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. L Ohana, Inc. ) DIA NO. 15ABD006 d/b/a Ohana Steak House ) 2900 University Avenue, Suite A ) West Des Moines, Iowa ) PROPOSED DECISION ) Liquor License No. LC ) On January 16, 2015, the city of West Des Moines (Local Authority) issued an Order to Ohana, Inc. d/b/a Ohana Steak House (Licensee). The Order imposed a $1500 civil penalty and a thirty (30) day license suspension for a second violation of Iowa Code section (2)(h) (sale of alcohol to an underage person) within a period of two years. The licensee filed a timely appeal to the Iowa Alcoholic Beverages Division (Division). The hearing was held on March 24, 2015 before the undersigned administrative law judge. The licensee was represented by attorney Thomas J. Berg. Assistant City Attorney Greta Truman represented the local authority. THE RECORD The record includes the Notice of Appeal, Notice of Hearing, Proof of Service, testimony of West Des Moines Police Detective Kraig Kincaid, West Des Moines Police Officer Ken Brock, Licensee General Manager Marco Vizcarra, and Brandon Glenn. The record also includes local authority Exhibits A-F, H-I and Licensee Exhibits 1-3. FINDINGS OF FACT Ohana Inc. is the corporate owner of Ohana Steak House, which is located at 2900 University Avenue Suite A, West Des Moines, Iowa 50266, and which has been issued Liquor License No. LC by the Division. (Local Authority Exhibit A)

2 Page 2 On December 7, 2012, one of the licensee s employees (Nathan Robinson) sold an alcoholic beverage to a person who was under 21 years of age. The employee was adjudicated guilty of a violation of Iowa Code section (2)(h) on January 13, On February 20, 2013, the local authority issued an Order requiring the licensee to pay a $500 civil penalty for a first violation of Iowa Code section (2)(h). (Local Authority Exhibit H, Exhibit I, attachment B). Ohana Steak House management immediately terminated Nathan Robinson s employment following this underage sale because Mr. Robinson violated company policy when he failed to ask the customer for identification. Ohana Steak House management requires all servers to request identification from any customer who looks under the age of 35. (Testimony of Marco Vizcarra) On November 14, 2014, the West Des Moines Police Department conducted an undercover alcohol compliance check at 65 licensed liquor establishments in West Des Moines. The purpose of the compliance checks was to determine if the establishments would sell alcoholic beverages to underage persons. An undercover police officer accompanied an underage person into each of the establishments. A photograph was taken of the underage person and a copy was made of their valid Iowa driver s license. The underage persons who agreed to participate in the compliance checks were given money for the attempted purchases of alcoholic beverages. If they were successful in making a purchase, they were told to go out to the officer who was waiting in a car outside and begin writing a witness statement. The underage persons were all students at Des Moines Area Community College. (Testimony of Detective Kraig Kincaid; Officer Ken Brock) JH was one of the underage persons participating in the compliance checks on November 14, JH had a vertically oriented driver s license, which at a minimum indicated that he was under the legal age when the license was issued. The driver s license included his date of birth, which was 06/26/1996. On the day of the compliance check, JH was 18 years old. There was a red horizontal banner next to JH s photo on the driver s license. UNDER 21 UNTIL 6/26/2017 was printed on the red banner. As pointed out by the licensee at hearing, JH is 6 03 tall, according to his driver s license. JH s appearance in his photograph, which was taken on the day of the compliance check, was consistent with the appearance of a person under the age of 21. (Local Authority Exhibits B, C; Testimony of Detective Kraig Kincaid)

