STATE OF IOWA BEFORE THE DEPARTMENT OF COMMERCE ALCOHOLIC BEVERAGES DIVISION

Transcription

1 STATE OF IOWA BEFORE THE DEPARTMENT OF COMMERCE ALCOHOLIC BEVERAGES DIVISION IN RE: ) ) DOCKET NO. D Codycal, Inc. ) DIA NO. 10DOCBL040 d/b/a Greenbriar Restaurant & Bar ) 5810 Merle Hay Road ) Johnston, Iowa ) PROPOSED DECISION ) Liquor License No. LC ) On April 12, 2010, the Iowa Department of Public Safety (DPS) filed an administrative hearing complaint against Codycal, Inc. d/b/a Greenbriar Restaurant & Bar (licensee). The hearing complaint alleged that on or about August 25, 2009, an employee of the licensee sold or supplied an alcoholic beverage, wine, or beer to a person under the legal age, in violation of Iowa Code section (2)(h). A hearing was held before Administrative Law Judge Margaret LaMarche on September 27, 2010 at 8:30 a.m. at the office of the Iowa Department of Inspections and Appeals Administrative Hearings Division, Wallace State Office Building-Third Floor, Des Moines, Iowa. Assistant Attorney General John Lundquist represented DPS. The licensee was represented by attorney David Wetsch. THE RECORD The record includes the Hearing Complaint, Notice of Hearing, Appearance of Counsel, Continuance Request and Continuance Orders, the testimony of Johnston Police Officers Tyler Tompkins and Rich Kirkeby, and DPS Exhibits 1-6 (See Exhibit Index for description) FINDINGS OF FACT On August 25, 2009, the Johnston Police Department conducted an alcohol compliance check to determine whether licensed liquor establishments in Johnston would sell alcohol to an underage person. Two underage males agreed

2 Page 2 to participate in the compliance check as confidential informants (CI). CI#1 was born on October 11, 1991 and was 18 years old on August 25, CI#2 was born on May 23, 1990 and was 19 years old. Officer Rich Kirkeby verified their ages through Iowa Department of Transportation records. The confidential informants turned over their wallets and other possessions and were only permitted to carry their valid drivers licenses and a $20 bill to purchase beverages. Office Kirkeby brought the drivers licenses of both confidential informants to the hearing and showed them to the licensee s attorney and to the administrative law judge. The driver s licenses were not submitted as exhibits. Based on viewing the drivers license photographs, the confidential informants had physical appearances that were generally consistent with their ages. (Tompkins, Kirkeby testimony; DPS Exhibit 1) Officer Kirkeby gave the confidential informants instructions for participating in the undercover compliance check. The confidential informants were told to walk into each establishment, order an alcoholic beverage, and to produce their drivers licenses if asked for identification. If a sale was made they were told to pay for the alcoholic beverage and walk out without touching it. Twenty-six establishments were visited during the compliance check. Six of the twenty-six establishments sold an alcoholic beverage to one or both informants. Approximately one week later, both informants provided the Johnston police department with written statements summarizing the sales. (Kirkeby testimony; DPS Exhibits 3-4) On August 26, 2009 at approximately 8:30 p.m., Officer Tompkins and Officer Kirkeby entered the Greenbriar and sat in a booth that had a view of the bar area. The confidential informants entered the Greenbriar after the officers and sat at a table. Officer Tompkins could see the confidential informants from where he was seated, and Officer Kirkeby turned around from time to time to view the confidential informants. A waitress approached the confidential informants and asked them what they wanted to drink. When they asked if there were any wine specials, the waitress offered to bring them a wine menu. When the waitress returned to take their order, CI#1 asked for a water, stating that he would purchase a bottle of wine when the rest of their group arrived. CI #2 ordered a Guinness beer in a bottle. A second employee, later identified as Katie Cronin, served CI#2 the Guinness and CI#1 his water. Neither the waitress nor Ms. Cronin asked CI#2 for identification. Ms. Cronin provided CI#2 with an itemized bill for the

3 Page 3 Guinness, which was $4.50 plus tax. The confidential informants paid with a $20 bill, received change, and walked out of the restaurant. (Tompkins; Kirkeby testimony; DPS Exhibits 1-4) Officer Tompkins was in a position to see the entire transaction. He did not see either employee involved with the sale ask CI#2 for identification. When the officers walked past the table where the confidential informants had been sitting, they saw the bottle of dark beer on the table. They did not sample or test the liquid inside the bottle to verify that it contained alcohol. (Tompkins; Kirkeby testimony) Officer Kirkeby returned to the Greenbriar the following day to speak to the manager. The manager identified employee Katie Cronin, whose name appeared on the receipt given to CI#2, as the person who was working behind the beer and the person who delivered the Guinness to CI#2. The manager told Officer Kirkeby that the waitress, not Ms. Cronin, should be issued the citation for the sale because it was the waitress job to check identification. However, Officer Kirkeby decided to issue the criminal citation to Katie Cronin because she was the one who delivered the beer to CI#2 and took the money for the beer. Katie Cronin reported to the police station on August 27, 2009 and accepted a criminal citation for serving alcohol to an underage person. Neither Greenbriar s manager nor Ms. Cronin told Officer Kirkeby that the Guinness served to the confidential informant could have been non-alcoholic. The criminal citation was later dismissed by the court for an unknown reason. (Tompkins; Kirkeby testimony; DPS Exhibit 5) CONCLUSIONS OF LAW Iowa Code section (2)(h)(2009) provides, in relevant part: 2. A person or club holding a liquor control license or retail wine or beer permit under this chapter, and the person's or club's agents or employees, shall not do any of the following:... h. Sell, give, or otherwise supply any alcoholic beverage, wine or beer to any person, knowing or failing to exercise reasonable care to ascertain whether the person is under legal age, or permit any person, knowing or failing to exercise reasonable care to

