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 Ranger Enterprises, Inc. ) DIA NO. 12ABD002 d/b/a Deadwood, The ) 6 South Dubuque ) Iowa City, Iowa ) PROPOSED DECISION ) Liquor License No. LC ) On February 23, 2012, the Iowa Department of Public Safety (DPS) filed an administrative hearing complaint against Ranger Enterprises, Inc. d/b/a The Deadwood (licensee). The hearing complaint alleged that on or about October 20, 2011, 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 the undersigned administrative law judge on March 26, 2012 at 1:00 p.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 Dennis Mitchell. THE RECORD The record includes the Hearing Complaint, Notice of Hearing, the testimony of Iowa City Police Officer Adam Krack, James Peter Bell, Alexia Weaver, and Benjamin Mummey. The record also includes DPS Exhibits 1-4 and Respondent Exhibits A-I (See Exhibit Index for description; Exhibit I is a sketch of the exterior of The Deadwood) FINDINGS OF FACT Ranger Enterprises, Inc., d/b/a The Deadwood is a licensed liquor establishment (Liquor License LC-24300) located at 6 South Dubuque Street in Iowa City, Iowa.

2 Page 2 James Bell is the 100% owner of Ranger Enterprises, Inc. The Deadwood has been an over-21 bar for a number of years. Mr. Bell has an extensive training program for all of his employees, which includes review of a detailed training manual. The training stresses the importance of requesting identification from all patrons who could be underage and teaches methods for verifying if identification is authentic. Employees are told they can be fired for serving underage persons or for allowing underage persons inside the establishment. (Testimony of James Bell; Alexia Weaver; Benjamin Mummey; DPS Exhibit 4; Licensee Exhibit A). On Thursday, Friday, and Saturday nights, The Deadwood posts an employee at the door to check the identification of any person who appears to be under 35 years of age. On other evenings, the bartenders and servers are responsible for checking identification. Since 2007, the Iowa City Police Department has visited The Deadwood 47 times to check the premises for any underage persons in possession of alcohol, also known as P.A.U.L.A.s., but no citations have been issued. (Testimony of James Patrick Bell; Benjamin Mummey; Alexia Weaver; Licensee Exhibits B-H) On October 20, 2011, the Iowa City Police Department conducted an alcohol compliance check to determine whether licensed liquor establishments in Iowa City would sell alcohol to an underage person. Iowa City Police Officers Adam Krack and Matt Hansen participated in the compliance check. The officers were assisted by a 20-year old female college student (hereinafter AM ), who agreed to attempt to purchase alcoholic beverages under police supervision. (Testimony of Adam Krack; DPS Exhibit 1) An officer took photographs of AM just prior to the compliance check. The photographs were shown at hearing but were not submitted as exhibits. AM s appearance in these photographs was consistent with her age. AM was asked to empty her pockets, and she was searched to ensure that she only carried her valid Iowa driver s license and her cell phone. AM was told to show her valid driver s license if anyone asked her for identification and to give her true age if asked how old she was. (Testimony of Adam Krack; DPS Exhibit 3) The Iowa Department of Transportation issues vertical format driver s licenses to persons who are under the legal age. On October 20, 2011, AM had a vertical driver s license with the words Under 21 until 9/5/2012 printed on a red band

3 Page 3 next to her photograph. AM s date of birth (09/05/1991) also appeared in red near the top of her driver s license. (Testimony of Adam Krack; DPS Exhibit 3) On Thursday, October 20, 2011 at approximately 9:50 p.m., AM walked up to the entrance of The Deadwood where an employee, Alexia Weaver, was checking patron identification. Ms. Weaver was seated at a high table. There was adequate lighting, and Ms. Weaver also had a flashlight. Ms. Weaver had been employed by The Deadwood since the beginning of September 2011 and had reviewed the training manual. Prior to beginning her employment at The Deadwood, Ms. Weaver had worked for Hy-Vee for three years, where she was also trained in procedures for checking identification. (Testimony of Adam Krack; Alexia Weaver; James Bell; DPS Exhibits 1, 2; Licensee Exhibits A, I) AM showed her driver s license to Alexia Weaver and was allowed to enter the bar. Officer Krack followed behind AM at some distance. There was some inconsistency in Officer Krack s testimony concerning where he was standing when AM showed her ID to Weaver. Nevertheless, he consistently and credibly testified that he saw AM hand her ID to Ms. Weaver, saw AM get the ID back, and saw AM enter the bar. Officer Krack s testimony was also consistent with AM s written statement, which she prepared immediately following her visit to The Deadwood. Officer Krack was not close enough to hear any conversation between AM and Ms. Weaver or to verify by observation that AM in fact produced her valid Iowa driver s license. (Testimony of Adam Krack; DPS Exhibit 1-2, 2) After AM entered The Deadwood, Officer Krack presented his identification to Ms. Weaver and then entered The Deadwood. Officer Krack observed AM standing near the bar holding a Budweiser beer. Officer Krack took the beer from AM, and she pointed out the bartender who sold the beer to her. AM was then sent outside to meet with Officer Hansen and prepare her written statement. Officer Krack spoke to the bartender (Kerri Haught), who admitted serving the beer to AM. Ms. Haught told Officer Krack that she relied on the door person to check identification and assumed AM was over 21 since she was inside the bar. The officers supervisor advised them not to issue a citation to the bartender, since she relied on the door person to check identification. (Testimony of Adam Krack; DPS Exhibits 1, 2) The Deadwood has a maximum capacity of 218. According to Mr. Bell, a good Thursday night crowd is but as many as 300 people might go through

