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 Amitoj, Inc. ) DIA NO. 12ABD021 d/b/a Site ) 1301 Main Street ) ) PROPOSED DECISION ) Beer Permit No. BC ) On February 28, 2012, the Iowa Alcoholic Beverages Division (Division) issued an Order to Amitoj, Inc. d/b/a Site (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. The hearing was held on November 26, The licensee appeared through its owner, Darbara Singh, and was represented by attorney Curtis Dial. Assistant Attorney General John Lundquist represented the Division. THE RECORD The record includes the Notice of Appeal, Notice of Hearing, Proof of Service, testimony of Annie Adamovicz and Dawn Brownlee; and Division Exhibits 1-7 (See Exhibit Index for description). FINDINGS OF FACT Darbara Singh is the 100% owner of Amitoj, Inc., d/b/a Site (licensee), which is located at 1301 Main Street in Keokuk, Iowa. The licensee holds Beer Permit No. BC for this location. (Exhibit 7) On January 10, 2011, one of the licensee s employees sold an alcoholic beverage to a person who was under 21 years of age. The employee pled guilty to a violation of Iowa Code section (2)(h) on March 8, On March 14, 2011,

2 Page 2 the Division issued an Order requiring the licensee to pay a $500 civil penalty for a first violation of Iowa Code section (2)(h). (Exhibit 5) The licensee paid the $500 civil penalty on or about March 28, (State Exhibit 6; Testimony of Annie Adamovicz). On December 20, 2011, one of the licensee s employees (Samantha Stark) sold a six pack of beer to an underage person (Date of Birth: 2/5/92) during a compliance check conducted by the Iowa State Patrol at the licensee s premises. The Iowa Incident Report documents that Ms. Stark asked the underage person for identification, and he handed her his Iowa driver s license. Ms. Stark looked at the identification, remarked not by much and sold the beer to him. A state trooper, Andy Ward, was inside the store with the underage person and prepared the incident report. Trooper Ward later returned to Site and issued a citation to Ms. Stark for providing alcohol to an underage person, in violation of Iowa Code section (2)(h). (Exhibit 1) On February 8, 2012, Samantha Stark pled guilty to violating Iowa Code section (2)(h) and was fined $500 plus surcharges and court costs. (Exhibit 3; Testimony of Annie Adamovicz). The Division issued the February 28, 2012 Order after receiving a certified copy of Ms. Stark s conviction from the court. The $1500 civil penalty and thirty (30) day license suspension imposed by the Division s Order is the mandatory penalty for a second violation of Iowa Code section (2)(h) within a period of two years. (Testimony of Annie Adamovicz; Exhibits 2, 3) Dawn Brownlee has been employed by the licensee as a technical/training clerk for approximately three years. Ms. Brownlee trains all new employees on the proper procedures for operating the cash register and for checking customer identification. Employees are required to enter the customer s birthdate into the register prior to any alcohol sale. The register will not allow the sale to be made if the date entered in the register is for an underage person. Ms. Brownlee has not checked the cash register records for December 20, 2011 to see if Ms. Stark entered the correct birth date for this sale. (Testimony of Dawn Brownlee) Samantha Stark was employed by the licensee for a short period of time. Ms. Stark quit her employment without notice right before Christmas and never notified her employer that she had been cited for selling alcohol to an underage person. Dawn Brownlee did not know about Ms. Stark s citation or her guilty

