ALJDEC decisions subject to certification as final

20A-0011-LIQ · Liquor Licenses and Control · 2021-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the matter of Restaurant Spirituous Liquor License No. 12074609 Issued to:

Jared M. Repinski, Agent

Sushi Brokers LLC

Sushi Brokers

17025 N. Scottsdale Rd. #190

Scottsdale, Arizona 85255

No. 20A-0011-LIQ

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 13, 2021, April 14, 2021, April 15, 2021, April 26, 2021, May 7, 2021, with the record held open for written closings

APPEARANCES: Respondent Sushi Brokers LLC was represented by Timothy A. La Sota and Dennis I. Wilenchik. The Arizona Department of Liquor Licenses and Control was represented by Assistant Attorney General Michael Raine.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Sushi Broker, LLC (Sushi Brokers) holds Restaurant Spirituous Liquor License No. 12074609 issued by the Arizona Department of Liquor Licenses and Control (Department).

Jared Michael Repinski serves as Sushi Brokers’ Agent of record pursuant to A.R.S. § 4-202(A).

Randon Miller is Sushi Brokers owner and controlling person under A.R.S. § 4-101(11).

Sushi Brokers’ Disciplinary History

In 2013, after numerous incidents in which Mr. Miller had berated Scottsdale Police Department (SPD) officers performing their duties in the Sushi Brokers’ parking lot, SPD conducted a simulated traffic stop near Sushi Brokers.

When he observed the traffic stop, Mr. Miller exited Sushi Brokers, yelled obscenities at SPD officers, and ignored officers’ orders.

When SPD officers attempted to arrest Mr. Miller for disorderly conduct, Mr. Miller reentered Sushi Brokers.

SPD officers followed Mr. Miller into Sushi Brokers and a physical altercation occurred.

Mr. Miller was charged and convicted of disorderly conduct, and his conviction was affirmed on appeal.

In 2014, SPD officers visited Sushi Brokers to conduct a liquor inspection to investigate whether Mr. Miller was consuming spirituous liquor while operating the business in violation of restrictions placed upon him from a 2013 DUI conviction.

Mr. Miller again verbally attacked the officers and another physical altercation occurred.

Mr. Miller was charged and convicted of disorderly conduct, and his conviction was affirmed on appeal.

In 2016, the Department initiated disciplinary action in Case Number 15A-0001-LIQ against Sushi Brokers based on Mr. Miller’s disorderly conduct on the licensed premises.

Following an administrative hearing, Administrative Law Judge Diane Mihalsky concluded that Mr. Miller had engaged in disorderly conduct on the licensed premises as defined by A.R.S. § 13-2904(A)(1) and had failed to maintain the “capability, qualifications, and reliability” that licensees must demonstrate to operate a liquor licensed business in violation of A.R.S. § 4-201(A)(2).

ALJ Mihalsky also found that the Department “established [Mr.] Miller could be relied upon to escalate interactions with SPD into violent confrontations while he was on the licensed premises, which is a potential disqualification for licensure”, but concluded that Mr. Miller “established that his behaviors that led to his criminal convictions and to this licensing proceeding are unlikely to be repeated.”

Based on these findings, Sushi Brokers’ liquor license was placed on probation for a period of two years, during which time its agents, owners, managers, and employees were required to peaceably cooperate with the Department and SPD; Sushi Brokers was ordered to pay a civil penalty totaling $3,000.00; and Mr. Miller was required to take a three-hour training program approved by the Department.

Sushi Brokers and Mr. Miller successfully completed the terms of the final order in Case Number 15A-0001-LIQ.

March 2020 and April 2020 Disorderly Conduct

On or about March 19, 2020, Arizona Governor Doug Ducey issued Executive Order 2020-09, which required that restaurants close access to the public for on-site dining, beginning on March 20, 2020.

SPD received multiple complaints from the public that Sushi Brokers was open to customers in violation of Executive Order 2020-09.

On or about March 27, 2020, SPD officers visited Sushi Brokers to investigate the complaints. At that time, SPD officers observed that Sushi Brokers had remained open in violation of Executive Order 2020-09’s requirement that restaurants not offer dine-in services.

On or about March 28, 2020, SPD officers returned to Sushi Brokers to discuss their observations of the possible violation of Executive Order 2020-09 from the previous day.

