ALJDEC

98A-0019-LIQ · Liquor Licenses and Control · 1998-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 4, 1998. APPEARANCES: The Department of Liquor Licenses and Control (“Department”) was represented by Assistant Attorney General Blair C. Driggs. The Licensee appeared through Margot J. Gales, Agent. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Facts, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. In July of 1997, the Licensee purchased the licensed premises and began operating a restaurant. 2. The Licensee is the holder of Restaurant Spirituous Liquor License No. 12073632 issued by the Department. 3. Prior to April 1, 1998, the Department conducted a covert investigation of the Licensee in response to an active anonymous complaint. 4. The Department’s covet investigation of the Licensee was conducted by its assigned investigating officer, Steve Bribiescas. 5. Officer Bribiescas did not observe any violations of State law on the licensed premises while he conducted the covert investigation. 6. Officer Bribiescas determined that it was time to close out the complaint against the Licensee. On or about April 1, 1998, Officer Bribiescas contacted an employee at the licensed premises to identify himself and advised the employee that the Department intended to close the active complaint. Officer Bribiescas advised the Licensee’s employee that he intended to perform an overt inspection of the license premises prior to closing the complaint. 7. On or about April 1, 1998, Officer Bribiescas performed an announced inspection at the licensed premises. 8. During the announced inspection, Officer Bribiescas visited a separate bar area on the licensed premises containing a shelf with liquor bottles. The officer observed two bottles of Canadian Club whiskey. One bottle had a sealed cap indicating that it had not been opened. The fluid level of the unopened bottle was up to the base of the bottle’s neck. The second bottle had an unsealed cap with a higher fluid level than the sealed bottle. The fluid level of the unsealed bottle was up to the top of the bottle’s neck. 9. It is determined that on April 1, 1998, the Licensee had upon the licensed premises one Canadian Club Whiskey liquor bottle that had been reused for the packaging of distilled spirits. 10. The officer then asked the Licensee’s employee if there were any other liquor storage areas on the licensed premises. The employee took Officer Bribiescas to another storage facility on the licensed premises. The officer inspected three bottles of Triple Sec liquor. One bottle of Triple Sec was unsealed and contained liquid contents filled to the bottom of the bottle’s neck. The officer also observed that the other two bottles of Triple Sec were unsealed with well-worn caps and contained liquor content filled to the very top of the bottles. 11. It is determined that on April 1, 1998, the Licensee had upon the licensed premises two bottles of Triple Sec liquor that had been reused for the packaging of distilled spirits. 12. Officer Bribiescas observed that all other sealed bottles of spirituous liquors on the licensed premises contained content levels up to the base of the bottle neck. 13. The Licensee does not contest the findings of Officer Bribiescas or the allegations made in the Department’s complaint. 14. The Licensee asserts that the establishment does not sell much Canadian Club whiskey and that the refilling of the one bottle was done by the prior owner without the knowledge of the present Licensee. The Licensee is found to have known or to have been responsible for knowing whether there were any refilled bottles of spirituous liquor on the licensed premises while is was the holder of Restaurant Spirituous Liquor License No. 12073632. 15. The Licensee’s claim that the two Triple Sec bottles are only used for cooking and are not for sale for consumption does not excuse the Licensee from the requirements of A.A.C. R19-1-221 prohibiting the reuse or refilling of liquor bottles or containers. 16. The weight of credible and reliable evidence of record supports a finding that the Licensee did not intentionally refill the above described bottles with inferior product in order to deceive its customers.

CONCLUSIONS OF LAW 1. The evidence of record is adequate to establish that the Licensee violated the provisions of A.A.C. R19-1-221 by having a bottle of Canadian Club whiskey and two bottles of Triple Sec liquor that had been reused for the packaging of distilled spirits on the licensed premises as described in the above Findings. 2. The Director of the Department has the statutory authority to discipline the Licensee for proven violations of state statute or the Department’s rules. A.R.S. §4-210 (A) (9). 3. The Director of the Department has the statutory authority to impose a civil penalty against the Licensee for its violation of A.A.C. Rule R19- 1-221. A.R.S. §4-210.01(A). Under all the circumstances, the Director’s imposition of a minimum civil penalty in the amount of $200.00 against the Licensee is deemed appropriate in this matter.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Director of the Department of Liquor Licenses and Control impose a civil penalty in the minimum amount of $200.00 against the Licensee.

Done this day, August 4, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of August, 1998, to:

Mr. Howard Adams, Director Liquor Licenses and Control ATTN: Susie Hamilton 800 West Washington, 5th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826