BEFORE THE IOWA DEPARTMENT OF COMMERCE ALCOHOLIC BEVERAGES DIVISION IN RE: ) ) Docket No. S-2017-00019 Ruby B. Taylor ) DIA No. 17ABD009 d/b/a J&J Pizza Pub ) 2500 MLK Parkway Suite 1 and 2 ) Des Moines, Iowa 50311 ) ) PROPOSED DECISION Liquor License No. LC0041582 ) STATEMENT OF THE CASE On or about April 5, 2017, the city of Des Moines, Iowa ( local authority ) filed a Complaint and Request for Emergency Suspension with the Iowa Alcoholic Beverages Division ( ABD ). The administrative hearing complaint alleges seven violations by licensee Ruby B. Taylor d/b/a J&J Pizza Pub: 1) after hours consumption; 2) allowing use of liquor bottle(s); 3) allowing illegal drugs on premises; 4) allowing under aged persons in bar after 9 PM; 5) failure to keep records on premises for inspection; 6) failure to display license; and 7) failure to have a music permit. The local authority requested in the complaint that the ABD administrator order an immediate suspension pending administrative hearing for revocation of the license. The ABD administrator issued a Summary Suspension Order on April 5, 2017. The licensee requested a hearing on the matter of the emergency suspension. A Notice of Telephone Hearing was issued on April 11, 2017 setting the emergency suspension hearing for April 20, 2017. The hearing was continued at the local authority s request and an in person hearing was held on May 10, 2017. With the consent of the parties, the hearing addressed two issues: 1) the licensee s appeal of the ABD administrator s summary suspension order; and 2) the administrative complaint filed by the local authority. Assistant city attorney Doug Philiph represented the local authority. The licensee appeared and was selfrepresented. THE RECORD The record includes: 1) the Complaint and Request for Emergency Suspension, with attachments (Affidavit of Officer Jeff Robinson and Supplemental Report dated April 3, 2017); 2) online licensing information regarding the liquor license; 3) Notice of Suspension; 4) Summary Suspension Order; and 5) the licensee s hearing request. Additionally, the record includes Exhibits 1-47, which were submitted by the local authority and admitted as evidence, and Exhibits A and B, which were submitted by the licensee and admitted as evidence. The record also includes testimony from the following witnesses: Officer Curtiss Accola; Captain Chris Hardy; Officer Jeff Robinson; Lieutenant Chris Scott; Ruby Taylor; Jerry Berry; and Jerry Berry Jr.
Page 2 FINDINGS OF FACT Ruby B. Taylor d/b/a J&J Pizza Pub holds License No. LC0041582 for the premises located at 2500 Martin Luther King Jr. Parkway, Des Moines, Iowa. The business is listed as a sole proprietorship. The license was initially issued on March 24, 2015 and, according to the ABD administrator, the licensee s 2017 renewal application is presently on timely-filed status pending further investigation by the Division into the Licensee s qualifications to hold the license. 1 Events of April 2, 2017 On April 2, 2017, at approximately 3 AM, Captain Chris Hardy, midnight watch commander for the Des Moines Police Department, was en route to J&J Pizza Pub. Hardy had received two complaints regarding the licensed premises from the DMPD day watch commander, who had reported that there had been after hours parties at J&J Pizza Pub the previous two nights. While Hardy was en route to the licensed premises, he received a major crime alert tone advising him of a shooting taking place at J&J Pizza Pub. People inside the bathrooms at J&J Pizza Pub had called police to report active shooters. Shortly after the first alert, DMPD issued an all cars respond tone regarding the shooting at the licensed premises. Hardy has been an officer with DMPD for approximately 21 years; this is only the third or fourth time in that time period that he has heard the all cars respond tone. That tone indicates an extremely severe situation. (Hardy testimony). As Hardy approached the scene on foot, he observed a person who had been shot lying face down between the curb and the street on the east side of the bar near the bar s south property line. From the blood trail, police concluded that the victim had been shot in the abdomen near the entrance of the bar, then walked around the front of the bar, smearing blood on several cars. He then attempted to hide on the south, or back, side of the bar. The victim also attempted to hide a handgun from which all shells had been fired. (Hardy testimony). When Hardy went inside the bar, someone was carrying DJ equipment out of the entrance. Alcohol bottles, beer bottles, cups, and other items were present around the bar; Hardy believed, based on the condition of the bar and the time, that the bar had been open after hours. Hardy smelled gunpowder and burnt marijuana from the doorway of the bar. When Hardy entered the bar for the second time approximately one hour and 25 minutes after arriving on the scene, someone behind the bar was in the process of cleaning up alcohol bottles, cups, and other items. (Hardy testimony). Photographs and Hardy s body camera video show the condition of the bar following the shooting incident. Red plastic cups and beer bottles are on the bar surface, on tables, on the pool table, and on the floor. Napkins and plates are scattered on tables. A black 1 Online licensing information submitted by ABD with the administrative file appears to reflect that the local authority approved the license effective March 24, 2017 and the license expires March 23, 2018.