Body camera footage of the interaction, admitted as evidence in this matter, established the following occurred:

When Mr. Miller saw SPD officers in the parking lot, he exited the business and confronted them. Mr. Miller said, “Don’t do this. Why are you doing this?”

When SPD officers told him that they had received reports that people were eating and drinking at the bar, Mr. Miller said, “We are. We are. So shoot us.” Mr. Miller added, “Shoot me first. Take me down first.”

When SPD officers attempted to discuss the matter calmly, Mr. Miller exclaimed, “We’re trying to stay alive, motherfuckers.”

SPD officers explained Executive Order 2020-09 and the requirements that patrons could not congregate in the premises.

Mr. Miller then responded, “So I’m the only successful guy in town. And you’re gonna pound my ass. I do better than anyone else right now.”

When the officer said he was just trying to explain what they wanted him to do, Mr. Miller responded, “I don’t really care, motherfucker. I’ve been here 20 years. I’ve paid for every one of your motherfucking cars, every bullet, every gun. Shoot me. We’re gonna be in business. . . . Why would you do this to us? Not all of us are scared of getting sick.”

As he left to reenter the business, Mr. Miller said, “I really love you fuckers.” Mr. Miller turned around at the door to Sushi Brokers and said, “Thank you, Motherf . . . . Everybody just left. Fuck you, fuckers. I was gonna win from last night. Today I was . . . . I’m telling you this straight up, motherfuckers. I would have won tonight. As the only guy, who maybe, get a half [unintelligible] sales. Thank you.”

Following the interaction, SPD officers moved their vehicles to the far end of the parking lot away from Sushi Brokers, but Mr. Miller kept exiting the building and yelling obscenities at the officers from a distance.

On or about April 10, 2020, SPD received another complaint that Sushi Brokers was open in violation of executive orders.

That evening, SPD officers visited the Sushi Brokers’ premises to investigate the complaint and observed potential violations of Executive Order 2020-09. SPD officers did not make contact with anyone on the premises at that time.

On or about April 11, 2020, SPD officers returned to Sushi Brokers to discuss with Mr. Miller the potential violations of Executive Order 2020-09 that were observed the previous day.

Based on Mr. Miller’s ongoing pattern of escalating interactions with SPD officers from discussions to disorderly conduct, SPD had a policy that any officers conducting routine police activity near Sushi Brokers, directly related to Sushi Brokers or not, received immediate, automatic back-up. Therefore, on April 11, 2020, approximately seven SPD officers were on site for the discussion, with two of them riding along for training purposes.

Body camera footage of the interaction, admitted as evidence in this matter, established the following occurred:

Mr. Miller exited Sushi Brokers as SPD officers arrived and approached the business. Mr. Miller immediately began insulting the officers and spouting obscenities.

Throughout the exchange, Mr. Miller was recording the interaction on his cell phone, however, that footage was not offered into evidence.

Upon the initial interaction, Mr. Miller came out the door and said, “There’s no reason to be like this. This is, this is actually thuggery. We’re trying to stay in business and you guys just can’t stand the fact that we might be able to make a little bit of money here. It just pisses you off doesn’t it with your liberal bullshit.” Mr. Miller turned around and went back inside.

Mr. Miller then came back to the door and said, “Put it right there. I’ll sign it. Go to the front. I’ll sign it.” Mr. Miller went back inside the establishment.

One officers then said, “Okay. You guys have one?”

Officer Bailey said he would go get one and went to his car to get a citation form.

Mr. Miller was inside the establishment, went to the front window, and said, “How many of you does it take to do this, really?” Two customers were sitting at a table just outside the window.

Pointing to one of the officers, Mr. Miller said, “This guy . . . in front of me, is a lying piece of shit.”

The two customers got up and walked away.

Mr. Miller then said, “That’s all you do is keep your mouth moving and it’s just a lie after a lie after a lie. I’ve got the mayor. We got the governor. We’ll just call everybody and say is this really what we need to be doing? Is this really what we need to be doing? Is this solving anything for the big picture? No.”

Officer Bailey returned from the car and asked Mr. Miller where he wanted to talk and said he needed to get some of his information. Mr. Miller said he would sign it, but Officer Bailey said he needed some information. Mr. Miller told him to come over to the little window. There were customers standing in the area and Mr. Miller said to them, “Would you make room for these big badass motherfuckers?”

