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. A DIA NO. 09DOCBL104 Iowa City Fieldhouse Co., Inc. d/b/a The Field House 111 E. College Street Iowa City, Iowa PROPOSED DECISION Liquor License No. LC On July 28, 2009, the Iowa City City Council (local authority) voted to deny the renewal application filed by Iowa City Fieldhouse Co., Inc. d/b/a The Field House (licensee) for Liquor License No. LC based on the rate of PAULA (Possession of Alcohol Under Legal Age) citations on the licensed premises over the previous twelve months. The licensee filed a timely appeal and was granted timely filed status, which enables it to continue selling alcoholic beverages pending administrative appeals. A consolidated hearing was held before Administrative Law Judge Margaret LaMarche on October 23, 2009 at 1:00 p.m. This case was consolidated for hearing with a similar appeal filed by Etre, L.L.C., d/b/a Etc, Liquor License No. LC (Docket No. A ). Separate decisions are being issued for each licensee. The local authority was represented by Assistant City Attorney Eric Goers. The Field House was represented by attorney Matthew J. Adam. Etc. was represented by attorney Steven Ballard. The record was held open for a total of three weeks for the parties to submit simultaneous briefs and reply briefs. THE RECORD The record includes the electronic license renewal applications, Notices of Appeal and Acknowledgements; Notice of Hearing; Notice Rescheduling Administrative Hearing; testimony of the witnesses; the parties Briefs and Reply Briefs; Local Authority Exhibits 1 (with redactions), 2-4, 7-29 (See Exhibit List for description)and Field House Exhibits B (City Clerk Tally Sheet for IDs turned in by Licensee) and Exhibit C (Transcript of Local Authority Special Work Session

2 Page 2 on 2/9/09); and Etc. Exhibits , 104, , and 109 (See Exhibit Index for description). ISSUE Whether the local authority properly denied the renewal application filed by the licensee based on a finding that the licensee lacked the requisite good moral character to hold a liquor license because the licensee s PAULA rate exceeded 1.0, in violation of Resolution No , approved by the local authority on February 10, 2009? FINDINGS OF FACT 1. For a number of years, the local authority and the University of Iowa have been exploring various strategies and proposals to address and reduce both underage and over consumption of alcoholic beverages in Iowa City. The University is especially concerned about these issues because they can lead to negative legal consequences for students and can adversely affect students health, safety, and academic success. A number of the proposals considered and implemented by the local authority have focused on the licensed liquor establishments in Iowa City. (Testimony of Sarah Lux Hansen; Samuel Hargadine; Local Authority Exhibits 1, 14, 17-27) 2. State statutes and rules do not prohibit persons who are under 21 years of age from being present on premises that serve alcohol, although local authorities may impose such a prohibition through a local ordinance. 1 On August 1, 2003, the local authority adopted an ordinance 2 prohibiting persons under the age of 19 from being present on the premises of a licensed liquor establishment, whose primary business is the sale of alcohol, after 10:00 p.m. There was a subsequent ballot initiative to increase the age for entry to bars in Iowa City to 21, but the ballot initiative failed on November 6, Currently, persons age 19 and over are legally permitted to be present on the premises of licensed liquor establishments in Iowa City. However, the local authority continues to explore ways to prevent persons ages 19 and 20 from obtaining and consuming alcohol while present at a licensed liquor establishment. (Local Authority Exhibits 14-28) 1 See, generally, Iowa Code chapter 123 and (2), 185 IAC chapter 4, and Iowa City Ordinance