Page 3 plastic trash bag with alcohol bottles is sitting on the floor near the east entrance of the licensed premises. A tequila bottle is sitting on a window ledge near the east entrance of the bar. (Exh. 19-23, 25, 27, 30-33, 44). Police collected the following items from the licensed premises during a consent search following the shooting incident: 1) 0.1 gram of loose marijuana from a table along the east wall of the customer area; 2) 0.1 gram of loose marijuana from the SE corner pocket of the pool table; and 3) a baggie with approximately 1 gram of marijuana found in a clear plastic container in the kitchen area of the licensed premises. In addition to the marijuana found, there was also packaging from cigars and cigarillos and loose tobacco found on tables. This combination of items suggests to police that individuals inside the licensed premises were making marijuana blunts by taking loose tobacco out of cigars and using the wrapper to repackage marijuana for smoking. The amount of marijuana found in the baggie in the kitchen of the licensed premises is consistent with the amount used to make a marijuana blunt. (Exh. 32-33, 35-38, 45; Hardy, Robinson, Scott testimony). Approximately four shell casings were found inside the licensed premises; additionally, one live round and a casing were found in a trash can near the door. Casings were found to the left and right of the interior threshold of the door and further inside the premises near the bar. Shell casings are ejected from a gun near the location where it is fired. Based on the casings and unfired round found inside the bar, it appeared to Captain Hardy that someone fired from inside the bar with the front door open. Fresh blood was also located on the floor inside the licensed premises in at least two locations. (Hardy, Robinson, Scott testimony; Exh. 23-28). In total, police found over 80 shell casings in and around the licensed premises. The vast majority of those casings were outside. Photographs from the scene show multiple shell casings within sight of the entrance, including in the grassy area to the east of the building, on the front stoop and directly adjacent to the front stoop, and under and around vehicles parked directly in front of the licensed premises. A total of seven vehicles, including three parked directly in front of the licensed premises, were damaged by gunfire. In addition to the vehicles in the parking lot that were damaged by gunfire, at least three buildings were also struck: 1) a tire business to the south of J&J Pizza Pub; 2) the apartments and storefront to the north of J&J Pizza Pub that share a parking lot with the bar; and 3) a warehouse across the street from J&J Pizza Pub. (Exh. 12-17, 46-47; Accola testimony). In total, five people sustained gunshot wounds as a result of the shooting incident on April 2. Two of the victims had surgery immediately following the shooting as a result of their wounds. The victims included a 17 year old girl who was sitting in a vehicle at the west end of the parking lot when the shooting started. A bullet entered the vehicle and grazed the girl s scalp. Another victim received a through-and-through gunshot wound to his right leg and had a bullet fragment in his right elbow. (Accola testimony; Exh. 47).