When Officer Bailey asked for Mr. Miller’s driver’s license, he yelled, “I don’t drive, motherfucker, because of that lying piece of shit right there.”

While pacing back and forth inside the premises, Mr. Miller was recording the officers and saying that they “don’t even understand how much this whole city is enjoying . . . is gonna watch this on all the internets. This is what we pay you guys for? Eighteen of them to give a ticket.”

When Officer Bailey asked Mr. Miller for his current phone number, Mr. Miller responded, “I’m not giving you no phone number. Give me a break. You have no right asking me for a fucking phone number.”

When Officer Bailey asked Mr. Miller if he lived at the same address, Mr. Miller responded, “It’s none of your fucking business. . . . I would never tell you my fucking personal address.”

Mr. Miller went out the front door of the business and said to an officer, “Stay away from me. I’m on the phone dude.” To the person on the phone, he said, “Yeah, they’re all standing around here like fucking monkey thugs.”

Officer Bailey returned to his vehicle to obtain the required information from the system gathered during prior interactions with Mr. Miller.

As other officers were standing in the parking lot and on the sidewalk in front of Sushi Brokers, Mr. Miller said, “Do you guys mind getting out of the fucking way? Come on. Really?”

To customers, Mr. Miller said, “Come on in. They’re just, they’re just . . . just look at this shit. They’re all the fuck over here. [Unintelligble] the goddamn fucking governor . . . .”

During all of this, the two customers who had been sitting in front of the pick-up window outside Sushi Brokers went into the parking lot and engaged in a conversation with one of the officers asking what the issue was. The officer explained that they were receiving complaints from the public regarding violations of the executive order. The officer stated that a lot of times the conversations were easier than this one because Mr. Miller was very angry and other times they have great conversations with everybody.

As the officer was talking to the patrons, Mr. Miller yelled from the area by the front door, “You don’t sit out there and talk to my fucking customers; telling them how cool you are; how bad ass you are. Just go get your shit and give me my goddamn ticket.” One of the customers then walked up to the window to get his order.

Mr. Miller said to the officers outside the window, “And you wonder why nobody likes you little fuckers. Maybe you oughta go read the Goldwater Institute when they published about how big of a scam Scottsdale is. And all your fucking cops, and judges, and fucking attorneys. Fucking. How come they’re all getting fired now, huh? Maybe some of you guys oughta go with them. Let’s go ahead and drain Scottsdale swamp.”

Officer Bailey returned to the window and Mr. Miller said, “Takes fourteen hundred of them to write a ticket anymore. Can I hold the pen for you while I spin the fucking stool to write your name, sir? No you’re too smart. Just give me the goddamn ticket and shut up. I’ll sign it.”

Officer Bailey attempted to explain the nature of the citation, and Mr. Miller said, “I don’t care what it is, just give it to me and I’ll sign it. I don’t give a shit. I don’t care. I know what you’re up to, sir. You’ve already pushed your buttons. We’re suing you motherfuckers. Go read the Goldwater Institute. Twelve pages on the corruption from the Scottsdale Police Department. It was about me and how you treated me. Now what do you want me to do? Sit here and be your friend. Just give me the goddamn ticket. You think I really care? I’m going to tear it up and throw it in the fucking trash anyway and you guys will have to come get me again. Just give me the ticket. Stop being a fucking [unintelligible]. Just set it right there.”

When Officer Bailey kept trying to explain what the charges on the citation were, Mr. Miller yelled, “Just give me the motherfucking ticket and get out of here.”

Officer Bailey attempted to explain that SPD officers observed violations of the governor’s executive order on March 28, 2020, and April 10, 2020, and Mr. Miller asserted that he did not get a violation the last time. When Officer Bailey said the violation was observed, by different patrol officers and Sergeant Adams, Mr. Miller questioned, “The liars? This is going to be so good for me to put all this together for you to see how stupid and asshole-ish you guys are.”

After they provided Mr. Miller with the citation, SPD officers were walking back along the front of the premises towards their vehicles in the parking lot as Mr. Miller walked beside them inside the premises. Throughout the walk, Mr. Miller was making comments to the SPD officers through the open windows.

