ALJDEC decisions subject to certification as final

18A-0006-LIQ · Liquor Licenses and Control · 2019-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2019 APPEARANCES: McFadden’s Glendale LLC was represented by Peter H. Schelstraete. The Arizona Department of Liquor Licenses and Control was represented by Assistant Attorney General ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona Department of Liquor Licenses and Control (Department) has the authority to regulate the sale of spirituous liquor in the State of Arizona pursuant to A.R.S. § 4-101 et seq. The Department also has the authority to impose disciplinary sanctions against the holders of licenses for statutory violations. A.R.S. § 4-210 and A.R.S. § 4- 210.01. 2. At all times relevant to this matter, McFadden’s Glendale LLC doing business as McFadden’s Restaurant & Saloon (Respondent), held spirituous liquor license number 06070557 (License) issued by the Department. 3. At all times relevant to this matter, McFadden’s Restaurant & Saloon (McFadden’s) was located at 9425 West Coyote Boulevard, Building H, Glendale, Arizona. (Licensed Premises). 4. Jeffrey Craig Miller became Respondent’s Agent of Record in December 2018. Randy D. Nations was Respondent’s prior Agent of Record. 5. Upon investigation, the Department determined Respondent had committed various violations of Arizona statute. 6. The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. On December 21, 2018, the Department issued a Complaint and Notice of Hearing alleging that cause existed to discipline the license of Respondent under A.R.S. § 4-210(A)(9); A.R.S. § 4-210(A)(10); A.R.S. § 4- 244(12); and A.R.S. § 4-244(14). Hearing Evidence 8. One of Respondent’s employees, Eric Lessard, had a prior relationship with William Fry, Jr. that ended poorly. 9. Mr. Lessard is a long-time Arizona Cardinals fan with season tickets. Mr. Lessard attends every Arizona Cardinals home game and has never worked at McFadden’s on the day of a home football game. 10. On October 22, 2016, Mr. Fry had a conversation on Facebook regarding plans for the following day before or after the Arizona Cardinals football game in which he commented as follows: “lmao I will knock someone out [at McFadden’s].” 11. Someone took a screenshot of the comment and forwarded it to Mr. Lessard, who had blocked Mr. Fry on Facebook and was unable to see it himself. 12. On October 22, 2016, or October 23, 2016, Mr. Lessard let management at McFadden’s know about Mr. Fry’s message as a warning he may cause issues on October 23, 2016. 13. On October 23, 2016, Mr. Lessard stopped at McFadden’s and dropped off various personal items behind the bar on the patio. Mr. Lessard then went to the Arizona Cardinals football game. 14. At some time during the football game, Mr. Fry entered McFadden’s. Mr. Fry was asked to leave based on the comment he posted on Facebook the day before. 15. After the football game concluded, Mr. Lessard went back to McFadden’s to retrieve his personal items. Mr. Lessard saw Mr. Fry on the sidewalk near the entrance to McFadden’s. It was not established if Mr. Lessard approached Mr. Fry or if Mr. Fry approached Mr. Lessard in a confrontational manner. 16. Patrick Basham, Jr., McFadden’s security, observed “fast moving bodies” that drew his attention. He saw another security guard, “Radar” attempting to separate Mr. Lessard and Mr. Fry, so he approached to offer his assistance. 17. Mr. Basham escorted Mr. Lessard along the outside of the patio to the side of McFadden’s building so he could leave the scene. “Radar” escorted Mr. Fry in the other direction. 18. Sergeant Zane Hinde, an off-duty Glendale Police Department Officer working security at Westgate, observed Mr. Fry making over-exaggerated hand movements while interacting with McFadden’s security. Mr. Fry walked away from McFadden’s and approached Sgt. Hinde to report that a McFadden’s employee “sucker punched” him for no reason. Sgt. Hinde observed a scratch approximately one quarter inch long above Mr. Fry’s right eye. 19. Mr. Fry reported that the security pushed him out of the bar and took Mr. Lessard back into the establishment. Mr. Fry did not inform Sgt. Hinde that he knew Mr. Lessard personally. 20. Sgt. Hinde approached McFadden’s to obtain more information and to locate Mr. Lessard. Sgt. Hinde was approached by Matthew Gaudes, an uninterested witness, who provided an account of events consistent with that of Mr. Fry. 21. Sgt. Hinde approached the security personnel at the door who used his radio to request that Mr. Lessard come to the front door, but no one responded. Sgt. Hinde asked the bar manager about Mr. Lessard’s location. Someone told Sgt. Hinde that Mr. Lessard had been taken out the back door of the establishment. 22. On October 25, 2016, Sgt. Hinde contacted Mr. Lessard by telephone regarding the incident. Mr. Lessard informed Sgt. Hinde of his prior relationship with Mr. Fry. Mr. Lessard stated that Mr. Fry approached him as if to assault him, but the security personnel intervened and stopped Mr. Fry before anything could happen. 23. On June 21, 2018, Mr. Lessard entered a plea of guilty to one count of disorderly conduct, a class one misdemeanor, in violation of A.R.S. § 13- 2904(A)(1). APPLICABLE LAW A.R.S. § 4-210(A) provides, in pertinent part, as follows: After notice and hearing, the director may suspend, revoke or refuse to renew any license issued pursuant to this chapter for any of the following reasons: . . . . . 9. The 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. 10. The 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 or an altercation 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 or altercations.