Page 4 At least four witnesses reported to police that they arrived at the bar at or after 2:00 AM on April 2. Witnesses reported that the first shots occurred sometime between 2:30 and 3:00 AM. (Exh. 46). Video An individual who was in an apartment on the second floor across the parking lot from the licensed premises filmed a portion of the shooting incident on his cell phone. The individual began filming after he heard shots fired, therefore the video does not capture the entire event. (Exh. 2, 46; Accola testimony). During the video, multiple people can be seen going in and out of the east entrance of the licensed premises. Some of the individuals have guns, and the video shows individuals who have just exited the bar shooting in the direction of Martin Luther King Jr. Parkway. Individuals are seen ducking and hiding among the cars parked directly in front of J&J Pizza Pub. Individuals can be seen shooting guns, then re-entering J&J Pizza Pub. During the video, several cars can be seen leaving and entering the parking lot adjacent to the licensed premises. Cars can also be seen driving along Martin Luther King Jr. Parkway. The most significant gunfire in the video occurs in one concentrated burst of approximately eight seconds. At least 20 shots can be heard during this time, although the exact number is difficult to estimate due to the concentrated nature of the gunfire. (Exh. 2). Police pull up adjacent to the bar at approximately the 2 minute, 27 second point of the video. Once police arrive, many people can be seen exiting the bar and leaving the premises on foot, including crossing Martin Luther King Jr. Parkway. Additionally, multiple cars can be seen exiting the parking lot. (Exh. 2). Information Provided by Jerry Berry Jerry Berry was present at the licensed premises at the time of the shooting and, in conversations with police officers on that date, identified himself as the owner of the bar; he reported that he had owned the bar for eight years. Berry told police that the licensed premises was hosting an after hours birthday party for an individual known as Heavy. Berry stated that he did not know Heavy s real name; additionally, Berry did not know the real name of the DJ who was at the bar that night. Berry reported that everyone who came in after closing at 2 AM brought their own liquor. Berry stated that the licensed premises charged $5 per person for entry into the after hours party; patrons received a red plastic cup and ice after paying the $5. Many of these red plastic cups are present in the photographs and body camera video of the interior of the licensed premises from the night of April 2. Berry reported that approximately 45 people were present for the party. (Exh. 45; Robinson testimony). Berry reported that the shooting happened at 3:15 AM. Berry told police that he was not sure how the shooting started. He recalled that just prior to the shooting he saw a female patron drinking out of a tequila bottle by the east window. Berry stated he thought she had been drinking too much, therefore he took the bottle. Berry reported to
Page 5 police that this made the woman upset and she left the bar; shortly after that, the shooting began. (Exh. 45; Robinson testimony). Berry reported on the night of the shooting that he does not like guns in the bar and tries to keep them out. He indicated, however, that he has seen females in the bar in the past who carry guns in their bras. Berry stated he does not want to upset these patrons by asking them not to carry. At hearing, Berry testified that staff wand patrons before they come into the licensed premises and individuals with guns are not allowed to come in. Berry also testified that he does not want to call the police on anybody when they are in the establishment. He testified he can handle 95% of the people who come in, gun or no gun. (Berry, Scott testimony; Exh. 45). During a consent search of the bar, police located a coat belonging to Berry in the office area. In a green Crown Royal pouch in the jacket pocket, police found $2,365. Berry had $851 in his wallet, which was located in a different pocket of the coat. Berry reported that the cash in the Crown Royal pouch was the proceeds from the bar from the night of April 1 into the morning of April 2. Berry stated that the money in his wallet was from his paycheck. (Exh. 45; Robinson, Scott testimony). Berry was asked to provide an end of the day cash register printout reflecting the bar s sales from the night in question. Berry stated that he was incapable of producing such a document. Berry told police that he could provide receipts from the night in question in a few days; as of the date of hearing, he had not provided those to police. At the time of the police search, the bar s cash register was empty. Police found credit card receipts wadded up opposite the register; the receipts did not show a detailed account of purchases, but did show the time that the cards were run. The receipts showed purchases were made after 2 AM. (Exh. 45; Scott testimony). The licensee did not have its liquor license displayed in the licensed premises. Upon request, Berry retrieved the food and liquor licenses from an office area located behind the bar. (Exh. 45). Ruby Taylor Hearing Testimony Ruby Taylor has held the liquor license for J&J Pizza Pub for two years. She has never during that time run the licensed premises or been in there every day. Taylor described Berry as the management of the bar. When asked whether Berry was an employee, Taylor responded, pretty much so. She stated that Berry runs the bar and handles everything related to the bar. When asked whether Berry was an owner of the bar, Taylor stated, I guess I m the owner. I guess the liquor license makes me the owner. (Taylor testimony). Regarding Berry s compensation, Taylor testified that he is paid in tips when he works as a bartender. She described no other method of compensation for Berry for running the bar. Taylor stated that the money in Berry s wallet would not have been a paycheck from her. She pays no quarterly withholding taxes related to Berry s employment. (Taylor testimony).
