Plowman v. Arizona State Liquor Bd.
| Decision Date | 09 October 1986 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 152 Ariz. 331,732 P.2d 222 |
| Parties | Richard Y. PLOWMAN, and Concordaunt, Inc., Plaintiffs/Appellees, v. ARIZONA STATE LIQUOR BOARD, Arizona Department of Liquor Licenses and Control, et al., Defendants/Appellants. 5735. |
| Court | Arizona Court of Appeals |
The appellees, Richard Plowman and Concordaunt, Inc., are the holders of a Class 6 Arizona liquor license and operate an establishment in Tucson known as The Fine Line. They were charged in two different complaints with 23 counts of violations of Title 4, A.R.S. A panel of three members of the Arizona State Liquor Board heard evidence purporting to prove these allegations and found 20 of them to be true. Revocation of the license was recommended and ordered by the Board but subsequently stayed by the superior court. The decision of the panel was appealed to the superior court pursuant to A.R.S. §§ 4-211 and 12-901. After a hearing and review of the administrative record, the court entered a judgment which: 1) reversed all of the panel's findings on the 20 counts, 2) found that the penalty of revocation was excessive, and 3) remanded to the board for further proceedings.
In this appeal by the liquor board, the trial court's decision as to some of the counts is conceded. As a result, we are concerned only with the following charges in Complaint # 128-85 (amended):
COUNT 4 On numerous occasions Mr. Plowman allowed Mr. Hudson, a person under the age of 19 to remain in the licensed premises without being accompanied by a parent or legal guardian, in violation of A.R.S. Section 4-244(23).
COUNT 5 On or about the 27th day of October 1984, at approximately 12:21 a.m., you furnished spirituous liquor to Joseph Pickman, a person under the age of 19 years, in violation of A.R.S. Section 4-244(9).
COUNT 6 On or about the 27th day of October 1984, you neglected to procure proper proof of age of Joseph Pickman, in violation of A.R.S. Section 4-241(A).
COUNT 7 On or about the 27th day of October 1984, at approximately 12:21 a.m., you allowed Joseph Pickman, a person under the age of 19 years to remain in the licensed premises without being accompanied by a parent or legal guardian, in violation of A.R.S. Section 4-244(23).
COUNT 8 On or about the 27th day of October 1984, at approximately 12:21 a.m., you allowed Joseph Pickman, a person under the age of 19 years to consume spirituous liquor on your licensed premises, in violation of A.C.R.R. R4-15-234.
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COUNT 10 On or about the 27th day of October 1984, at approximately 12:30 a.m. you allowed Rodolfo Romero, a person under the age of 19 years to remain in the licensed premises without being accompanied by a parent or legal guardian, in violation of A.R.S. Section 4-244(23).
COUNT 11 On or about the 27th day of October 1984, at approximately 12:15 a.m., you furnished spirituous liquor to John Diener, a person under the age of 19 years, in violation of A.R.S. Section 4-244(9).
COUNT 12 On or about the 27th day of October 1984, you neglected to procure the proper proof of age of John Diener, in violation of A.R.S. Section 4-241(A).
COUNT 13 On or about the 27th day of October 1984, at approximately 12:15 a.m., you allowed John Diener, a person under the age of 19 years to remain in the licensed premises without being accompanied by a parent or legal guardian, in violation of A.R.S. Section 4-244(23).
COUNT 14 On or about the 27th day of October 1984, at approximately 12:15 a.m., you allowed John Diener, a person under the age of 19 years to consume spirituous liquor on your licensed premises, in violation of A.C.R.R. R4-14-234.
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COUNT 16 On or about the 27th day of October, 1984, at approximately 12:45 a.m., you allowed Stephanie Coderre, a person under the age of 19 years, to remain in the licensed premises without being accompanied by a parent or legal guardian in violation of A.R.S. § 4-244(23).
COUNT 17 On or about the 26th day of October 1984, at approximately 11:30 p.m., you allowed an intoxicated person, Jeff Polewtewa to remain on the licensed premises, in violation of A.R.S. Section 4-244(14).
COUNT 3 On or about the 19th day of April 1984, at approximately 9:35 p.m., you allowed Marilyn Potucek, a person under the age of 19 years to remain in the licensed premises without being accompanied by a parent or legal guardian, in violation of A.R.S. Section 4-244(23).
