~~ - Timothy Horan Administrative Law Judge

Transcription

1 ., State Office ofadministrative Hearings Lesli G. Ginn Chief Administrative Law Judge June 13, 2016 Sherry K-Cook Administrator Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin, Texas VIA REGULAR MAIL RE: SOAH Docket No ; Texas Alcoholic Beverage Commission vs. LKW Group LLC d/b/a Raceway #6784 Dear Ms. Cook: Please find enclosed a Proposal for Decision m this case. recommendation and underlying rationale. It contains my Exceptions and replies may be filed by any party in accordance with I TEX. ADMIN. CODE (c), a SOAH rule which may be found at Sincerely, ~~ - Timothy Horan Administrative Law Judge TH/mr Enclosure xc Ramona Perry, Texas Alcoholic Beverage Commission, 427 W. 20'h Street, Suite 600, Houston, TX VIA REGULAR MAIL Martin Wilson, General Counsel, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, TX VIA REGULAR MAIL Judith Kennison, Senior Attorney, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, TX VIA REGULAR MAIL (with Certified Evidentiary Record and l Hearing CD/s) Clyde Burleson, Attorney at Law, 1533 W. Alabama, Suite 100, Houston, TX VIA REGULAR MAIL 2020 North Loop West, Suite 111, Houston, Texas (Main) (Fax)

2 SOAH DOCKET NO TEXAS ALCOHOLIC BEVERAGE COMMISSION, Petitioner V. LKW GROUP LLC, D/B/A RACEWAY# 6784, Respondent PERMIT NO. Q , BF GALVESTON COUNTY, TEXAS (TABC CASE NO ) BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS PROPOSAL FOR DECISION Staff of the Texas Alcoholic Beverage Commission (TABC) brought this enforcement action against LKW Group LLC, d/b/a Raceway# 6784 (Respondent), alleging that Respondent's employee sold, with criminal negligence, an alcoholic beverage to a minor on the licensed premises. The Administrative Law Judge (ALJ) finds that TABC proved its case. The ALJ recommends that Respondent's permit/license be suspended for a period of 24 days, or in lieu of a suspension, Respondent pay a civil penalty in the amount of $7,200. I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY There are no contested issues of notice or jurisdiction in this matter. Therefore, notice and jurisdiction are addressed in the findings of fact and conclusions oflaw without further discussion. The hearing in this matter convened on April 29, 2016, before the State Office of Administrative Hearings (SOAH) ALJ Timothy Horan. Attorney Ran1ona M. Pen-y represented Staff at the hearing. Respondent was represented by attorney Clyde W. Burleson. The hearing concluded and the record closed the same day.

3 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE2 II. DISCUSSION A. Applicable Law Pursuant to Texas Alcoholic Beverage Code (Code) , TABC may suspend a pennit if it is found that the permittee, with criminal negligence, sold an alcoholic beverage to a minor. A permittee acts with criminal negligence when the permittee should have been aware of a substantial and justifiable risk that the circumstances exist or the result will occur. The failure to perceive the risk must constitute a gross deviation from the care an ordinary person would exercise under the same circumstances. Tex. Penal Code 6.03(d). B. Evidence Respondent holds a Wine Only Package Store Permit Q and Beer Retailer's Off Premise License BF , for its store known as Raceway# 6784, located at 5714 Broadway, Galveston, Galveston County, Texas. 1 On April 25, 2015, TABC conducted a minor sting operation to locate businesses selling alcoholic beverages to minors-anyone under the age of21. TABC Agent Chris Kelemen ( currently employed as a peace officer with the Texas City Police Department), along with a volunteer, a 15 year-old minor, conducted the sting operation at Respondent's store. Agent Kelemen testified that he was in an undercover capacity and entered Respondent's store at approximately 4:46 p.m. on Saturday, April 25, 2015, while Agent Darden was positioned outside the store. The minor was told by the T ABC agents to enter the store and to try and purchase alcohol. Agent Kelemen had previously given the minor money to be used in the purchase and checked the minor's Texas under 21 Identification card. 2 Agent Kelemen stated that the minor looked under 21 years of age and youthful in appearance and dress. 1 TABC Ex. I.