When the SPD officers reached the end of the building, Mr. Miller came out of the premises from a door on that end of the building and behind Officer Bailey and said, “Fuck off.”

When Officer Bailey turned around and put his clipboard down, Mr. Miller reentered the Sushi Brokers’ premises and Mr. Miller was apprehended a few steps inside the door. Officer Bailey informed Mr. Miller that he was under arrest for disorderly conduct.

Mr. Miller was charged with the misdemeanors of violation of Executive Order 2020-09 and disorderly conduct.

SPD Officer Christian Bailey testified that during the time in question, SPD was conducting routine enforcement of COVID-19 regulations after receiving complaints, had visited numerous other establishments for that purpose, and had issued several citations. Officer Bailey stated he detected the odor of intoxicating beverages coming from Mr. Miller’s person.

Officer Bailey maintained that SPD went to the premises with the intention of having a conversation with Mr. Miller regarding the observed violations, but Mr. Miller was unwilling to engage in a civil discussion.

Sushi Brokers insinuated through its questioning of Officer Bailey that SPD was targeting Sushi Brokers and engaging in a pattern of harassing Mr. Miller in an effort to provoke him into a physical response. No evidence was submitted to support this assertion.

July 4, 2020 Disorderly Conduct

Meagan Atkins, a server, testified that she was serving Mr. Miller’s group on the evening of July 4, 2020. Alexis Maya, a server, was also working at Sushi Brokers that night. According to their testimony, the following events occurred:

While serving Mr. Miller’s table, Ms. Atkins opened a bottle of wine, but Mr. Miller was upset with how she did it and told her to “take her panties off” when she came back to his table.

Ms. Atkins told Mr. Miller to “fuck off” and asked why he thought he could talk to her that way. Mr. Miller told Ms. Atkins that if she could not take it, she should “get the fuck out.”

Mr. Miller became angry with Ms. Atkins and stood behind her as she was inputting orders on a screen. Mr. Miller yelled obscenities to her including many of a sexual nature such as caller her the “alpha beaver”, “cunt”, “bitch”, and “fat ass.”

Another employee, Juan Rios attempted to intervene, but Mr. Miller shoved Mr. Rios against a wall.

Ms. Atkins told Ms. Maya about Mr. Miller’s conduct at the table. Ms. Maya heard Mr. Miller yelling at Ms. Atkins and calling her a “bitch” and a “fat ass.” According to Ms. Maya, Mr. Miller was very loud, the whole restaurant could hear him, and people were watching the unfolding scene.

Ms. Atkins fled to the women’s restroom to get away from Mr. Miller. Ms. Maya entered the women’s restroom to check on her.

While Ms. Atkins and Ms. Maya were in the women’s restroom, Mr. Miller repeatedly kicked at the door and yelled at the two of them, including yelling to Ms. Maya to “stop sucking her titties.”

A female patron entered the women’s restroom and asked if Ms. Atkins and Ms. Maya were okay, Ms. Atkins took the opportunity to leave the restroom. At the time, Mr. Miller was still yelling at them and blocking access to the front door, so Ms. Atkins exited through the kitchen and out the back door with Mr. Rios.

After Ms. Atkins left, Mr. Miller continued yelling at Ms. Maya and calling her a “bitch,” among other things.

Scott Utrecht, Sushi Brokers’ bookkeeper and long-time acquaintance of Mr. Miller, intervened.

Mr. Miller punched Mr. Utrecht in the chest, and Mr. Utrecht left the restaurant.

Mr. Miller fired Ms. Maya and Mr. Rios.

When Ms. Atkins arrived at home, she was still very upset and told her brother about the incident. Ms. Atkins called the police to report the incident and was initially in contact with the Phoenix Police Department (PPD) because she resided in Phoenix.

Ms. Atkins was informed PPD did not have jurisdiction because the alleged conduct occurred at Sushi Brokers, in Scottsdale.

Mr. Rios did not testify at the hearing, but he was interviewed by SPD and the Department regarding the incident and provided statements that were consistent with Ms. Atkins and Ms. Maya.

