presentation of Respondent’s evidence, including providing testimony. Because the issue of whether Mrs. Carrafa improperly and/or illegally delegated her duties as Agent to Mr. Carrafa was not noticed, this Tribunal does not have jurisdiction to issue a Recommended Order on that point. It is the undersigned’s opinion, based on four days’ worth of observations during this hearing, that Mr. Carrafa’s role in Doc Holliday’s Saloon LLC is substantially more than tenuous, passive, or indirect. [3] See https://azliquor.gov/query/results_licensenumber.cfm. [4] See Ariz. Admin. Code R4-9-117. On June 20, 2012, Respondent was held to be in violation of Ariz. Rev. Stat. § 4-243.01. On June 13, 2013, Respondent was held to be in violation of Ariz. Rev. Stat. §§ 4-202(C), 4- 241(A), 4-244.9, 4-244.13, and 4-244.14. On February 19, 2015, Respondent was held to be in violation of Ariz. Rev. Stat. §§ 4-241(A) and 4-244.9. [5] Due to multiple continuances the matter was heard on June 10, 2019, June 12, 2019, June 13, 2019, and June 14, 2019. No testimony was taken on June 11, 2019, due to an emergency continuance. [6] See Department Exhibits 1 and 4. [7] The shooting occurred just after midnight on October 13, 2017. Therefore, a report was not required to be submitted until October 20, 2017. [8] See Ariz. Rev. Stat. § 13-3101(A)(7). [9] See Department Exhibit 2. [10] Id. [11] See Department Exhibits 3 and 5. [12] Id. [13] See Department Exhibit 4. [14] See https://www.imdb.com/title/tt0108358/. [15] See Ariz. Rev. Stat. § 41-1092.07(F)(6). [16] Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [17] See Ariz. Admin. Code R2-19-119(B)(2). [18] See Ariz. Admin. Code R2-19-119. [19] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [20] Black’s Law Dictionary 1220 (8th ed. 1999). [21] Ariz. Rev. Stat. § 4-244(37) states that it is unlawful “[f]or a licensee to fail to report an occurrence of an act of violence to either the department or a law enforcement agency. [22] Schillerstrom v. State Board of Chiropractic Examiners, 180 Ariz. 468, 470, 885 P.2d 156, 158 (App. 1994), review denied, December 20, 1994 (quoting Kaplan v. Department of Registration and Educ., 46 Ill. App. 3d 968, 5 Ill. Dec. 303, 308, 361 N.E.2d 626, 631 (1977) (citations omitted). [23] Id. at 470-71, 885 P.2d at 158-59 (quoting Matter of Rabideau, 102 Wis. 2d 16, 26-27, 306 N.W.2d 1, 7, appeal dismissed, 454 U.S. 1025, 102 S. Ct. 559, 70 L. Ed. 2d 469 (1981) (citations omitted)).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826