3 Page 3 3. In Iowa, all applicants for liquor licenses or beer permits must satisfy a statutory good moral character requirement. 3 Liquor license applications are first reviewed and approved (or denied) by the local authority, and then the Iowa Alcoholic Beverages Division reviews and approves (or denies) the applications. 4 The local authority has adopted an ordinance, 5 which requires the police chief to conduct an investigation to determine if an applicant for a liquor license is of good moral character and to make a recommendation to the local authority whether the liquor license application should be approved or denied. (Local Authority Exhibit 15, p. 2) a. On June 27, 2006, the local authority approved Resolution 6 No implementing a written policy for the review of initial applications and renewals of liquor licenses, beer permits, and wine permits. The policy was developed by the Chief of Police, in collaboration with the City Clerk and the City Attorney. The policy stated that the Police Chief (or his or her designee) would make an investigation to determine if the applicant is of good moral character, as that term is defined in State Code and the rules of the Iowa Alcoholic Beverages Division. The policy set out a nonexclusive list of factors to be considered in determining good moral character, which included but was not limited to: A pattern of convictions of persons within the establishment for PAULA (Possession of Alcohol Under Legal Age) and/or the local law prohibiting persons under 19 from being in licensed establishments, which suggests that the licensee or permittee does not have measures in place to adequately control access of persons under legal age to alcohol. The Police Chief or Designee shall review the establishment s rate of PAULAs per visit. A rate of 1.5 PAULAs per visit may be grounds for disapproval of the application. 3 Iowa Code section (1)(a); 123.3(26)(2009). 4 See Iowa Code section (2009). 5 Iowa City Ordinance Sec (B), see Field House Brief, p. 2, ftnte. 2, for full text. An ordinance is defined as a city law of a general and permanent nature. Iowa Code section 363.2(16)(2009). 6 A resolution or motion means a council statement of policy or a council order for action to be taken, but motion does not require a recorded vote. Iowa Code section 362.2(21)(2009).

4 Page 4 (Local Authority Exhibit 14, Attachment #5 (same as Etc. Exhibit 100), emphasis supplied) b. On February 10, 2009, the local authority adopted Resolution No , which rescinded Resolution No and approved Guidelines for Police Chief s Review of Applications for Initial and Renewal Liquor Licenses (Guidelines). The Guidelines represented a substantive revision of the local authority s prior policy concerning its consideration of PAULAs in the evaluation of good moral character. The Guidelines state, in relevant part: Citations issued on the premises for PAULA (Possession of Alcohol Under Legal Age) which indicate that the licensee or permittee knows that such activity is taking place on the premises and does not have measures in place to adequately control access of persons under legal age to alcohol. The Police Chief or Designee shall review the establishment s rate of PAULAs per visit. For renewals after July 1, 2009, the Police Chief will recommend denial for any establishment with a rate of 1.00 or more PAULAs per visit assuming at least 18 visits in the 12 month renewal period. A rate of less than 1.00 may be grounds for disapproval of the application. (Etc. Exhibit 101, emphasis supplied) Thus, the defined rate of citations requires the police chief to recommend denial of the application but the local authority retains its ultimate authority and discretion to grant or deny the application based on the individual circumstances. (Etc. Exhibit 101; Local Authority Exhibit 3) 4. The Guidelines approved by the local authority did not include a definition of the word visit. When discussing the proposed changes to the PAULA policy at a Special Work Session on February 9, 2009, one council member commented that it was going to be extremely important to to define visit as best we can, so that the industry can know what to expect (Field House Exhibit B, p. 27) Samuel Hargadine has been the Iowa City Police Chief for the last four years. At hearing, Chief Hargadine described a visit as when a police officer enters a licensed establishment for the purpose of ascertaining compliance with state or city liquor laws. In Chief Hargadine s opinion, if an officer s entry into a bar is for the purpose of getting a glass of water, using the bathroom, or even to