Page 6 Taylor testified that Berry is in charge of keeping the required business records for the licensed premises. Taylor does not know where business records are kept, including records of purchases from beer distributors and hard liquor receipts or the daily bar receipts. Berry is in charge of the accounting and, as far as Taylor is aware, has someone doing the accounting for him. Taylor does not know who the accountant is. Taylor could not explain at hearing where the daily receipts were for the night of April 1 and into the morning of April 2. She likewise could not explain why Berry could not show those receipts to officers upon request. (Taylor testimony). Request for Emergency Suspension On or about April 5, 2017, the local authority filed a Complaint and Request for Emergency Suspension with ABD. The Complaint alleges seven separate violations by the licensee. Regarding the request for emergency suspension, the local authority asserts that on April 2, 2017 at approximately 3:00 AM, a number of patrons were in the licensed premises consuming alcoholic beverages and possessing or using illegal narcotics during an illegal party. The local authority further asserts that a gun fight occurred on the licensed premises which resulted in five persons being injured by gunfire and at least seven vehicles in the parking lot being damaged by gunfire. The request alleges that over 50 shots were fired from both inside the licensed premises and outside into the parking lot of the licensed premises. The local authority alleges that patrons were observed on video coming out of the front door of the licensed premises and firing their guns. The local authority alleges that an interview with Jerry Berry, who claimed to be the owner of the establishment, and items discovered during a consent search performed in the early morning hours of April 2, 2017 at the licensed premises support the request for emergency suspension. The local authority attached to the Complaint and Request for Emergency Suspension two documents: 1) an Affidavit from Officer Jeff Robinson of the Des Moines Police Department; and 2) a Supplemental Report dated April 3, 2017 completed by Officer Robinson. The Supplemental Report includes the following information: Loose marijuana was located in the patron area of the bar in two locations. A baggie with one gram of marijuana was found in the kitchen area of the licensed premises. The State of Iowa liquor and food licenses were not displayed in a visible area and the licenses that Berry retrieved from the office area were expired. A number of red Solo cups were observed around the bar, as well as a large black garbage sack with numerous liquor bottles. Loose tobacco was observed in various cups and on tables, which suggests that individuals may have been removing the tobacco from cigarillos and replacing it with marijuana to make a marijuana blunt. Berry reported to officers that the shooting occurred at approximately 3:15 AM while they were having an after hours birthday party for an individual known as Heavy. Berry did not know Heavy s true name.