3 Page 3 On November 14, 2014 at approximately 5:20 p.m., 18 year old JH entered Ohana Steak House accompanied by West Des Moines Police Detective Kraig Kincaid. JH sat down at the bar and ordered a Budweiser Light beer from bartender Brandon Glenn. Brandon Glenn asked JH for identification before serving him the beer. JH produced his driver s license. Mr. Glenn looked at the driver s license and then looked at a tear-off daily calendar that was kept near the bar. The Alcoholic Beverages Division provided the calendar to all licensed retailers. The center of the calendar page had the current date (Friday November 14) in a green circle. The left upper quadrant of the calendar page stated: BORN AFTER THIS DATE IN 1993 with an arrow pointing to the words NO ALCOHOL in the right upper quadrant. The left lower quadrant of the calendar page stated: NO TOBACCO with an arrow pointing to the words BORN AFTER THIS DATE IN (Testimony of Kraig Kincaid; Brandon Glenn; Marco Vizcarra; Licensee Exhibit 1) After reviewing the driver s license and the calendar, Brandon Glenn sold and served the Budweiser Light beer to JH. JH paid for the beer with a $10 bill and received $7 in change, along with a receipt. The entire transaction was witnessed by Detective Kraig Kincaid who was approximately 8-10 feet away from JH. After the transaction was completed, JH exited the establishment and returned to the police car where Officer Ken Brock was waiting for him. Officer Brock gave JH the clipboard so he could write his witness statement. After JH finished the statement, Officer Brock watched JH sign the statement. Officer Brock completed an Iowa Incident Report concerning the sale. (Testimony of Officer Ken Brock; Local Authority Exhibits D, E, F) Following the sale, Detective Kincaid approached bartender Brandon Glenn and told him that he had sold alcohol to an underage person. Mr. Glenn was very upset, and he called his manager over to the bar. Mr. Glenn retrieved the $10 bill used to purchase the alcohol from the cash register and gave it to Detective Kincaid. Detective Kincaid took a photograph of the beer, the receipt, the $10 bill, the $3 in change given to JH, JH s driver s license, and Mr. Glenn s driver s license. Brandon Glenn was issued a criminal citation for selling alcohol to an underage person, in violation of Iowa Code section (2)(h). (Testimony of Detective Kraig Kincaid; Brandon Glenn; Marco Vizcarra; Local Authority Exhibit D) Marco Vizcarra has been the general manager of Ohana Steak House for 13 years. Mr. Vizcarra was present at Ohana Steak House on November 14, 2014 and was

4 Page 4 working at the podium greeting guests. When JH walked in, Mr. Vizcarra could see that he looked young. Mr. Vizcarra looked over to the bartender, Brandon Glenn, and made a hand gesture to alert Mr. Glenn that he needed to be sure to card the customer. Mr. Glenn saw Mr. Vizcarra s hand gesture but testified that he would have carded JH anyway because he looked young. After JH went up to the bar, Mr. Vizcarra watched the sale to be sure that Mr. Glenn followed his instructions, and he observed Mr. Glenn request JH s identification, review the identification, look at the calendar, and then look at the identification again prior to making the sale. At hearing, Mr. Glenn testified that he saw the 1996 date on both the calendar and the driver s license and just messed up the math. (Testimony of Marco Vizcarra; Brandon Glenn) Following the sale on November 14, 2014, Ohana Steak House took several steps to prevent any future violations. In order to avoid future errors by bartenders, Marco Vizcarra blacked out that date on the calendars provided by the Division that indicates when customers would be legal to purchase tobacco because Ohana does not sell tobacco products. On December 1, 2014, all Ohana employees who regularly serve alcohol completed TIPS (Training for Intervention ProcedureS) training through a certified trainer. On December 26, 2014, Ohana Steak House installed an identification card reader with magnetic swipe and bar coder readers, which keeps a log of every identification card that is scanned. (Testimony of Marco Vizcarra; Licensee Exhibits 2, 3) Brandon Glenn has been employed by Ohana Steak House for approximately four years but had only been working as a bartender for 4-5 months at the time of this sale. He worked approximately hours a week. Ohana Steak House does not have a lot of young customers, and Mr. Glenn estimated that he only had to request identification from 3-4 customers a night. Brandon Glenn was not terminated following this sale because he followed procedures and asked the customer for identification, but he was no longer allowed to work as a bartender or to serve alcohol. Mr. Glenn is currently working in the kitchen. (Testimony of Marco Vizcarra; Branson Glenn) On January 15, 2015, Brandon Glenn pled guilty to an amended charge of violating Iowa Code section (2)(j) by permitting criminal activity on the premises. Mr. Glenn was fined $250, plus surcharge and court costs. (Local Authority Exhibit I, attachment A)