3 Page 3 plea until the licensee received the Division s February 28, 2012 Order imposing administrative sanctions for a second violation of Iowa Code section (2)(h). (Testimony of Dawn Brownlee) I. The Violation CONCLUSIONS OF LAW 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. 1 The Iowa Code defines "legal age" as twenty-one years of age or more. 2 A violation of 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. 3 The preponderance of the evidence established that the licensee s employee, Samantha Stark, pled guilty to a criminal violation of Iowa Code section (2)(h), based on her December 20, 2011 sale of beer to an underage person. Iowa Code section (2)(h) is the statutory provision prohibiting sales of alcohol by person s employed by licensed liquor establishments. In addition to her guilty plea, there is additional credible evidence in the record to establish Samantha Stark s employment by the licensee on December 20, The Iowa Incident Report prepared by the state trooper documents his observation that Ms. Stark was working on the licensed premises and made the sale to the underage person on December 20, The licensee s only witness conceded that she trained Ms. Stark and that Ms. Stark was employed by the licensee until right before Christmas. The licensee did not submit any evidence to dispute its employment of Samantha Stark on December 20, Iowa Code section (2)(h)( 2011)(emphasis supplied). 2 Iowa Code section 123.3(24)( 2011 Supp.) IAC 4.8

4 Page 4 The preponderance of the evidence further established that another employee of the licensee was previously convicted for selling an alcoholic beverage to an underage person on January 10, The licensee was fined $500 for this prior violation. The licensee s second violation of Iowa Code section (2)(h) on December 20, 2011 occurred less than two years after the first violation on January 10, II. Sanction Iowa Code section provides, in relevant part: Criminal and civil penalties If any licensee, or employee of a licensee 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. c. A third violation within three years shall subject the licensee or permittee to a sixty-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..

5 Page 5 (emphasis supplied). The use of the word shall in a statute imposes a duty. 4 The legislature has mandated that the administrative sanction for a second offense sale to an underage person within a period of two years is a $1500 civil penalty and a 30 day license suspension. The Administrator was legally required to impose these sanctions after the licensee s employee was convicted of violating Iowa Code section (2)(h) on December 20, The guilty plea is conclusive evidence that the violation occurred, and it may not be collaterally attacked or challenged through an administrative proceeding. The Iowa Supreme Court has held that Iowa Code section (3) was written to make the conviction of the licensee s employee the prohibited act upon which the license revocation is based. The Court rejected the suggestion that a licensee should be accorded the right of participation in its employee s criminal proceeding as an element of due process in the license suspension proceedings. 5 ORDER IT IS THEREFORE ORDERED that the February 28, 2012 Order issued to Amitoj, Inc. d/b/a Site by the Administrator of the Alcoholic Beverages Division is hereby AFFIRMED. The licensee shall pay the $1500 civil penalty to the Division within thirty (30) days of the date that this proposed decision becomes final. The 30 day license suspension shall commence on Monday, January 7, 2013 at 6:00 a.m. and shall end on Wednesday, February 6, 2013 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 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). 4 Iowa Code section 4.1(30)(2011). 5 Randall s International Inc. d/b/a Randall Foods v. Hearing Board of the Iowa Beer & Liquor Control Department, 429 N.W.2d 163, 165(Iowa 1988). Iowa Code section (3) was later amended to authorize mandatory administrative sanctions for employee violations as well as employee convictions but this statutory change does not alter the relevance of the Randall s decision to the facts of this case.

6 Page 6 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 4th day of December, Margaret LaMarche Administrative Law Judge Iowa Department of Inspections and Appeals Division of Administrative Hearings Wallace State Office Building-Third Floor cc: See attached mailing list

7 Page 7 Witnesses: Trooper Ward ISP - Dist Grand Avenue, Suite 201 Mount Pleasant, Iowa Copies to: Margaret LaMarche Administrative Law Judge Department of Inspections & Appeals Administrative Hearings Division Wallace State Office Bldg-3 rd Fl., 502 E 9 th John Lundquist Assistant Attorney General Department of Justice Hoover State Office Building Lt. Dean Jalas ISP, District # S Grand, Suite 201 Mount Pleasant, Iowa City Clerk City Hall PO Box 400 Steve Bogle Iowa Lottery 2323 Grand Avenue Des Moines, Iowa Steven Mandernach Social Gaming Unit Lucas State Office Bldg. Karen Freund Licensing/Regulatory Bureau Chief Iowa Alcoholic Beverages Division 1918 SE Hulsizer Ankeny, Iowa Curtis Dial Attorney at Law 401 Main St., Suite 5 Chief Tom Crew Keokuk Police Dept Johnson St.