Mr. Urtrecht testified that he was present at Sushi Brokers on the evening of July 4, 2020, but stated that he was not seated at Mr. Miller’s table. Mr. Urtrecht indicated that Mr. Rios was becoming very friendly with some of the female staff and had asked several staff members if he could move in with them. Mr. Urtrecht stated that Mr. Miller was upset with Mr. Rios’s actions in general and that on that evening he quickly walked over to Mr. Rios to discuss something with him. Mr. Miller then fired Ms. Atkins when she tried to intervene on Mr. Rios’s behalf. Mr. Urtrecht indicated that when another server, presumably Ms. Maya, also attempted to intervene, Mr. Miller fired her as well. Mr. Miller told all three of them to leave immediately. Mr. Urtrecht could not recall if Mr. Miller was drinking on the evening of July 4, 2020, but stated Mr. Miller did not appear drunk. Mr. Urtrecht stated that, if Mr. Miller was drinking on the premises, he did not involve himself in management duties, but stated that he would sometimes ask Mr. Urtrecht to remind staff to get off their phones. Mr. Urtrecht acknowledged that he intervened at some point in an effort to calm Mr. Miller.

Bianka Fisk, Sushi Brokers Bartender and Manager, testified that she was not present on the evening of July 4, 2020. Ms. Fisk stated that even if Mr. Miller was present at Sushi Brokers eating or drinking, he was still working as a manager to make sure that things were running smoothly. Ms. Fisk stated that Mr. Miller was “actively” managing the establishment when he was present.

Mr. Miller did not testify at the hearing to provide his account of the evening’s events.

The Present Matter

On or about December 14, 2020, the Department issued the Complaint and Notice of Hearing in this matter, which charged Mr. Miller and Sushi Brokers with possible violations of A.R.S. § 4-210(A)(2); A.R.S. § 4-210(A)(9), as it related to A.R.S. § 4-244(12); and A.R.S. § 4-210(A)(10).

At the time of the hearing, the Department indicated it would not be pursuing the alleged violation of A.R.S. § 4-210(A)(10).

At hearing, the Department presented the testimony of Detective Christopher Allard; SPD Officer Christian Bailey; Alexis Maya; and Meagan Atkins. Sushi Brokers presented the testimony of Bianka Fisk; Scott Urtrecht; William Griffeth, former Director of the Department from 1992 to 1995; and Rick Miller, Mr. Miller’s brother. Mr. Miller did not testify.

In its closing arguments, Sushi Brokers relied heavily on Mr. Miller’s First Amendment freedom of speech as a bar to discipline of Sushi Brokers’ license in this matter and argued that “[t]he only thing [Mr.] Miller may be liable for is the non-existent ‘contempt of cop’ rule.” Sushi Broker also argued that in none of the incidents described, did Mr. Miller’s actions constitute “disorderly conduct” under the criminal statutes such that discipline of Sushi Brokers’ liquor license would be permissible or appropriate.

CONCLUSIONS OF LAW

The Department has jurisdiction to determine whether Sushi Brokers and Mr. Miller violated applicable liquor law.

The Department bears the burden of proof to establish cause to revoke, suspend, or otherwise discipline Sushi Brokers’ license by a preponderance of the evidence. Sushi Brokers bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Mr. Miller is Sushi Brokers’ owner and controlling person under A.R.S. § 4-101(11).

Sales of spirituous liquor to the public in bars and restaurants in Arizona is a heavily regulated industry. Licensees must be willing to be regulated and to give some degree of deference to regulating agencies.

A.R.S. § 4-210 provides, in pertinent part, as follows:

A. 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:

. . . .

2. The 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.

. . . .

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.

A.R.S. § 4-244 defines “unlawful act” to include, in pertinent part, the following:

(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.

Title 4 does not define “disorderly condition.”

A.R.S. § 13-2904(A)(1) defines “disorderly conduct”, as used in the criminal sense, as follows:

A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person . . . [e]ngages in fighting, violent or seriously disruptive behavior . . . .

While Sushi Brokers argued that Mr. Miller’s actions did not meet the criminal definition of “disorderly conduct,” such an inquiry is not before the Administrative Law Judge in this matter. Rather, the question is whether Mr. Miller was “on or about the licensed premises while in [a] . . . disorderly condition.”