A.R.S. § 4-244 provides, in pertinent part, that the following are unlawful acts: 12. For a licensee, when engaged in waiting on or serving customers, to consume spirituous liquor or for a licensee or on-duty employee to be on or about the licensed premises while in an intoxicated or disorderly condition. . . . . 14. 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 a period of time of not to exceed thirty minutes after the state of obvious intoxication is known or should be known to the licensee in order that a nonintoxicated person may 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.

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 occurred. See A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19- 119. 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 “[e]vidence 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). The uncontroverted evidence established that Mr. Lessard was not on duty on October 23, 2016. Therefore, the Department failed to establish that Respondent had an on-duty employee on the licensed premises while in a disorderly condition in violation of A.R.S. § 4-244(12). The uncontroverted evidence established that an interaction occurred between Mr. Lessard and Mr. Fry on or about the licensed premises. Sgt. Hinde observed a quarter inch scratch above Mr. Fry’s right eye during his discussion with Mr. Fry, but there was no evidence that Mr. Lessard caused the injury. Assuming, arguendo, that Mr. Lessard did cause the injury, McFadden’s security personnel promptly intervened, separated the parties, and prevented further interaction or harm to Mr. Fry. Therefore, the Department failed to establish by a preponderance of the evidence that Respondent failed to take reasonable steps to protect the safety of a customer or any other person entering, leaving or remaining on the licensed premises in violation of A.R.S. § 4-210(A)(10). While Sgt. Hinde was told by a McFadden’s employee and Mr. Gaudes that they believed Mr. Lessard was escorted into the establishment and through the back after his initial interaction with Mr. Fry, Mr. Lessard and Mr. Basham both testified that Mr. Lessard walked away from the interaction along the outside of the patio beyond the licensed premises. Both Mr. Lessard and Mr. Basham were credible in their testimony. Therefore, the Department failed to establish by a preponderance of the evidence that Respondent permitted a disorderly person to come into the premises in violation of A.R.S. § 4-244(14). Accordingly, the Department failed to establish that Respondent violated or failed to comply with this title, any rule adopted pursuant to title four or any liquor law of this state or any other state in violation of A.R.S. § 4-210(A)(9). ORDER Based on the foregoing, it is recommended that the Director of the Department dismiss the Complaint in this matter. 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 five days from the date of that certification. Done this day, March 6, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

John Cocca, Director Liquor Licenses and Control

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