5 Page 5 respond to a reported fight, then that entry should not be counted as a visit to the bar for purposes of calculating the PAULA citation rate. Chief Hargadine has delegated responsibility for maintaining PAULA records and calculating PAULA rates to Sergeant Troy Kelsay, who is a supervisor in the records department. The police chief did not provide Sgt. Kelsay with a definition of the word visit for the purposes of the Guidelines. Sgt. Kelsay has been keeping PAULA records in a generally consistent manner since In calculating the PAULA rate, Sgt. Kelsay divides the number of PAULA citations by the number of police visits to the licensed premises over the previous 12 months, so long as there have been at least 18 visits. The frequency and number of visits to each bar in Iowa City varies. Chief Hargadine has commented that we go fishing where the fish are. (Local Authority Exhibits 7-13; Testimony of Troy Kelsay; Sam Hargadine) Sgt. Kelsay has always had a very clear idea of what he meant by visit, but concedes that his view may be different from Chief Hargadine s interpretation and that someone else may not be able to determine what constitutes a visit by examining the Guidelines. In calculating the PAULA rate, Sgt. Kelsay only includes visits to the premises for which the police dispatcher has assigned an activity code of bar check. A bar check is typically initiated by the officer(s) to check for violations. The officer radios in to police dispatch to report that he or she is checking a particular bar, and the dispatcher would code the call as a bar check. In calculating the PAULA rate, Sgt. Kelsay does not consider police visits to an establishment for other reasons, such as police responses to specific complaints like fights or organized compliance checks using cooperating underage persons. His rationale for excluding these visits to the licensed premises is that the officers would not be looking for PAULA violations or issuing PAULA citations when they are going to the licensed premises for a limited purpose. Sgt. Kelsay posts the PAULA statistics on-line, including the number of bar checks at each establishment. He is willing to review the classification of a particular visit and change it to a bar check if a licensee can show that it was miscoded by the officer or dispatch. Officers have different approaches when conducting a bar check for underage violations. Some officers will use a shotgun approach and request identification from every patron. Others, like Sgt. Kelsay, will focus on those patrons who act suspiciously by going into a restroom or handing their beverage to another patron when they see an officer. If Sgt. Kelsay issues a PAULA

6 Page 6 citation to an underage patron who has been marked as over-21 at the door, he immediately suspects that the person displayed false identification to a door person. He will pressure the patron to provide any false identification in their possession by pointing out that he could take them to the police station rather than cite and release them on the PAULA violation. In Sgt. Kelsay s experience, most patrons will then turn over their false identification or consent to a search of their wallet or purse. Even if a patron is not observed in physical possession of an alcohol beverage at the establishment, PAULA citations may be issued based solely on a positive preliminary breath test (PBT). In addition, PAULA citations may also be issued for constructive possession of alcohol, such as when four patrons are found sitting at a table with a pitcher and four glasses. Sgt. Kelsay believed that most officers would require more than an alcoholic beverage within arm s reach of the patron before issuing a PAULA citation. (Testimony of Troy Kelsay) 5. Iowa City Fieldhouse Co., Inc. d/b/a The Field House ( Field House ) has held Class C Liquor License No. LC for the premises at 111 E. College Street in Iowa City, Iowa since The Field House is owned by Dave Carey, Joe Denny, Michelle Payton, and Colin Caffrey. Dave Carey currently owns eight bars in the state of Iowa. The local authority approved the liquor license renewal applications for The Field House in 2003, 2004, 2005, 2006, 2007, and On or about July 6, 2009, The Field House filed a renewal application for Liquor License No. LC (Electronic Renewal Application; Testimony of Rafer Mateer; Dave Carey) 6. Chief Hargadine reviewed The Field House s most recent renewal application using the Guidelines approved by the local authority on February 10, In the 12-month period from July 10, 2008 to July 10, 2009, 143 PAULA citations had been issued to patrons on the premises of The Field House during 92 bar checks. This gave The Field House a PAULA citation rate of (1.55). Chief Hargadine prepared a written memorandum recommending denial of The Field House s renewal application based on its PAULA citation rate. In his memorandum, Chief Hargadine also noted that during the previous 12 months there had been 272 arrests/charges associated with The Field House location, E. College Street, as follows: o PAULA: 143