4 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE3 Agent Kelemen observed the minor enter the store, select a Bud Light beer, and place the beer on the counter. The clerk asked the minor for her identification which she handed to the clerk. The clerk reviewed the identification card and gave it back to her. Agent Kelemen then observed the minor purchase the beer from the clerk. Agent Kelemen was in the store the entire time the minor was in the store, watching her and the transaction. Once the minor purchased the beer, she left the store and met with the TABC agents outside the store. Agent Kelemen also left the store and met with Agent Darden to give him a description of the clerk who sold the alcoholic beverage to the minor. The clerk was then identified as Naresh Babu. T ABC confomed that Mr. Babu was not TABC seller-server certified and Mr. Babu was given an administrative notice for the violation. At the hearing, the parties agreed that at the time of the violation, Respondent's employee was not T ABC ce11ified and that the clerk was in the process of finishing the T ABC certification training. C. Discussion and Recommendation Staff argues that sale of an alcoholic beverage to a minor is a public safety violation and that Respondent had also been issued an administrative notice for sale of alcohol to a minor on August 2, Staff requested that Respondent's permit/license be suspended for a period of24 days, or in lieu of a suspension, Respondent pay a civil penalty in the amount of $7,200. Respondent asserts that this is only the second enforcement action against Respondent in almost 3 years and asks for mitigation in any permit/license suspension period. The preponderance of the evidence supports a finding that Respondent's employee, with criminal negligence, sold an alcoholic beverage to a minor on April 25, It is clear from the evidence presented that the minor was under 21 years old, looked youthful in appearance and dress, and purchased a beer from Respondent's clerk, Naresh Babu. 2 TABC Ex. 2.

5 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE4 The ALJ agrees with Staff that the sale to a minor is a public safety violation. A permit/license to sell alcoholic beverages comes with a responsibility to ensure ihat alcoholic beverages are not sold to minors. Certain measures should be taken, such as of looking at the customer and asking for identification prior to selling alcoholic beverages to any young person to prevent the sale ofalcoholic beverages to a minor. Prior to the purchase ofbeer, Respondent's clerk asked the minor for identification. The minor's identification card was clearly marked "under 21," yet the clerk ignored this and allowed the minor to purchase an alcoholic beverage. The employee's conduct grossly deviated from the standard of care an ordinary seller of alcoholic beverages would exercise under the same circumstances. It should also be noted that Respondent's clerk was in the middle of training for T ABC certification and still allowed the minor to purchase an alcoholic beverage. After having reviewed Respondent's licensing history which contains a prior sale to a minor violation, the ALJ finds the requested suspension or penalty payment is appropriate. Therefore, the ALJ recommends that Respondent's license/permit be suspended for a period of24 days, or in lieu of a suspension, Respondent pay a civil penalty in the amount of $7,200. III. FINDINGS OF FACT l. LKW Group LLC., d/b/a Raceway# 6784 (Respondent), holds a Wine Only Package Store Permit, Q , which includes a Beer Retailer's Off Premise License, BF , issued by Texas Alcoholic Beverage Commission (TABC) for the premises located at 5714 Broadway, Galveston, Galveston County, Texas. 2. On April 25, 2015, TABC conducted a sale to minor sting operation at Respondent's store. 3. On April 25, 2015, Respondent's employee sold an alcoholic beverage to 15-year-old minor. 4. On that date, the employee was not T ABC seller-certified. 5. The employee should have been aware that by not appropriately checking the identification or by intentionally ignoring the minor's date ofbirth on her identification, a substantial and unjustifiable risk that alcohol would be sold to a minor was created. 6. The employee's conduct grossly deviated from the standard of care an ordinary seller of alcoholic beverages would exercise under the same or similar circumstances.

6 SOAH DOCKET NO PROPOSAL FOR DECISION PAGES 7. On March 17, 2016, TABC sent a notice of hearing by certified mail, return receipt requested, to Respondent's mailing address as listed in TABC's records, informing Respondent of the date, time, and place of the hearing, the statutes and rules involved, the matters asserted, and the legal authorities under which the hearing was to be held. 8. The hearing on the merits convened April 29, 2016, before the State Office ofadministrative Hearing (SOAH) ALJ Timothy Horan. Ramona M. Peny represented Staff at the hearing. Respondent was represented by attorney Clyde W. Burleson. The record closed on the day of the hearing. IV. CONCLUSIONS OF LAW I. TABC has jurisdiction over this matter pursuant ch. 5 and (b)(2) and ofthe Texas Alcoholic Beverage Code (Code). 2 SOAH has jurisdiction to conduct the hearing in this matter and to issue a proposal for decision containing findings of fact and conclusions of law pursuant to Tex. Admin. Code ch Respondent received proper and timely notice ofthe hearing pursuant to the Administrative Procedure Act, Tex. Gov't Code ch. 2001, and 1 Tex. Admin Code ch On April 25, 2015, Respondent's employee, with criminal negligence, sold an alcoholic beverage to a minor thereby violating of the Code. 5. Respondent's permit/license should be suspended for a period of 24 days, or in lieu of a suspension, Respondent should pay a civil penalty in the amount of$7,200. SIGNED June 13, Tl~IOTHY HORA~ / AD~fJNISTRATI\~"DGF. ST ATE OFFICE OF ADMINISTR,\Tl\'F. IIF.ARINGS