5 Page 5 I. Applicable Statutes and Rules CONCLUSIONS OF LAW The administrator of the Alcoholic Beverages Division (Division) and local authorities 1 are authorized by statute to revoke, suspend, or impose civil penalties on liquor control licensees or beer permittees for violations of Iowa Code chapter A criminal conviction is not a prerequisite to suspension, revocation or imposition of a civil penalty. 3 A license sanction may be based on a finding of violation made following an administrative hearing. 4 A liquor control licensee or a wine or beer permittee whose license or permit has been suspended, revoked or a civil penalty imposed by a local authority for a violation of Iowa Code chapter 123 may appeal the suspension, revocation, or civil penalty to the administrator of the Alcoholic Beverages Division (Division). 5 A person or club holding a liquor control license or retail wine or beer permit, and the person's or club's agents or employees, shall not 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 ascertain whether the person is under legal age, to consume any alcoholic beverage, wine, or beer. 6 The Iowa Code defines "legal age" as twenty-one years of age or more. 7 A violation of Iowa Code chapter 123 by any employee, agent, or servant of a 1 A local authority is the city council or county board of supervisors empowered by Iowa Code chapter 123 to approve or deny liquor license and beer permit applications or take other actions reserved to them by chapter 123. Iowa Code section 123.3(26)(2013,2015). 2 Iowa Code sections (1)(a), (2), (3) (2013, 2015). 3 Iowa Code section (1)(c)(2013, 2015).; Jim O Inc. d/b/a Ernie s Avenue Tavern v. City of Cedar Rapids and Iowa Alcoholic Beverages Division, 587 N.W.2d 476, 479 (Iowa 1998)(holding that the agency was not prevented from enforcing a civil penalty against the licensee for a violation of Iowa Code section (2)(h) when the bartender pled guilty to a violation of Iowa Code section A.) 4 Iowa Code sections (3); (1)(a)(2013, 2015). 5 Iowa Code section (9)(2013, 2015). 6 Iowa Code section (2)(h)(2013, 2015)(emphasis supplied). 7 Iowa Code section 123.3(24)( 2013, 2015).

6 Page 6 licensee or permittee shall be deemed to be the act of the licensee or permittee and shall subject the license to suspension or revocation. 8 Iowa Code section provides, in relevant part: 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. b. A second violation within two years shall subject the licensee or permittee to a thirty-day suspension and a civil penalty in the amount of one thousand five hundred dollars. e. For purposes of this subsection: (1) The date of any violation shall be used in determining the period between violations.. (emphasis supplied). The use of the word shall in a statute imposes a duty. 9 II. Analysis The Iowa Supreme Court has recognized that, at a very minimum, the exercise of reasonable care to ascertain the age of a person, as required by Iowa Code section (2)(h), requires a licensee s employees to request identification from patrons prior to selling alcohol to them unless their age is known or reasonably IAC Iowa Code section 4.1(30)(2013, 2015).