7 Page 7 o Public Intoxication: 64 o Assault or Disorderly Conduct (fighting): 28 o DL/ID offenses: 16 o Under 19 In Bar After 10pm: 10 o Obstruction, Interference, or Assault on a Police Officer: 9 o Open Container: 3 Chief Hargadine also noted 229 calls-for-service associated with the establishment, including the following 103 nuisance calls: o Out with subject: 65 o Fight in progress: 21 o Assault: 9 o Intoxicated Pedestrian: 3 o Unknown Problem: 3 o Domestic Fight: 1 o Narcotics: 1 Both the arrests and calls for service included incidents occurring outside of The Field House that were associated with The Field House by the original complainant. The calls for service are not considered bar checks and were not counted when calculating the licensee s PAULA citation rate. Sgt. Kelsay acknowledged that the Driver s License/ID citations were likely given to patrons who also received PAULA citations. Out with subject indicates that the officer called dispatch to report he or she will be out in front of The Field House with a subject, presumably to discuss some negative behavior such as a fight or an open container. Sgt. Kelsay conceded that when he reviewed the 143 citations with the Field House attorney, they found that one of the citations was issued outside the licensed premises and not during a bar check. Sgt. Kelsay recalculated the PAULA rate excluding this citation and it was Chief Hargadine and Sgt. Kelsay both testified that if it were not for the PAULA rate over 1.0, they would have recommended approval of The Field House renewal application. (Local Authority Exhibit 4; Testimony of Samuel Hargadine; Troy Kelsay) 7. PAULA citations are only issued to bar patrons and are not issued to the bar s owners or employees, unless the employee happens to be underage and in possession of alcohol. Citations are only allegations and do not establish or prove guilt. Chief Hargadine had no data to show whether the 143 PAULA citations that were issued to patrons of The Field House in the 12 months

8 Page 8 preceding the renewal application resulted in convictions. (Testimony of Samuel Hargadine; Troy Kelsay) 8. Rafer Mateer has managed The Field House for just over six years and has an ownership interest in two other Iowa City bars and one bar in West Liberty. The Field House has not had any prior suspensions or revocations for liquor license violations under its current ownership and management. Its owners and employees have never been cited or convicted for sales to underage persons. Mr. Mateer estimated that The Field House serves 5000 customers in a week. Nearly all of The Field House employees have participated in TIPS (Training for Intervention Procedures), which trains them in proper serving procedures, how to check identification, and how to identify false identification. The most experienced employees are assigned to positions at the door checking identification and to security positions on the floor of the establishment. The Field House typically has four employees posted at the entrance. One employee checks identification and stamps the right hand of all year olds, one employee provides a wrist band to persons over the legal age, one employee collects the cover charge, and the fourth employee stands oversees the other three. The Field House has used identification scanners in the past but found them ineffective because the vast majority of persons are using valid ID s issued to other people, and the scanner does not screen false ID s. Field House employees are offered a $5.00 incentive for every false ID that they confiscate from a patron. In the past, the Field House has given the confiscated ID s to patrolling police officers or has cut them up. Mr. Mateer estimates that his employees have confiscated more than 2700 ID s in the past. Recently the owners were told that they should turn the confiscated ID s in at the police station. On July 22, 2009, one of the owners of The Field House delivered 924 confiscated identification cards to the police records window. They included 537 Iowa driver s licenses, 316 out-of-state driver s licenses and personal ID s, and 71 Iowa non-driver and other identification cards. (Field House Exhibit B) Field House bartenders and waitresses do not check identification but are only permitted to sell or serve alcoholic beverages to customers with the over-21 wrist band, regardless of the patron s apparent age. Servers who are observed violating this rule are immediately terminated. On a busy night, there are typically employees posted within the establishment to provide security. One employee is always posted at the back door and one is posted at the side

9 Page 9 door to prevent people from sneaking into the bar. The other security personnel watch the dance floor and the rest of the establishment for signs of intoxicated persons, underage drinking, fights, or other misbehavior. If an underage person is caught drinking alcoholic beverages they are required to leave the premises immediately. Mr. Mateer estimated that Iowa City police officers enter The Field House 5-6 times per week. Usually two officers will enter together, although Mr. Mateer has seen as many as ten officers come in at one time. (Testimony of Rafer Mateer; Dave Carey) I. Summary of Arguments CONCLUSIONS OF LAW The local authority relies on its Resolution No , which was approved on February 10, 2009 and which sets out factors for the police chief to consider in evaluating the good moral character of applicants for liquor licenses, to support its denial of this liquor license renewal application. Specifically, the local authority relies on the part of the resolution that requires the police chief to recommend denial if the applicant has a PAULA citation rate over 1.0 in the 12 months preceding the application. In summary, the local authority contends that its adoption and implementation of Resolution is a valid exercise of its home rule authority, is not inconsistent with state law, and provides a valid and fair measure of good moral character. The licensee, on the other hand, contends that the resolution is not consistent with state law, is not authorized by Home Rule, is void for vagueness, is arbitrary and an abuse of discretion, and that even if valid, that the numbers used by the local authority to calculate the PAULA rate were inaccurate and meaningless. II. State Has Broad Authority To Regulate Liquor and Liquor Licenses Iowa Code section sets forth the public policy underlying the Iowa Alcoholic Beverages Control Act and states that the Act: shall be deemed an exercise of the police power of the state, for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose. It is declared to

