ALJDEC - Licensing

23A-000406-LIQ · Liquor Licenses and Control · 2024-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of Series #6

Restaurant Liquor License No.

06100207 issued to:

Hi Fi Kitchen and Cocktails

345 E. Congress Street

Tucson, Arizona 85701;

Jeffrey Craig Miller, Agent;

Hi Fi Tucson LLC, Owner,

Respondent.

No. 23A-000406-LIQ

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 26 and 27, 2024, with the record held open until November 18, 2024 for written closing arguments.

APPEARANCES: Assistant Attorney General Deanie Reh, Esq., appeared on behalf of the Arizona Department of Liquor Licenses and Control (“Department”). Peter H. Schelstraete appeared on behalf of Respondent Hi Fi Kitchen and Cocktails (“Hi Fi”).

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibits 1-16, and 23-24 and Respondent’s Exhibits A-G were admitted into evidence.

_____________________________________________________________________

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

On December 23, 1984, the Department issued License No. 06100207 to Respondent. The license is active. Respondent’s address of record for the license is 345 E. Congress Street, Tucson, Arizona 85701. Jeffrey Craig Miller is its Agent.

On May 13, 2024, the Department issued a Complaint and Notice of Hearing to Respondent for alleged violations of Ariz. Rev. Stat. §§ 4-210(A)(2), 4-210(A)(9), 4-210(A)(10), and 4-244(14).

The matter was referred to the Office of Administrative Hearings, an independent state agency, for evidentiary hearing on June 16, 2024. 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

The Department presented the testimony of Arsham Jolaee, Robert Ramirez, Christine Montoya and J. Richardson.

Respondent presented the testimony of Chloe Holm, Norbert Bryan Neumeister, Dallas Brown, Anthony Rose and Jeffrey Craig Miller.

Arsham Jolaee

Mr. Jolaee testified that he remembered going to Hi Fi with $500.00 in cash to spend on drinks for him and his friends. He did not recall what time he arrived at Hi Fi, but that he had a lot to drink and got kicked out.

Mr. Jolaee testified that he was drinking tequila and vodka, and knew that he purchased bottle service, because of a video taken by his friend.

Further, Mr. Jolaee testified that his friend, Bobby informed him what happened, at that he suffered injuries to his eyebrow, when he fell out of the car and hit his head while trying to vomit.

Mr. Jolaee testified that he did not remember becoming intoxicated, but was informed by the doctor at the hospital that his Blood Alcohol Level (“BAC”) was .024.

In addition, Mr. Jolaee testified that in addition to the physical injury, he also struggled mentally, and had to drop out of college for a while, but was now back in school.

Robert Ramirez

Mr. Ramirez was friends with Mr. Jolaee and went to Hi Fi with him and 3 other friends. Mr. Ramirez testified that they arrived at Hi Fi around 10:30-10:40 p.m. and went straight to the bar. He testified that they each had 2 drinks in about 20 minutes and that Mr. Jolaee had 2 “Jack & Coke’s”.

Mr. Ramirez testified that at around 11:45 p.m., they ordered “Bottle Service” whereby a bottle of Don Julio 1942 was purchased and brought to the table. Mr. Ramirez testified that Mr. Jolaee was fairly drunk prior to getting the table for “Bottle Service”.

Further, Mr. Ramirez testified that the waitress poured 2 shots of tequila straight into Mr. Jolaee’s mouth. Mr. Ramirez testified that once the bottle was empty, he gave Mr. Jolaee water, and that Mr. Jolaee appeared intoxicated to him. Mr. Ramirez also testified that it was possibly obvious to staff that Mr. Jolaee was intoxicated as he was loud, obnoxious and swaying.

Mr. Ramirez testified that after about 10 more minutes, Mr. Jolaee was dancing and then slouched over, and security asked them to leave. Mr. Ramirez testified that security helped him get Mr. Jolaee to the door and outside of the club where Mr. Jolaee stood up against the planters, but that security would not help carry him to the parking garage.

Christine Montoya

Officer Montoya was a patrol officer for the Tucson Police Department, Downtown Division, and responded to the parking garage when the fire department called for police. In addition, Officer Montoya testified that when she arrived, she observed Mr. Jolaee in a chair with vomit on his shirt. Officer Montoya testified that she observed that Mr. Jolaee was not coherent and later interviewed Mr. Jolaee the next day. Officer Montoya also prepared incident reports.

Further, Officer Montoya testified that it was her opinion that Hi Fi should have notified the police of Mr. Jolaee’s condition. Officer Montoya also testified that no officer interviewed any staff from that night, nor asked to see any video surveillance from that evening.

John Richardson

Mr. Richardson was a Special Agent for the Department, and investigated this matter.

Mr. Richardson testified that he reviewed the licensee records and training records, videos from that night, the bodycam videos as well as speaking with Mr. Jolaee. Mr. Richardson stated he prepared two reports for the Department.

In addition, Mr. Richardson testified that he had concerns about the waitress pouring alcohol straight from the bottle as there was no measuring device to know the exact amount of alcohol poured.

As to the license history, Mr. Richardson testified that since 2020, there had been 3 citations for selling too much alcohol to a person.

As to the current case, Mr. Richardson testified that it was the licensee’s responsibility to protect people in their establishment. Mr. Richardson testified that the incident with Mr. Jolaee got out of hand as a BAC of .245 is extreme and dangerous, and security should have seen Mr. Jolaee get into the car, or at a minimum get him a ride or medical attention.