7 DOCKET NO TEXAS ALCOHOLIC BEVERAGE COMMISSION, Petitioner VS. LKW GROUP, LLC D/B/A, RACEWAY #6784 Respondent PERMIT Q663249, LICENSE BF GALVESTON COUNTY, TEXAS (SOAH DOCKET NO ) ORDER BEFORE THE TEXAS ALCOHOLIC BEVERAGE COMMISSION CAME ON FOR CONSIDERATION this 27th day of October, 2016, the above-styled and numbered cause. After proper notice was given, this case was heard by the State Office of Administrative Hearings (SOAH), with Administrative Law Judge Timothy Horan presiding. The hearing convened on April 29, 2016 and the SOAH record closed the same date. The Administrative Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of Law on June 13, The Proposal for Decision was properly served on all parties, who were given an opportunity to file exceptions and replies as part of the record herein. No exceptions were filed. After review and due consideration of the Proposal for Decision, I adopt the Findings of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law into this Order, as if such were fully set out and separately stated herein. All motions, requests for entry of Proposed Findings of Fact and Conclusions of Law, and any other requests for general or specific relief submitted by any party are denied, unless specifically adopted herein. IT IS THEREFORE ORDERED that the privileges granted by the Commission and the activities authorized under the above permit and license by the Code will be SUSPENDED Page 1 of 3

8 beginning at 12:01 a.m. on December 14, 2016 and shall remain suspended for TWENTY- FOUR (24) DAYS, UNLESS a civil penalty in the amount of $7, is paid ON OR BEFORE December 6, This Order will become final and enforceable on the 22nd day of November, 2016, unless a Motion for Rehearing is filed by the 21st day of November, SIGNED this the 27th day of October, 2016, at Austin, Texas. Sherry K-Cook, Executive Director Texas Alcoholic Beverage Commission CERTIFICATE OF SERVICE I certify that the persons listed below were served with a copy of this Order in the manner indicated below on this the 27th day of October, Martin Wilson, Assistant General Counsel Texas Alcoholic Beverage Commission Page 2 of 3

9 Timothy Horan ADMINISTRATIVE LAW JUDGE State Office of Administrative Hearings 2020 North Loop West, Suite 111 Houston, TX VIA FACSIMILE: (512) LKW Group, LLC d/b/a Raceway #6784 RESPONDENT 1215 Celeste Ct. Sugar Land, TX VIA FIRST CLASS MAIL, CMRRR # Clyde Burleson ATTORNEY FOR RESPONDENT 1533 W. Alabama, Suite 100 Houston, TX VIA FIRST CLASS MAIL, CMRRR# Ramona Perry ATTORNEY FOR PETITIONER TABC Legal Division VIA Ramona.perry@tabc.texas.gov Page 3 of 3

10 TEXAS ALCOHOLIC BEVERAGE COMMISSION CIVIL PENALTY REMITTANCE DOCKET NUMBER: REGISTER NUMBER: NAME: LKW Group, LLC TRADENAME: Raceway #6784 ADDRESS: 1215 Celeste Ct., Sugar Land, Texas DUE DATE: December 6, 2016 PERMITS OR LICENSES: Q663249, BF AMOUNT OF PENALTY: $7, Amount remitted $ Date remitted You may pay a civil penalty rather than have your permits and licenses suspended if an amount for civil penalty is included on the attached order. YOU HAVE THE OPTION TO PAY THE CIVIL PENALTY ONLY IF YOU PAY THE ENTIRE AMOUNT ON OR BEFORE THE DUE DATE. AFTER THAT DATE YOUR LICENSE OR PERMIT WILL BE SUSPENDED FOR THE TIME PERIOD STATED ON THE ORDER. Mail this form with your payment to: TEXAS ALCOHOLIC BEVERAGE COMMISSION P.O. Box Austin, Texas Overnight Delivery Address: 5806 Mesa Dr., Austin, Texas You must pay by postal money order, certified check, or cashier's check. No personal or company check nor partial payment accepted. Your payment will be returned if anything is incorrect. You must pay the entire amount of the penalty assessed. Attach this form and please make certain to include the Docket # on your payment. Signature of Responsible Party Street Address P.O. Box No. City State Zip Code Area Code/Telephone No. Page 1 of 2

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