10 Page 10 be public policy that the traffic in alcoholic liquors is so affected with a public interest that it should be regulated to the extent of prohibiting all traffic in them, except as provided in this chapter. Iowa Code chapter 123 establishes the Alcoholic Beverages Division within the Department of Commerce to administer and enforce the laws of this state concerning beer, wine, and alcoholic liquor 7 and also provides for the governor to appoint a division administrator and members of the Alcoholic Beverages Commission. 8 The administrator, with the approval of the commission and subject to chapter 17A, may adopt rules as necessary to carry out Iowa Code chapter 123, including rules prescribing the conditions and qualifications necessary for the obtaining of licenses and permits. 9 Liquor license applications (and renewal applications) are initially filed with the appropriate local authority. 10 The local authority shall either approve or disapprove the issuance of a liquor control license, shall endorse its approval or disapproval on the application and shall forward the application with the necessary fee and bond, if required, to the division. 11 An applicant for a liquor control license, wine permit, or beer permit may appeal from the local authority's disapproval of an application for a license or permit to the administrator of the Alcoholic Beverages Division (division). In the appeal, the applicant shall be allowed the opportunity to demonstrate in an evidentiary hearing conducted pursuant to chapter 17A that the applicant complies with all of the requirements for holding the license or permit. If the administrator determines that the applicant complies with all of the requirements for holding a license or permit, the administrator shall order the issuance of the license or permit 12 Therefore, in this proceeding the licensee has the burden of establishing 7 Iowa Code section 123.4(2009). 8 Iowa Code sections 123.5, (2009) 9 Iowa Code section (11)(2009) 10 Iowa Code section (1)(2009). Local authority means the city council of any incorporated city in the state of Iowa or the county board of supervisors of any county, which is empowered by Iowa Code chapter 123 to approve or deny applications for beer or wine permits or liquor control licenses; empowered to recommend that such permits or licenses be granted and issued by the division; and empowered to take actions reserved to them by Iowa Code chapter 123. Iowa Code section 123.2(21)(2009). 11 Iowa Code section (2)(2009). 12 Iowa Code section (6)(2009).

11 Page 11 that it complies with the requirements for holding a liquor license in the state of Iowa. A. Statutory Good Moral Character Requirement The legislature has determined that a liquor control license may only be issued to a person who is of good moral character as defined by Iowa Code chapter Iowa Code section 123.3(26) provides the following relevant definition for good moral character : 26. "Person of good moral character" means any person who meets all of the following requirements: a. The person has such financial standing and good reputation as will satisfy the administrator that the person will comply with this chapter and all laws, ordinances, and regulations applicable to the person's operations under this chapter... This provision establishes a relatively broad and subjective standard for good moral character. 14 However, 185 IAC 4.2(4) b provides further guidance for determining good moral character and also provides a role for the local authority in making this determination: 4.2(4) Financial standing and reputation. A local authority or the administrator may consider an applicant's financial standing and good reputation in addition to the other requirements and conditions for obtaining a liquor control license...and local authority or the administrator shall disapprove or deny an application for a liquor control license,... if the applicant fails to demonstrate that the applicant complies with the lawful requirements and conditions for holding the license... b. In evaluating an applicant's "good reputation," the local authority or the administrator may consider such factors as, but not 13 Iowa Code section (1)(a)(2009) 14 Other provisions of the definition are more objective, e.g. a person must be a U.S. citizen and citizen of Iowa or registered to do business in the state, must not have been convicted of a felony in the past 5 years, and must not have had another liquor license revoked. See Iowa Code section 123.3(26)(b)-(d).