Chloe Holm

Ms. Holm was employed at Hi Fi and was the waitress who poured the tequila directly into Mr. Jolaee’s mouth. She testified that she poured a tiny bit, and would never pour more than what she would pour in a shot glass. Ms. Holm testified that she had been a waitress for a while and knew how much she was pouring.

In addition, Ms. Holm testified that based on her experience she would have had a good idea if Mr. Jolaee was very intoxicated, but he was not showing any signs, as he was not slurring his words, not falling over, and he was walking and dancing fine. Ms. Holm also added that she was at the table every 10 to 15 minutes.

Dallas Brown

Mr. Brown was currently the General Manger for Hi Fi, but was a DJ on the night in question. Mr. Brown testified as to the policies and procedures and stated that since he became General Manager in March 2024, he hired all new security staff. In addition, Mr. Brown testified that everyone has to take their Title 4 training and will not be scheduled for work until they do so.

Also, Mr. Brown testified that while Hi Fi has cameras they are not monitored during the day, and that the footage is only saved for approximately two weeks.

Mr, Brown testified additionally that now, if medical attention was needed they would seek it but on that night there were only 7 security guards working. Too, Mr. Brown testified that no one was approved to pour liquor straight into someone’s mouth.

Further, Mr. Brown testified that he did not see Mr. Jolaee that night.

Anthony Rose

Mr. Rose was now the Floor Manager, but was working at the door during the night in question. He testified that he talked with Mr. Jolaee while he was leaving, and interacted with him. Mr. Rose testified that Mr. Jolaee was talking to him about his friends and the “Bottle Service”. Mr. Rose testified that Mr. Jolaee was standing up very well and his words were very fluid. Also, Mr. Rose testified that Mr. Jolaee walked out under his own power and was not carried out by any security or friend.

Jeffrey Craig Miller

Mr. Miller was employed with Arizona Liquor Industry Consultants, and had worked with the Department prior to that. Mr. Miller testified that he was Hi Fi’s agent on the license.

Mr. Miller testified that there should be one security guard for every 50 patrons and that Hi Fi was within industry standards. He also testified that if a patron was showing obvious signs of intoxication they are not allowed to stay on the premises longer than 30 minutes.

In addition, Mr. Miller testified that he spoke with Mr. Jolaee’s friend, Luis Antonio Martinez-Lopez who informed him that Mr. Jolaee was drinking at “The Hut” before arriving at Hi Fi. Mr. Miller also testified that Mr. Jolaee testified that they were at “The Hut” prior to arriving at Hi Fi.

Mr. Miller also testified that if Mr. Jolaee’s BAC was .245, he would be showing signs of intoxication.

CONCLUSIONS OF LAW

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.

The scope of the hearing is limited to matters officially noticed.

The Department bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

The standard of proof on all issues is that of a preponderance of the evidence.

“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.”

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, 4-203, 4-203.06, 4-203.07 or 4-205.13.” 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, registrant, lessee or permittee 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...”

Ariz. Rev. Stat. § 4-210.01(A) provides:

In lieu of or in addition to the suspension or revocation of or refusal to renew a registration pursuant to section 4-205.13, subsection G and a license authorized by section 4-210, subsection A, the director may impose a civil penalty of at least $200 and not more than $3,000 for each violation. The licensee or registrant is entitled to appeal the decision of the director to the board. The board may affirm, modify or reverse the finding and decision of the director and may decrease the civil penalty imposed by the director.

The director may require a licensee or registrant to pay a civil penalty assessed pursuant to subsection A of this section in a single payment or in installment payments.

In addition to the imposition of any other penalty authorized by this title, the director may impose a requirement that the licensee or registrant or other person attend a training program approved by the department.

Ariz. Rev. Stat. § 4-244(14) provides:

It is unlawful:

...

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 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.

The tribunal was presented with a host of contradicting evidence, as to how much Mr. Jolaee drank prior to Hi Fi, what he drank, and how he acted once at Hi Fi. What was clear was that security removed Mr. Jolaee from the premises once it became apparent that he was “obviously intoxicated”. The video presented in Exhibit 13 shows Mr. Jolaee dancing and smiling, not passed out or slouching. Aside from Mr. Ramirez’ testimony that Mr. Jolaee was acting “obnoxious” to him, does not mean that this was a sign of obvious intoxication to a reasonable security guard or server. Further, there was no evidence that Mr. Jolaee was violent, disorderly, or otherwise inappropriate to any staff or patron of Hi Fi. Thus, there was no way to determine if Mr. Jolaee was obviously intoxicated, until he was. And once he was, security removed him from the premises.

Further, the tribunal does not read into § 4-244(14) some sort of duty to have security wait with a patron. From the evidence provided, Mr. Ramirez and/or Mr. Jolaee stated they had a ride and headed towards the parking garage. That should be enough for security or other staff to then go about their business with other patrons.

While it is unfortunate that Mr. Jolaee vomited and hit his head, that could have been caused too by simply driving out of the garage and taking a turn too quickly or a sudden stop, but it was no longer Hi Fi’s responsibility to ensure Mr. Jolaee’s safety.

Because the Department failed to establish by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. §§ 4-210(A)(2), 4-210(A)(9), 4-210(A)(10), and 4-244(14).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Department dismiss the Complaint in this matter against Hi Fi.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, December 3, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Ben Henry,

Liquor Licenses and Control

Peter H. Schelstraete

Schelstraete Law Offices

[email redacted]

Deanie Reh

Office of the Attorney General

[email redacted]

[email redacted]

By: OAH Staff