COUNT 4 On or about the 19th day of April 1984, at approximately 9:35 p.m., you furnished spirituous liquor to Marilyn Potucek, a person under the age of 19 years, in violation of A.R.S. Section 4-244(9).
COUNT 5 On or about the 19th day of April 1984, you neglected to procure the proper proof of age of Marilyn Potucek, in violation of A.R.S. Section 4-241(A).
A.R.S. § 4-244 provides in pertinent part that it is unlawful:
9. Except as provided in paragraphs 10 and 11 of this section, for a licensee or other person to sell, furnish, dispose of or give, or cause to be sold, furnished, disposed of or given, to a person under the age of nineteen years, or for a person under the age of nineteen years to buy, receive, have in possession or consume, spirituous liquor. The provisions of this paragraph shall not prohibit the employment of persons who are at least sixteen years of age to check out, if supervised by a person on the premises who is at least nineteen years of age, package or carry merchandise, including spirituous liquor, in unbroken packages, for the convenience of the customer of the employer, if the employer sells primarily merchandise other than spirituous liquor.
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14. For a licensee or other person to serve, sell or furnish spirituous liquor to an intoxicated or disorderly person, or for a licensee or employee of the licensee to allow or permit an intoxicated or disorderly person to come into or remain on or about the premises, except that a licensee or an employee of the licensee may allow an intoxicated person to remain on the premises for a period of time not to exceed thirty minutes after the state of intoxication is known or should be known to the licensee in order that a nonintoxicated person may transport the intoxicated person from the premises.
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23. For an on-sale retail licensee to allow a person under the age of nineteen years to remain in an area on the licensed premises, during those hours in which its primary use is the sale, dispensing or consumption of alcoholic beverages, after the licensee, or his employees, know or should have known that the person is under the age of nineteen years. This paragraph does not apply if the person under the age of nineteen years is accompanied by a spouse of legal drinking age, parent or legal guardian or is an on-duty employee of the licensee.
Under A.R.S. § 4-241:
A. A licensee, employee or other person who questions or has reason to question whether or not a person ordering, purchasing, attempting to purchase or otherwise procuring or attempting to procure the serving or delivery of spirituous liquor is nineteen years old shall require the person to exhibit an identification card and on a card to be retained by the licensee to sign his name, the date, and the number of such identification card. Such identification card shall include an unexpired driver's license issued by any state, provided such license includes a picture of the licensee, an identification license issued pursuant to § 28-421.01 or an armed forces identification card.
Finally, the regulations pertaining to liquor licenses provide:
No licensee shall permit any person on or about his licensed premises to give or furnish any spirituous liquor to any person under the age of nineteen years or permit any person under the age of nineteen years who has any spirituous liquor in his possession or is under the influence of intoxicating liquor to come into or remain in and about his licensed premises.
A.C.R.R. R4-15-234 (Oct. 8, 1982).
The judgment explains the trial court's reasons for reversing the order as to some of the counts. The reason given for reversing the panel's findings on counts 5 through 8 and 11 through 14 in Complaint # 128-85 (Amended) was that they
Joseph Pickman, the person named in counts 5 through 8, testified that the second time he and John Diener, named in counts 11 through 14, entered the night club that night that they "sneaked in." He testified that they had been in the club, left, and when they returned were asked for identification and, since they had none, they "hung around in the parking lot, stood outside, and when the doormen were distracted, we ran in." Although this testimony is surely believable, when John Diener was cross-examined concerning that entry we find the following:
Q (By Mr. Higgins): In fact, you tried to get into the Fine Line three times that night; did you not?
A Yes.
Q You went there once, you got in, you left, you went back, and you were carded; weren't you?
A Yes.
Q And you left and you and your friends came back a third time and waited until the security officer's back was turned and then you snuck in, didn't you?
A No.
Q You didn't?
A We went right through the front door.
Q Right through the front. Were you with Joseph Pickman?
A Yes, I was.
Q And you didn't sneak in the third time when the security officer's back was turned?
A No, we just walked right in the front door.
Apparently the liquor board panel believed this testimony rather than that given by Pickman. That is its...
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