12 Page 12 limited to, the following: pattern or practice of sales of alcoholic beverages to 19- and 20-year-old persons for which the licensee or permittee, or the licensee s or permittee s agents or employees, have pled or have been found guilty, 15 pattern and practice by the licensee or permittee or the licensee's or permittee's agents or employees, of violating alcoholic beverages laws and regulations for which corrective action has been taken since the previous license or permit was issued, sales to intoxicated persons, licensee or permittee convictions for violation of laws relating to operating a motor vehicle while under the influence of drugs or alcohol, the recency of convictions under laws relating to operating a motor vehicle while under the influence of drugs or alcohol, licensee or permittee misdemeanor convictions, the recency of the misdemeanor convictions. (emphasis supplied). The list of factors is non-exclusive but notably all of the listed factors relate to conduct and behavior of the license applicant or the applicant s employees. Licenses can be denied for failure to satisfy the good moral character requirement if there has been a pattern and practice of violations of alcoholic beverage laws and regulations by the licensee (or by the licensee s employees or agents) for which corrective action has been taken since the previous license was issued. 16 Violations do not have to be proven through criminal convictions. 17 Violations can be established in an administrative hearing held before the local authority or the division. 18 PAULA citations are issued to patrons and are not issued to the licensee or to the licensee s employees. Nevertheless, a large number of PAULA citations issued to patrons inside the licensed establishment in the year prior to renewal may constitute a pattern and practice of violations that will reflect poorly on the licensee s good moral character, so long as the local authority goes forward with 15 This provision relates back to a time when the licensee sanctions for alcohol sales to 19 and 20 years olds were limited to a $50 fine. That statutory provision has been repealed and this portion of the rules is no longer of any practical effect. See 97 Acts, ch 126, IAC 4.2(4) b. 17 Iowa Code section (1)(c)(2009)( A criminal conviction is not a prerequisite to suspension, revocation, or the imposition of a civil penalty pursuant to this section. ) 18 Iowa Code section (1)(2009).

13 Page 13 evidence to show the culpability of the licensee or the licensee s employees with respect to the citations. In terms of establishing a pattern and practice of violations under subrule 4.2(4)(b), the following provisions of Iowa Code section (2) are potentially implicated by PAULA citations: 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 ascertain whether the person is under legal age, to consume any alcoholic beverage, wine or beer. j. Knowingly permit or engage in any criminal activity on the premises covered by the license or permit. Thus, if the patron issued a PAULA citation was sold or served an alcoholic beverage by the licensee (or an employee of the licensee) or if the licensee (or the licensee s employee) permitted the underage person to consume an alcoholic beverage, while either knowing the person was underage or by failing to exercise reasonable care to ascertain that the person was underage, then the licensee is liable for committing a violation of Iowa Code section (2)(h) 19 and/or (2)(j). It is important to remember, however, that if underage persons misrepresent their age (for example by showing false identification), and the licensee establishes that reasonable inquiry was made to determine whether the prospective purchaser was over legal age, then the licensee is not guilty of selling alcoholic liquor, wine, or beer to a person under the legal age Iowa Code section (3) mandates progressive penalties for violations of Iowa Code section (2)(h), ranging from a $500 fine for a first violation to revocation for a fourth violation in a period of three years. 20 Iowa Code section (3)(2009).