The body camera footage and testimony offered demonstrated that on or about March 28, 2020, and April 11, 2020, Mr. Miller engaged in expletive-filled rants toward SPD officers who were present to enforce the governor’s executive order regarding dine-in services at restaurants. Mr. Miller repeatedly entered and exited the premises while yelling obscenities at officers in full view of patrons in the area.

Hence, the Department established that Mr. Miller was on or about the licensed premises in a disorderly condition on those dates.

As to the July 4, 2020 incident, the testimony from Ms. Maya and Ms. Atkins was consistent with their previous statements and with each other. While Mr. Utrecht’s testimony was offered to contradict the testimony of Ms. Maya and Ms. Atkins, Mr. Utrecht admitted that he intervened in an effort to try to calm Mr. Miller, thereby giving weight to the accounts that Mr. Miller was acting in such a manner that he needed to be calmed.

Therefore, the weight of the credible evidence established that Mr. Miller was on or about the licensed premises in a disorderly condition on that date.

Therefore, the Department has established grounds to revoke, suspend, or otherwise penalize Sushi Brokers’ license under A.R.S. § 4-210(A)(9), as it relates to A.R.S. § 4-244(12).

As demonstrated in the previous proceeding and the present matter, the Department established that, while on or about the licensed premises, Mr. Miller consistently escalated interactions with SPD, which may establish that a licensee lacks the capability, qualifications and reliability requirements of an applicant, a potential disqualification for licensure.

It is notable that Mr. Miller was able to successfully complete the probationary period resulting from the prior disciplinary matter without incident. Accordingly, it appears that Mr. Miller was capable of restraining his reaction to a SPD presence at Sushi Brokers when under conditions requiring him to do so. However, once the probation ended, Mr. Miller returned to his escalating behaviors during interactions with SPD officers.

A liquor license is a privilege, not a right. Even though cause may exist to discipline a license, however, a licensee may establish that he is rehabilitated, has reacquired good character, and no longer poses a threat to the public.

The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted:

No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant . . . , a judgment of which it may be said as it was of “many honest and sensible judgments” in a different context that it expresses “an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth.”

Once good character is shown to be absent, however, it is not automatically regained by the mere passage of time and positive and affirmative activities are required for a person to regain what was lost.

While Mr. Miller insinuated that SPD and the Department had orchestrated the incidents at issue in this matter to provoke him to respond in a physical manner for which they could then punish him, Mr. Miller completely abdicated any responsibility he had for his own actions in those interactions.

For instance, Respondent’s counsel questioned why SPD officers went to Sushi Brokers on April 11, 2020, when the citation could have been mailed instead. Counsel also asked why, after SPD gave Mr. Miller the citation on April 11, 2020, they did not just walk away and ignore Mr. Miller’s continued ranting as they returned to their vehicles. Neither Sushi Brokers nor Mr. Miller acknowledged that he would not have been arrested had Mr. Miller remained where he was and stopped engaging with SPD officers.

In the prior proceeding against Sushi Brokers, ALJ Mihalsky concluded that Mr. Miller “established that the behaviors that led to his criminal convictions and to this licensing proceeding are unlikely to be repeated.” However, Mr. Miller’s conduct at issue in this matter established that to be false.

Nothing in the record indicated that Mr. Miller would change his behavior during interactions with SPD or the Department in the future if given the opportunity.

Therefore, the Department has established grounds to revoke, suspend, or otherwise penalize Sushi Brokers’ license under A.R.S. § 4-210(A)(2).

Sushi Brokers argued that the Department could not discipline its license simply because Mr. Miller exercised his First Amendment freedom of speech when he called SPD officers “motherfuckers” and “lying pieces of shit.”

The Department and the OAH are executive agencies who are charged with enforcing statutes that the Arizona Legislature has enacted. Well-established common law authorities, principles of judicial review, and separation of powers prohibit an administrative agency from declaring that a statute violates the United States or the Arizona constitutions. Therefore, neither the OAH nor the Department have jurisdiction to determine the constitutionality of the statutes at issue. Sushi Brokers and Mr. Miller may challenge the constitutional validity of the statutes in a judicial forum.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Bar Spirituous Liquor License No. 12074609 issued to Sushi Brokers be revoked.

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.

-54864001

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-137160-45720000Done this day, September 21, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Colonel Heston Silbert, Interim Director

Liquor Licenses and Control-54864001

001

-137160-45720000