7 Page 7 beyond question. 10 In addition, the Alcoholic Beverages Division has consistently held that the reasonable care standard requires more than just requesting identification. Licensees and their employees must carefully examine the customer s photo identification to verify that the person presenting the ID is in fact over the age of 21. A careless review of the identification is not reasonable care. 11 The preponderance of the evidence established that Brandon Glenn, an employee of the licensee, failed to exercise reasonable care when he sold an alcoholic beverage to an 18 year old customer, JH, on November 14, JH had an appearance that was consistent with that of a person under the legal age. The fact that JH was quite tall has absolutely no bearing on whether he appeared under or over the legal age. Mr. Glenn properly requested identification from JH, who produced his valid Iowa driver s license. JH s driver s license was vertically formatted, which indicates at a minimum that JH was under the legal age when the license was issued to him. In addition, the driver s license had JH s date of birth, 06/26/1996, and the statement UNDER 21 UNTIL 06/26/2017 on a red banner next to JH s photograph. A careful examination of this driver s license would have alerted Brandon Glenn to the fact that JH was not yet 21 years of age. Brandon Glenn compared the birthdate on JH s driver s license to a tear-off calendar with the relevant birth years for legal sales of both alcohol and tobacco. Although Ohana Steak House does not even sell tobacco products, Mr. Glenn apparently relied on the birth year for the legal purchase of tobacco products (1996) rather than the relevant birth year for the legal purchase of alcohol (1993) and decided that he could sell and serve JH the beer that he requested. A bartender who was exercising reasonable care would have determined that JH was under the legal age and would have refused the sale. The sale of beer to JH on November 14, 2014 was in clear violation of Iowa Code section (2)(h). 10 Jim O. Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 478 (Iowa 1998). 11 See, e.g. Administrator s Final Decision in D and D , p. 2 issued on 12/24/15 ( The ABD has consistently held that the reasonable care standard requires more than just requesting an ID. Licensees and their employees must thoroughly examine the purchaser s ID to verify that the person is the person pictured in the ID and that they are of legal age A miscalculation or careless review of a driver s license constitutes a failure to exercise reasonable care. ) See also, Motif, Ltd. d/b/a Bo-James v. Iowa Department of Commerce Alcoholic Beverages Division No , 2011 WL (Iowa App. 2011).

8 Page 8 Initially, Mr. Glenn was issued a criminal citation for violating Iowa Code section (2)(h), but he was later allowed to plead guilty to violating Iowa Code section (2)(j) (allowing criminal activity on the licensed premises). Mr. Glenn s conviction under Iowa Code section (2)(j) does not preclude the local authority from imposing the statutory administrative sanctions against the licensee for a violation of Iowa Code section (2)(h), so long as the licensee was afforded the opportunity for an administrative hearing on this issue. The preponderance of the evidence also established that one of the licensee s employees (Nathan Robinson) was convicted on August 28, 2013 for selling alcohol to an underage person on December 7, 2012, in violation of Iowa Code section (2)(h). The licensee was fined $500 for this first violation. The licensee s second violation of Iowa Code section (2)(h) occurred on November 14, 2014, which unfortunately was less than two years after the first violation. The legislature has mandated that the administrative sanction for a second violation of Iowa Code section (2)(h) within a period of two years is a $1500 civil penalty and a 30 day license suspension. The statute requires the imposition of these sanctions after the licensee s employee has been found in violation of Iowa Code section (2)(h), based on a sale that occurred on November 14, The undersigned has no authority to mitigate the administrative sanction based on the remedial actions taken by the licensee to prevent future violations. ORDER IT IS THEREFORE ORDERED that the January 16, 2015 Order issued to Ohana, Inc., d/b/a Ohana Steak House by the city of West Des Moines is hereby AFFIRMED. The licensee shall pay the $1500 civil penalty imposed in that Order within thirty (30) days of the date that this proposed decision becomes final. If this proposed decision is not appealed and becomes final, the 30 day license suspension shall commence on Monday, June 1, 2015 at 6:00 a.m. and shall end on Wednesday, July 1, 2015 at 6:00 a.m. The licensee shall not sell any alcoholic beverages during the period of suspension. 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

9 Page 9 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 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 14th day of April, 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

10 Copies to: Margaret LaMarche Administrative Law Judge Department of Inspections & Appeals Wallace State Office Building Des Moines, Iowa Jason Wittgraf Greta Truman Assistant City Attorney 4200 Mills Civic Parkway West Des Moines, Iowa Lt. Ritzman ISP, District #1 260 N.W. 48th Place Des Moines, Iowa Chief Shaun Ladue West Des Moines Police Dept. 250 Mills Civic Parkway West Des Moines, Iowa John Lundquist Assistant Attorney General Department of Justice Hoover State Office Building Des Moines, Iowa Steve Bogle Iowa Lottery 2323 Grand Avenue Des Moines, Iowa Steven Mandernach Social Gaming Unit Lucas State Office Bldg. Des Moines, Iowa Thomas J. Berg Attorney at Law 2423 Ingersoll Avenue Des Moines, Iowa City Clerk City Hall 4200 Mills Civic Parkway West Des Moines, Iowa 50265