14 Page 14 B. Home Rule and Local Authority Power to Adopt Ordinances or Regulations Governing Liquor Licenses. Under Article III, Section 38A of the Iowa Constitution, municipalities in Iowa have home rule authority to determine their local affairs and government, but only to the extent those determinations are not inconsistent with the laws of the General Assembly. 21 This provision of the Iowa Constitution, known as the Home Rule Amendment, grants municipal corporations broad authority to regulate matters of local concern. 22 However, this authority is limited by the fact that a city s exercise of power must not be inconsistent with the laws of the general assembly. 23 The determination of whether a particular local action is inconsistent with the laws of the general assembly requires a preemption analysis. 24 Preemption may be express or implied. Express preemption occurs when the general assembly has specifically prohibited local action in an area. 25 The Iowa Supreme Court has recognized that while the general assembly reserved to itself the general authority to regulate the alcoholic beverage industry in Iowa, it also gave limited regulatory powers to local authorities. 26 For example: No liquor control license shall be issued for premises which do not conform to all applicable laws, ordinances, resolutions, and health and fire regulations. 27 Local authorities may adopt ordinances or regulations for the location of the premises of retail wine or beer and liquor control licensed establishments, and local authorities may adopt ordinances, not in conflict with Iowa Code chapter 123, that do not diminish the hours during which beer, wine or alcoholic beverages may be sold. 28 Local authorities may also require an applicant s security personnel to be trained and certified in security methods Goodell v. Humboldt County, 575 N.W.2d 486,500(Iowa 1998). 22 City of Des Moines v. Gruen, 457 N.W.2d 340, 341 (Iowa 1990). 23 Iowa Const. art.iii, 38A. 24 Iowa Const., art. III, 39A, see Home Rule in Iowa, 22 Drake L.Rev. at Goodell, 575 N.W. 2d at Iowa Grocery Industry Association v. City of Des Moines, 712 N.W.2d 675, 679(Iowa 2006). 27 Iowa Code section (2)(2009). 28 Iowa Code section (2)(2009); 185 IAC Iowa Code section (4)(2009).

15 Page 15 Following written notice and opportunity for hearing, local authorities may suspend a license or permit for a period not to exceed one year or impose a civil penalty not to exceed one thousand dollars per violation. 30 Because there is no express preemption, the question turns to implied preemption. Implied preemption occurs when the ordinance prohibits an act permitted by statute, or permits an act prohibited by a statute. 31 Implied preemption may also occur when the legislature has covered a subject by statutes in such a manner as to demonstrate a legislative intention that the field is preempted by state law. 32 In determining what the legislature has permitted or prohibited [for purposes of implied preemption], the [court] looks to the legislative intent, and requires that any local ordinance remain faithful to the legislative intent, as well as the legislative scheme established in the relevant state statutes. 33 III. Local Authority s Adoption and Application of Resolution No The local authority has adopted Ordinance 4-5-8, which requires the police chief to conduct an investigation to determine if a liquor license applicant is of good moral character and to make a recommendation to the local authority whether to approve or deny the application. This ordinance only establishes a local procedure for the review of applications and does not conflict with any provision of Iowa Code section 123. On February 10, 2009, the local authority adopted Resolution 09-38, which required the police chief to review an applicant s PAULA citation rate and to recommend denial if the rate over the past 12 months exceeded 1.0. Chief Hargadine and Sgt. Kelsay conceded that the only reason for the police department s recommendation to deny The Field House renewal application was its PAULA citation rate. If it were not for the PAULA rate and Resolution No , the police department would have recommended renewal of the license. Moreover, the hearing before the local authority focused almost exclusively on the PAULA rate as the reason for the denial. (Local Authority Exhibit 3). For this reason, this proposed decision focuses on the portion of Resolution No that pertains to PAULA citations. 30 Iowa Code section (1)(2009). 31 Gruen, 457 N.W.2d at Goodell, 575 N.W.2d at Id. at 500.