Page 7 A bottle of Patron tequila was observed on a window ledge in the patron area of the bar. Berry stated that he had seen a female drinking out of the bottle just prior to the shooting. Berry s coat, which was located in the office area of the bar, contained $2,365 in one pocket and an additional $851 in his wallet in another pocket. Berry claimed that the $2,365 represented proceeds from the bar from April 1 into the morning of April 2. Berry could not provide a register printout or other document showing the bar s sales for the day and no money was present in the cash register. Multiple receipts located in the bar showed patrons cashed out after 2 AM on April 2. Berry reported to officers that he does not like guns in the bar and tries to keep them out, but has seen females in the bar in the past who keep guns in their bras. (Robinson Supplemental Report). On or about April 5, 2017, ABD issued a Summary Suspension Order. The Summary Suspension Order included the following Findings of Fact: On April 2, 2017 at approximately 3 AM, patrons were in the licensed premises consuming alcoholic beverages and possessing or using illegal narcotics during an after hours birthday party. During the party, a gun fight occurred that resulted in five persons being injured by gunfire and at least seven vehicles in the parking lot of the licensed premises being damaged by gunfire. Law enforcement officers identified over 50 gunshots fired from inside the business and outside in the parking lot of the licensed premises. Berry identified himself as the owner of the business during a consent search of the licensed premises. ABD records reflect that Ruby Taylor is the sole owner of J&J Pizza Pub. During the consent search, officers found marijuana in the patron area of the licensed premises and the kitchen. (Summary Suspension Order). ABD concluded that the licensee or an employee or agent knowingly allowed illegal drug activity to occur on the licensed premises in violation of Iowa Code sections 123.49(2)(j) and 124.401. ABD further concluded that the ongoing failure of the licensee to prevent known criminal activity from occurring on the licensed premises, including activity that resulted in gunshot injuries to patrons and endangered surrounding residents, places the health, safety, and welfare of the people of the state of Iowa in sufficient danger to justify immediate suspension of the licensee s license. ABD immediately suspended the licensee s class C liquor license. The Summary Suspension Order offered the licensee the opportunity to request a hearing on the matter. (Summary Suspension Order).
Page 8 A. Emergency Suspension CONCLUSIONS OF LAW The Iowa Alcoholic Beverage Control Act is 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 Iowa and its provisions shall be liberally construed for accomplishment of that purpose. The legislature has determined it to 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 Iowa Code chapter 123. 2 The Iowa Administrative Procedure Act permits an agency to use emergency adjudicative proceedings in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate agency action. The agency may take only such action as is necessary to prevent or avoid the immediate danger to the public health, safety, or welfare that justifies use of emergency adjudication. Under these circumstances, the agency is required to issue an order, including a brief statement of findings of fact, conclusions of law, and policy reasons for the decision if it is an exercise of the agency s discretion to justify the determination of immediate danger and the decision to take specific action. 3 The agency record consists of any documents regarding the matter that were considered or prepared by the agency. 4 ABD has promulgated administrative rules regarding emergency adjudicative proceedings. Those rules require that before issuing an emergency adjudicative order, the agency shall consider factors, including, but not limited to: a. Whether there has been a sufficient factual investigation to ensure that the agency is proceeding on the basis of reliable information; b. Whether the specific circumstances which pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing; c. Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare; d. Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and e. Whether the specific action contemplated by the division is necessary to avoid the immediate danger. 5 At the time the Summary Suspension Order was issued, DMPD had already conducted an extensive investigation regarding the April 2, 2017 shooting incident. Officer 2 Iowa Code 123.1 (2017). 3 Iowa Code 17A.18A(1)-(3) (2017). 4 Iowa Code 17A.18A(6) (2017). 5 185 IAC 10.31(1).
