ALJDEC

98A-0026-LIQ · Liquor Licenses and Control · 1998-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 1998 APPEARANCES: The Department of Liquor Licenses and Control was represented by Assistant Attorney General Patti Shelton. The Respondent was represented by its attorney and agent, Loretta M. Fresquez. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

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

FINDINGS OF FACT

1. Respondent possesses Spirituous Liquor License No. 09030050 issued by the Department. 2. Respondent sells spirituous liquor at a retail location several blocks from the campus of Northern Arizona University in Flagstaff. 3. Late in the evening of April 30, 1998, Investigator Danny Thomas of the Department of Liquor Licenses and Control was on duty observing customers arriving and leaving the Repondent’s store. 4. At almost midnight, Investigator Thomas observed Angela Lata Casey approach the Respondent’s store on foot. 5. Casey was born on January 26, 1978. She was twenty years old on April 30, 1998. 6. At the time Casey’s current driver’s license was issued, she was 5’4” in height, weighted 120 pounds, had brown hair and green eyes. 7. The investigator observed Casey smoking a cigarette and looking into Respondent’s store prior to her entering into the store. Casey appeared nervous and fidgety to the investigator. 8. Thomas observed Casey entering Respondent’s store. 9. When Casey went to the store’s cashier to purchase a six pack of Rolling Rock beer and three pints of Stone Indian Pale Ale, the cashier, Cecily Warden, asked Casey to produce identification to prove that she was over twenty-one years of age. 10. Casey presented Warden with an Arizona driver license bearing the name “Jessica Rae Lux”. The driver license identifies Lux as female born on August 12, 1976. It describes her as weighing 145 pounds, 5’5’’ in height, brown hair and hazel eyes. 11. Casey is not Lux. She found the driver license approximately one year earlier outside her place of employment. There is credible evidence that she had been using the found driver license to purchase spirituous liquor and to gain entry into liquor establishments which required patrons to be at least twenty-one years of age. 12. Warden looked at the photograph of Lux appearing on the driver license and observed Casey’s appearance. Warden concluded that Casey looked like Lux and that Casey appeared to be over twenty-one years of age. 13. Respondent’s night manager, Joseph Fresquez, was working directly behind Warden when she was reviewing the driver license presented to her by Casey. Fresquez looked over Warden’s shoulder and also reviewed it. After reviewing the presented driver license and observing Casey’s appearance and demeanor, Fresquez concluded that Casey was twenty-one years of age. 14. Casey was permitted to purchase the beer and ale. 15. Neither Warden nor Fresquez required Casey to fill out a card for retention by the Respondent containing Casey’s signature, the date and the number of the driver license that she used to verify her age in order to purchase spirituous liquor. 16. By not requiring Casey to fill out a card as provided in Finding of Fact No. 14 above, Respondent and its employees Warden and Fresquez are deemed to have had constructive notice of Casey’s true age, which was twenty years at the time of the incident. 17. Neither Warden nor Fresquez observed Casey while she was outside the store prior to entering it. 18. Warden and Fresquez have attended training pertaining to the verification of age for purchasers of spirituous liquor given by the Department of Liquor Licenses and Control. 19. After observing Casey purchase the beer and ale from Respondent’s store, and opining that she was not twenty-one years of age, Investigator Thomas detained Casey for questioning. She ultimately admitted that she was twenty years of age and that she had found Lux’s driver license. Investigator Thomas issued Casey a citation, took possession of Lux’s driver license, beer and ale, and then released Casey. 20. Based upon the copies of Lux’s driver license and Casey’s driver license which bear their respective photographs, it is determined that a reasonable and prudent individual could reasonably conclude that Casey, presenting Lux’s driver license, was Lux. Casey strongly resembles Lux’s facial features. Both individuals are approximately the same height. Although the driver licenses establish that there is a weight difference of approximately twenty-five pounds between those individuals, at least at the time the respective licenses were issued, it is plausible that Casey could resemble Lux with the explanation that she had dieted since the issuance of the Lux license or by wearing baggy clothing. 21. The totality of the evidence of record supports a finding that there are strong mitigating factors which should be considered when contemplating disciplinary actions against Respondent. This incident is only the second one involving Respondent, who has been in the business of selling spirituous liquor since 1980. The first incident occurred at another store owned by Respondent. Respondent is aware of the inherent risks of selling spirituous liquor to minors, especially given its close proximity to a university campus. Prior to the incident in this case, Respondent regularly maintained a liquor training program for both existing and new employees. Given Respondent’s location next to Northern Arizona University, the length of time it has conducted the business of selling spirituous liquor and that this incident is the second infraction, it is determined that Respondent has been vigilant in screening minors from purchasing spirituous liquor. Since the incident with Casey, Respondent has added additional staff to check the identification of customers on line before they reach the cashier, who also checks patrons’ identification. Respondent now requires almost every customer to sign the identification log. Respondent now has employees patrolling its parking lot to provide security, to observe the behavior of individuals prior to entering into the store, and to assure that adults are not purchasing spirituous liquor for minors. Notwithstanding those remedial efforts by Respondent, the incident of selling spirituous liquor to Casey shows that there is a need for additional liquor training of Respondent’s employees. 22. The Department seeks to impose the following disciplinary penalties on Respondent: a civil penalty in the amount of $1,750.00; an administrative fee of $250.00; and a written report from Respondent outlining remedial steps that it will employ to prevent sales of spirituous liquor to minors. No authority was given for the Department’s request for an administrative fee. It is determined that the evidence of record supports a finding that a civil penalty less than the requested amount and the written report of Respondent’s remedial efforts, subject to approval and modification by the Department, are appropriate disciplinary penalties in this matter. However if those penalties are adopted, Respondent should be admonished that this disciplinary action will serve as a predicate for more serious disciplinary action if there are any future proven sales of spirituous liquors by it to minors.