16 Page 16 Resolution No provides, in part, that the factors to be considered by the police chief in determining good moral character include: Citations issued on the premises for PAULA (Possession of Alcohol Under Legal Age) which indicate that the licensee or permittee knows that such activity is taking place on the premises and does not have measures in place to adequately control access of persons under legal age to alcohol. Read in isolation, the foregoing section of Resolution No does not appear to be necessarily inconsistent with state statutes and rules that focus on the conduct of the licensee or the licensee s employees in determining good moral character. However, the local authority has implemented and applied the resolution to the licensee without providing evidence to show that the licensee or the licensee s employees knew that the prohibited activity (underage possession and consumption of alcohol) was taking place on the premises, which would be required to find a violation of Iowa Code section (2)(j). Nor did the local authority provide evidence to show that the licensee failed to exercise reasonable care to ascertain that a person consuming alcoholic beverages was of legal age, as minimally required to show a violation of Iowa Code section (2)(h). Rather, the local authority relies on raw statistics of PAULA citations and on the implication that based solely on the number of citations per bar check, the licensee or the licensee s employees must have known or permitted the violations to occur. While it is true that the licensee has the burden to establish good moral character, the local authority is still expected to bring forward sufficient evidence to show culpability of the licensee or the licensee s employees with respect to the underage possession charges. The local authority must present more than raw numbers of PAULA citations. The local authority s case reveals nothing about the circumstances surrounding the issuance of any of the 143 PAULA citations. The officers who issued the citations did not testify. There were no police or incident reports with respect to any of the citations. We do not know if the individuals cited were holding or drinking an alcoholic beverage or if they possessed or consumed alcohol in the presence of an employee. The local authority s witnesses conceded that PAULA citations could be issued to patrons with a positive PBT, even if there is no evidence that they consumed the alcohol on the licensed premises. PAULA citations can also be issued for constructive

17 Page 17 possession, such as when there are four glasses on a table and officers observe four patrons sitting at the table. In addition, if persons who were issued PAULA citations presented reasonably credible false IDs (and possession of false identification is widely recognized as a large problem in Iowa City) then these citations should not be counted as evidence of the licensee s lack of good moral character. Sixteen patrons were given citations for false IDs and presumably also received 16 of the PAULA citations. It is unclear if additional citations were issued to patrons with over-21 wrist bands and who presented false IDs at the door, but who were not asked if they had a false ID or did not voluntarily produce the false ID for police officers. There is no evidence concerning the types of IDs that were presented or how credible or convincing they may have been for the person who presented them. The probative value of the PAULA statistics is further diminished because Resolution fails to define what constitutes a visit. Even if Sgt. Kelsay s interpretation of visit is accepted as fair and reasonable, the legitimacy of his numbers depends entirely upon individual officers to properly and fully report their activities with respect to each establishment and on the dispatcher to provide the appropriate activity code. At least one such coding error was identified at hearing with respect to The Field House. Based on this record, it must be concluded that Iowa City Fieldhouse Co., Inc., d/b/a The Field House does have the required good moral character to continue to hold a liquor license in the state of Iowa. The local authority s reliance on Resolution No to deny the renewal application based solely on the PAULA citation statistics presented at hearing was inconsistent with state law and regulations defining good moral character and should be reversed. DECISION AND ORDER It is therefore ORDERED that the local authority s decision to deny the renewal application for Liquor License No. LC-34755, filed by Iowa City Fieldhouse Co., Inc. d/b/a The Field House based on its PAULA citation rate is hereby REVERSED. 185 IAC 10.27(1) and (2) provide that 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

18 Page 18 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. 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 15 th day of December, Margaret LaMarche Administrative Law Judge Department of Inspections and Appeals Division of Administrative Hearings Wallace State Office Building-Third Floor Des Moines, Iowa 50319

19 Copies to: Margaret LaMarche Administrative Law Judge Department of Inspections & Appeals Lucas State Office Building Des Moines, Iowa John Lundquist Assistant Attorney General Department of Justice Hoover State Office Building Des Moines, Iowa Lt. David Eick ISP, District # th Street Oelwein, Iowa Chief Sam Hargadine Iowa City Police Department 410 E. Washington Street Iowa City, Iowa Marion Karr City Clerk - City Hall 410 E. Washington Street Iowa City, Iowa Beverly Zylstra Social Gaming Unit Lucas State Office Bldg. Des Moines, Iowa Gayle Collins Commissioner Iowa Alcoholic Beverages Division 1918 SE Hulsizer Ankeny, Iowa Karen Freund Iowa Alcoholic Beverages Division 1918 SE Hulsizer Ankeny, Iowa Eric R. Goers Assistant City Attorney 410 East Washington Street Iowa City, Iowa Matthew J. Adam Attorney at Law th Street Suite 205 Coralville, Iowa John Henry Ellison Chief Investigator 2323 Grand Avenue Des Moines, Iowa 50312