Page 9 Robinson s supplemental report, which detailed the seizure of loose marijuana from the bar as well as admissions from Berry that an after hours party was ongoing at the licensed premises at the time of the shooting to which patrons had brought their own liquor, was included with the materials submitted for consideration to the administrator. The local authority also referenced the video of the incident in its request, which showed patrons entering and exiting the licensed premises and firing guns. At the time of the issuance of the Summary Suspension Order, the administrator was aware that five persons were injured and seven vehicles damaged by gunfire during the incident. Additionally, the administrator had information regarding Berry s assertion that he owned the business, despite records reflecting that Taylor is the sole owner of J&J Pizza Pub and the license holder. The administrator concluded that the licensee or an employee or agent knowingly allowed illegal drug activity to occur on the licensed premises in violation of Iowa Code sections 123.49(2)(j) and 124.401. The totality of the information the administrator considered supported this conclusion. The administrator was justified in the determination that immediate suspension was required in order to avoid immediate danger to health and safety. The administrator acted within the authority granted by statute in issuing the Summary Suspension Order following the April 2, 2017 shooting incident at the licensed premises. B. Administrative Complaint 1. Count I After hours consumption Iowa law prohibits a licensee and its agents or employees from selling or dispensing any alcoholic beverage or beer or permitting its consumption on the licensed premises between the hours of 2:00 AM and 6:00 AM Monday through Saturday and from 2:00 AM on Sunday until 6:00 AM the following Monday. 6 During the hours that beer, wine, and alcoholic beverages cannot be sold, no one including the licensee, permittee, or employees can consume beer, wine, or alcoholic beverages in the licensed establishment. 7 The credible evidence demonstrates that Berry and other employees of J&J Pizza Pub permitted consumption after 2:00 AM on April 2, 2017. Credible evidence presented at hearing puts the time of shooting at approximately 3 AM; that is the time that Hardy testified he received word of the shooting. Witnesses described arriving and being admitted into the bar after 2 AM and credit card receipt showed that transactions were being made after 2 AM. Additionally, the condition of the bar, with cups, beer bottles, and liquor bottles on tables, on the pool table, and on the bar at the time police entered after the shooting supports the conclusion that the licensee was permitting consumption after 2 AM. 6 Licensees granted the privilege of selling alcoholic liquor or beer on Sunday may do so between the hours of 8:00 AM on Sunday and 2:00 AM the following Monday. Iowa Code 123.49(2)(b) (2017). 7 185 Iowa Administrative Code (IAC) 4.28.
Page 10 While Berry testified at hearing that the bar had closed by the time the shooting had occurred and employees were simply cleaning up, this testimony is not credible given the photographs and video of the condition of the bar. Additionally, the video taken during the shooting shows a number of people entering and exiting the bar at will; the east entrance door is unlocked. There are multiple vehicles still in the parking lot that exit around or immediately after the shooting, reflecting that patrons were still inside the bar until right around the time of the shooting at 3 AM. 2. Count II Allowing use of liquor bottle(s) Iowa law prohibits a licensee from allowing any person other than the licensee, permittee, or employees of the licensee or permittee from using or keeping on the licensed premises any alcoholic liquor in any bottle or other container used for transporting alcoholic beverages, except under certain exceptions not relevant in this instance. 8 Berry admitted to police on April 2 that he was allowing individuals to bring their own liquor bottles into the licensed premises for the private party that was occurring and that he was selling red plastic cups and ice as set ups.. Berry provided this information to Robinson, who made note of this information in his Supplemental Report, which he prepared on April 3, 2017, one day after the conversation took place. Lieutenant Chris Scott also heard Berry admit to allowing patrons to bring their own alcohol into the bar. In admission to Berry s admission, photographs of the licensed premises after the shooting show a tequila bottle on the window ledge by the east entrance of the licensed premises, near the pool table. Additionally, a large trash bag filled at least in part with alcohol bottles was found in the bar area when police entered. A large number of red plastic cups are visible all over the bar in photographs. While Berry denied at hearing that he admitted to officers that he was allowing individuals to bring their own liquor into the licensed premises, I did not credit Berry s denial. Robinson and Scott provided credible testimony that Berry made the admission and other evidence available supports the conclusion that the licensee was allowing patrons to bring in liquor. 3. Count III Allowing illegal drugs on premises Iowa law prohibits a licensee from knowingly permitting or engaging in any criminal activity on the premises covered by the license or permit. 9 Iowa law prohibits unlawful possession of a controlled substance; marijuana is a controlled substance. 10 8 Iowa Code 123.49(2)(g) (2017). 9 Iowa Code 123.49(2)(j) (2017). 10 Iowa Code 124.401 (2017).