CONCLUSIONS OF LAW

1. The Director of the Department may suspend, revoke or refuse to renew any license issued by the Department for the failure of the licensee to comply with the Department’s rules or any liquor law of this state. A.R.S. §4-210(A)(9). 2. Pursuant to A.R.S. § 41-1092.01, the Office of Administrative Hearing had the authority to conduct the administrative hearing on the Complaint brought against Respondent by the Department. 3. Respondent’s employees had the statutory authority to require Casey to present identification to them when purchasing spirituous liquor to determine if she was under the legal age for drinking. A.R.S. 4-241(A). 4. Respondent had the permissive statutory authority to have Casey sign her name, the date, and the number of the driver’s license she produced to Respondent’s employees on a card retained by Respondent. Id. Respondent’s failure to require Casey to supply such information in such a manner is deemed to have given Respondent constructive notice of Casey’s real age. A.R.S. §4-241(B). Spitz v. Municipal Court of City of Phoenix, 127 Ariz. 405, 621 P.2d 911 (1980). 5. Respondent violated the provisions of A.R.S. §244(9) when its employees sold Casey, a minor, spirituous liquor on or about 12:00 a.m. on April 30, 1998. 6. The Director of the Department has the authority to impose a civil penalty of not less than $200.00 nor more than $3,000.00 for each violation of the state’s liquor laws. A.R.S. §4-210.1(A). Under all the circumstances, a civil penalty less than two-thirds the amount the Director is empowered to assess is appropriate.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent be assessed a civil penalty in the amount of $875.00. It is further recommended, in addition to the above provided civil penalty, that Respondent be required to participate, at its sole cost and expense, in any liquor training program determined by the Department as necessary to prevent future sales of spirituous liquor to minors, including, but not limited to, the submission to the Department of a written report by Respondent detailing remedial action it has taken, or proposed to institute, to prevent such sales.

Done this day, October 5, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

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

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

By _______________________________

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