4 Page 4 the front door between 9:00 p.m. and 2:00 a.m. The evening of October 20, 2011 was unusually busy because a group of about law students were conducting a trivia quiz at The Deadwood. The employees were warned ahead of time to use extra caution in checking IDs because it would be a larger crowd with lots of new patrons. (Testimony of James Bell, Benjamin Mummey; Alexia Weaver) After AM left the bar, Officer Hansen spoke to Alexia Weaver and told her that an underage person had been allowed inside the bar. All of Deadwood s employees are required to contemporaneously document all significant incidents in the bar s log book. Ms. Weaver documented her conversation with Officer Hansen in the log book and wrote that she never saw who the girl was or what she looked like after the whole ordeal. (Testimony Alexia Weaver; Adam Krack; Licensee Exhibit B) Neither James Bell nor his manager, Benjamin Mummey, were present at The Deadwood at the time of the compliance check. (Testimony of James Bell; Benjamin Mummey) At hearing, Alexia Weaver had no recollection of her interaction with AM on October 20, After observing AM s photograph, Ms. Weaver agreed that she would have required AM to show identification. Ms. Weaver did not think that she would have allowed AM to enter the bar if AM had shown her valid Iowa driver s license. Ms. Weaver was also born in 1991, and she testified that she would have immediately recognized that AM was underage if she showed her vertical Iowa driver s license with a birth year of (Testimony of Alexia Weaver) Ms. Weaver continues to be employed by The Deadwood and is considered to be a reliable and conscientious employee. (Testimony of James Bell; Benjamin Mummey) The officers and AM visited licensed liquor establishments on October 20, Only four of the businesses sold an alcoholic beverage to AM. (Testimony of Adam Krack) CONCLUSIONS OF LAW Iowa Code section (2)(h)(2011) 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:

5 Page 5... 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 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)(2011). 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 preponderance of the evidence established that on October 20, 2011, the licensee s bartender sold and served a Budweiser beer to an underage person who was working in cooperation with law enforcement. Employee Alexia Weaver was posted at the door and was responsible for checking patron identification to ensure that everyone entering the bar was of legal age. When a licensee uses a system where the responsibilities of checking identification and selling and dispensing of alcoholic beverages are divided among employees, the licensee is ultimately responsible when the system fails and an underage person is sold an alcoholic beverage. The preponderance of the evidence also established that AM presented her valid Iowa driver s license, which clearly established that she was only 20 years of age. AM had been searched prior to the compliance check and was only allowed to carry her valid Iowa driver s license, money for her purchases, and her cell phone. AM s participation in the compliance check was supervised by two police officers. It is highly unlikely that AM would have hidden and produced false identification while participating in an underage compliance check under police supervision. In addition, only four of the establishments visited that evening sold to AM, which is also inconsistent with the suggestion that AM showed false identification. The preponderance of the evidence established that on October 20, 2011, the licensee s employees sold beer to an underage person, in violation of Iowa Code

6 Page 6 section (2)(h)(2011), by failing to exercise reasonable care to ascertain whether the person was under legal age. Ms. Weaver appeared to be a credible witness, and it seems unlikely that she would have intentionally allowed AM to enter The Deadwood if she realized that AM was underage. It is very likely, however, that Ms. Weaver failed to carefully examine AM s driver s license on October 20, If Ms. Weaver had conducted a reasonably careful examination of AM s driver s license, she would have recognized that AM was under age until 2012 and would have refused her entry. See Motif, Ltd., d/b/a Bo-James v. Iowa Department of Commerce-Alcoholic Beverages Division, 807 N.W.2d 158 (Table), 2011 WL (Text), Unpublished Disposition, Iowa App., September 21, (holding that there was sufficient evidence to support agency s finding that employee did not exercise reasonable care to ascertain if this specific patron was under the legal age, even though evidence supported finding that the employee was conscientious and that the bar took care to train its employees). 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. (emphasis added). 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)(2011).

7 Page 7 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 October 20, 2011, Ranger Enterprises, Inc. d/b/a The Deadwood, Liquor License No. LC , shall pay a civil penalty of five hundred dollars ($500) to the Alcoholic Beverages Division. The civil penalty shall be paid 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 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.

8 Page 8 Dated this 2 nd 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

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