Page 11 When police entered the licensed premises after the shooting, they seized loose marijuana from two locations in the customer area of the bar and a baggie of marijuana from the kitchen of the licensed premises. The loose marijuana was on a tabletop and in a pocket of the pool table; it would have been plainly visible to anyone in those areas. In addition to the marijuana found in plain sight, there was credible testimony from police that the inside of the licensed premises smelled of burnt marijuana after the shooting incident. While Taylor, the licensee, was not at the licensed premises on April 2, any violation of the Alcoholic Beverage Control Act or the rules of the ABD by any employee, agent, or servant of a licensee shall be deemed to be the act of the licensee and shall subject the license to suspension or revocation. 11 Berry is clearly an agent of the licensee; Taylor stated that he is responsible for all bar operations and keeps all of the required business records. Berry was present at the licensed premises on April 2, at which time the evidence reflects that open possession and use of marijuana was taking place. The fact that the loose marijuana was in plain sight and that the odor of burnt marijuana was present permits the conclusion that Berry knowingly permitted marijuana use in the licensed premises. A violation of Iowa Code section 123.49(2)(j) has been established. 4. Count IV Allowing under aged persons in bar after 9 PM Des Moines Municipal Code section 10-8(1) prohibits a licensee and its employees or agents from allowing a person under the legal drinking age from entering or remaining in the licensed premises after 9:00 PM unless an exception is sought and granted by the chief of police. The 17 year old shooting victim was interviewed by Detective Curtiss Accola. She told Accolla that she had arrived at the bar and been admitted at 10:30 PM, then left and came back later and was subsequently readmitted. The victim reported that she was shot when she was sitting in a vehicle in the parking lot of the licensed premises with her boyfriend. I have no reason to doubt that this is the account that the victim provided Accola; it is not clear, however, whether the account that the victim provided to Accola is accurate. She is not identified in the record and there was no opportunity for the licensee to question her at hearing regarding this account. She is an underage person who was reportedly present at the licensed premises where illegal activity was taking place and where a shooting incident occurred. There are many reasons to question under these circumstances whether the account of her whereabouts that she provided to the police was accurate. There is simply not a preponderance of the evidence to conclude that the licensee was allowing underaged persons in the bar after 9 PM. 11 185 IAC 4.8.
Page 12 5. Count V Failure to keep records on premises for inspection Under Iowa law, each licensee is required to keep a daily record, in printed or electronic format, of the gross receipts of the licensee s business. The required records, as well as the premises, must be accessible and open to inspection during normal business hours. 12 Berry was asked by police to provide the licensee s daily record of gross receipts after the shooting on April 2 and was unable to do so. While Berry told police that he would be able to provide the required records with a few days, he had not done so as of the date of the hearing. Likewise, Berry did not produce any such records at hearing. A preponderance of the evidence supports the conclusion that the licensee violated this requirement. 6. Count VI Failure to display license The ABD s regulations require that all licenses, permits, or signs issued by ABD shall be prominently displayed in full view on the licensed premises. 13 When police entered the licensed premises on April 2, the liquor license was not displayed. Officers had to request that Berry retrieve the license from a back room. Under these circumstances, a violation has been proven. 7. Count VII Failure to have a music permit Des Moines Municipal Code section 10-14 requires that no person shall play or permit to be played music of any type on the licensed premises during the hours when it is prohibited to sell or dispense alcohol without a music permit. While officers credibly testified that they encountered individuals hauling DJ equipment out of the licensed premises after the shooting, the mere presence of the equipment does not establish that music was being played at the licensed premises after 2 AM. Officer Robinson confirmed with the Des Moines city clerk s office that J&J Pizza Pub had not applied for nor received a permit to play music after hours on April 2, 2017. If no music was played after hours, however, then there is no violation. Under these circumstances, the preponderance of the evidence does not support the conclusion that the licensee permitted music to be played after 2 AM at the licensed premises. C. Sanction A license or permit issued under Iowa Code chapter 123 may be suspended or revoked, or a civil penalty may be imposed on the license or permit holder by the local authority or ABD administrator, based upon violation of any of the provisions of chapter 123. Prior to suspension, revocation, or imposition of a civil penalty, the licensee or permit holder must be given written notice and an opportunity for a hearing. 14 12 Iowa Code 123.33 (2017). 13 185 IAC 4.12. 14 Iowa Code 123.39(1) (2017).