4 Page 4 ascertain whether the person is under legal age, to consume any alcoholic beverage, wine, or beer. The Iowa Code defines "legal age" as twenty-one years of age or more. Iowa Code section 123.3(19)(2009). 185 IAC 4.8 states that the violation of the Act (Iowa Code chapter 123) by any employee, agent, or servant of a licensee or permittee shall be deemed to be the act of the licensee or permittee and shall subject the license to suspension or revocation. The burden of going forward with the evidence to establish a violation is on the party filing the hearing complaint, but the alcoholic beverages division places the burden of proving compliance with the statute on the licensee. See McCrea v. Iowa Department of Transportation, 336 NW2d 427 (Iowa 1983); Iowa Code section 17A.18(3)(2009). The preponderance of the evidence established that on August 25, 2009, the licensee s employees sold and served a Guinness beer to an underage (19 year old) confidential informant without exercising reasonable care to ascertain whether the person was under the legal age. Neither the waitress nor the employee who delivered the beer to the confidential informant asked him for identification. At hearing, the licensee did not deny that one of its employees sold and served CI#2 a Guinness for $4.50 on August 25, 2009 without first requesting identification. The only defense offered by the licensee was the assertion that the state failed to establish that the Guinness served to CI#2 was an alcoholic beverage. The state has gone forward with sufficient evidence to establish the illegal sale of a bottle of Guinness beer to CI#2. The licensee offered no evidence to show that Guinness makes a non-alcoholic beer or to show that the Greenbriar sells a nonalcoholic Guinness beer. Officer Kirkeby spoke to the licensee s manager on August 26, 2009 and to Katie Cronin on August 27, Neither of them claimed that the confidential informant had been served a non-alcoholic beer. Based on this record, it is reasonable to conclude that the licensee s employees served and sold an alcoholic beverage (beer) to an underage confidential informant, in violation of Iowa Code section (2)(h)(2009). Iowa Code section provides, in relevant part:

5 Page Criminal and civil penalties If any licensee, wine permittee, beer permittee, or employee of a licensee or permittee is convicted or found in violation of section , subsection 2, paragraph "h", the administrator or local authority shall, in addition to criminal penalties fixed for violations by this section, assess a civil penalty as follows: a. A first violation shall subject the licensee or permittee to a civil penalty in the amount of five hundred dollars. Failure to pay the civil penalty as ordered under section shall result in automatic suspension of the license or permit for a period of fourteen days. Pursuant to Iowa Code sections (3)(a), the mandatory administrative sanction for a first offense sale to an underage person is a $500 civil penalty. A criminal conviction is not a prerequisite to suspension, revocation or imposition of a civil penalty. Iowa Code section (1)(c)(2009). ORDER IT IS THEREFORE ORDERED, pursuant to Iowa Code sections (3)(a) and (4), that for a first offense sale to an underage person occurring on August 25, 2009, Codycal, Inc., d/b/a Greenbriar Restaurant & Bar, Liquor License No. LC-20914, shall pay a civil penalty of five hundred dollars ($500) to the Alcoholic Beverages Division within thirty (30) days of the issuance of this proposed decision. Pursuant to the administrative rules of the division, any adversely affected party may appeal a proposed decision to the Administrator of the Alcoholic Beverages Division within thirty (30) days after issuance of the proposed decision. In addition, the Administrator may initiate review of a proposed decision on the Administrator's own motion at any time within thirty (30) days following the issuance of a proposed decision. 185 IAC 10.27(1) and (2). Requests for review shall be sent to the Administrator of the Alcoholic Beverages Division, 1918 S.E. Hulsizer, Ankeny, IA Unless otherwise ordered, each appealing party may file exceptions and briefs within thirty (30) days of the

6 Page 6 notice of appeal or order for review. Within thirty (30) days thereafter, any party may file a responsive brief. The Administrator may shorten or extend the briefing period as appropriate. The Administrator may resolve the appeal on the briefs or provide an opportunity for oral argument. 185 IAC 10.27(6). The administrator may affirm, reverse or modify the proposed decision. A party who is adversely affected by the proposed decision shall not be deemed to have exhausted administrative remedies unless the adversely affected party files a request for review of the proposed decision within the time provided and the Administrator has reviewed the proposed decision and has affirmed, reversed, or modified the proposed decision. Dated this 12 th day of October, Margaret LaMarche Administrative Law Judge Iowa Department of Inspections and Appeals Division of Administrative Hearings Wallace State Office Building-Third Floor Des Moines, Iowa cc: See attached mailing list

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