Page 13 As discussed in more detail above, four separate violations of Iowa Code chapter 123 by the licensee have been established by the local authority. 15 The local authority here requests the most severe sanction, revocation of the liquor license. While revocation is an extreme sanction, it is warranted in this case. The licensee allowed drug possession and use inside the premises and flaunted laws prohibiting after hours consumption and prohibiting patrons from bringing their own liquor into the licensed premises. With these conditions as a backdrop, a gunfight erupted in which over 80 shots were fired on the licensed premises. 16 Five individuals were wounded, multiple cars were damaged, and the risk to patrons of the bar, individuals passing by, and nearby residents was immense. The risk to the public of allowing the licensee to keep the liquor license here is simply too great. The conditions that the licensee allowed open drug use, after hours consumption of alcohol, and permission for patrons to bring their own alcohol to the premises make volatile situations like the one that occurred on April 2 nearly unavoidable. Berry, the licensee s agent and person to whom the licensee appears to have abdicated all responsibility without any oversight or control, testified during the hearing process that he can handle 95% of the issues that arise at the licensed premises, whether or not the issues involve weapons. Berry also asserted that he wands patrons at the entrance of the licensed premises in order to prohibit patrons from entering the premises with guns. It is hard to square Berry s assertion, however, with the fact that so many patrons were caught on video coming out of the licensed premises on the night of April 2 carrying and firing weapons. I cannot credit Berry s testimony that he was actively monitoring to keep weapons out of the licensed premises. Berry s stated and demonstrated reluctance to involve police, even when illegal activity is occurring on the premises, is a significant factor in the determination that revocation is warranted. The licensee s failure to produce a daily record of gross receipts is, in the grand scheme of the evidence here, a relatively minor violation. It is, however, further evidence of the licensee s blatant disregard for rules that have been put in place to protect public health and safety. ORDER IT IS THEREFORE ORDERED, pursuant to Iowa Code sections 123.39 and 123.40, that for the violations of Iowa Code chapter 123 described herein, Liquor License No. LC0041582, issued to Ruby B. Taylor d/b/a J&J Pizza Pub, shall be REVOKED. 15 The violation proven with regard to Count VI, failure to display license, is a violation of the ABD s administrative rules, not a violation of Iowa Code chapter 123. 16 For purposes of Iowa Code section 123.49(2)(j), premises includes parking lots and areas adjacent to the premises of a liquor licensee used by patrons of the licensee.
Page 14 Dated this 23rd day of May, 2017. Laura E. Lockard Administrative Law Judge cc: Ruby Taylor d/b/a J&J Pizza Pub (by electronic and first class mail) Doug Philiph, City of Des Moines (by electronic mail) Dana Wingert, City of Des Moines (by electronic mail) Michael Westlake, City of Des Moines (by electronic mail) Karen Freund, ABD (by electronic mail) Bobby Bailey, ABD (by electronic mail) Stephen Larson, ABD (by electronic mail) Josh Happe, ABD (by electronic mail) Heather Schaffer, ABD (by electronic mail) Tyler Ackerson, ABD (by electronic mail) Lolani Lekkas, ABD (by electronic mail) NOTICE 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 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 days following the issuance of a proposed decision. A notice of appeal shall be sent to the Administrator of the Alcoholic Beverages Division, 1918 S.E. Hulsizer, Ankeny, IA 50021. The notice of appeal must be signed by the appealing party or a representative and contain a certificate of service. In addition, the notice must comply with the requirements set forth in 185 Iowa Administrative Code 10.27(3). 17 17 185 IAC 10.27(1), (2), (3).