Decision Against Vivi Lu, Inc

Information contained in the decision against Vivi Lu, Inc, DBA: Fulton Food Shop before the Department of Alcoholic Beverage Control of the State of California.

Printable Document

Download a printable copy of the Decision Against Vivi Lu, Inc by clicking the PDF download button.

Certificate of Decision

In the Matter of the Accusation Against:

Respondent(s) / Licensee(s):
Vivi Lu, Inc
DBA:
Fulton Food Shop
Premises:
1801 Fulton St, San Francisco, CA 94117-1213
License(s):
Off-Sale General
Office:
Concord District Office
File:
21-545496
Reg:
19088468
Stamp 1:
Received, Alcoholic Beverage Control Office of Legal Services, July 17, 2019

Under the Alcoholic Beverage Control Act

It is hereby certified that, having reviewed the findings of fact, determination of issues, and recommendation in the attached proposed decision, the Department of Alcoholic Beverage Control adopted said proposed decision as its decision in the case on June 26, 2019. Pursuant to Government Code section 11519, this decision shall become effective 30 days after it is delivered or mailed.

Any party may petition for reconsideration of this decision. Pursuant to Government Code section 11521(a), the Department’s power to order reconsideration expires 30 days after the delivery or mailing of this decision, or if an earlier effective date is stated above, upon such earlier effective date of the decision.

Any appeal of this decision must be made in accordance with Business and Professions Code sections 23080-23089. For further information, call the Alcoholic Beverage Control Appeals Board at (916) 445-4005, or mail your written appeal to the Alcoholic Beverage Control Appeals Board, 1325 J Street, Suite 1560, Sacramento, CA 95814.

On or after August 27, 2019, a representative of the Department will contact you to arrange to pick up the license certificate.

Sacramento, California

Dated: July 17, 2019

Matthew D. Botting
General Counsel

Proposed Decision

In the Matter of the Accusation Against:

Respondent:
Vivi Lu, Inc
DBA:
Fulton Food Shop
Premises:
1801 Fulton St, San Francisco, CA 94117-1213
License(s):
Off-Sale General
File:
21-545496
Reg:
19088468
License Type:
21
Word Count Estimate:
39,318
Reporter:
Max Contreras, CSR-13876, Atkinson-Baker Reporters

Regarding its Type-21 Off-Sale General License under the State Constitution and the Alcoholic Beverage Control Act.

Administrative Law Judge David W. Sakamoto, Administrative Hearing Office, Department of Alcoholic Beverage Control, heard this matter in San Francisco, California, on April 17, 2019.

Matthew Gaughan, Attorney, Office of Legal Services, Department of Alcoholic Beverage Control, represented the Department of Alcoholic Beverage Control. (Hereafter, “the Department”)

Richard D. Warren, attorney-at-law, represented respondent-licensee, Vivi Lu, Inc. (Hereafter, “Respondent”)

After oral evidence, documentary evidence, and evidence by oral stipulation on the record were received at the hearing, the matter was argued by the parties and submitted for decision on April 17, 2019.

In the First Amended Accusation, the Department alleged cause for suspension or revocation of Respondent’s license exists under California State Constitution, Article XX, section 22, and Business and Professions Code section 24200, subdivision (a) and (b), based on the following grounds:[1]

Count 1: ”On or about September 14, 2018, respondent-licensee’s agent or employee Ahmad Touhan Abdul Rahim, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: Four Loko malt beverage, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658(a).”

Count 2: “On or about September 14, 2018, respondent-licensee’s agent or employee Ahmad Touhan Abdul Rahim, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: distilled spirits, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658(a).”

Count 3: “On or about September 14, 2018, respondent-licensee’s agent or employee Ahmad Touhan Abdul Rahim, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: distilled spirits, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658(a).”

Count 4: “On or about November 2, 2018, respondent-licensee’s agent or employee Ahmad Touhan Abdul Rahim, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: distilled spirits, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658(a).”

Count 5: “On or about March 15, 2019, respondent-licensee’s agent or employee Osama Qamer, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: distilled spirits, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658(a).”

At the hearing, the Department requested Count 3 and Count 4 be dismissed without prejudice. The Department indicated it was unable to obtain the presence of the alleged minors in those counts at the hearing as required under section 25666.

Findings of Fact

  1. The Department filed the accusation on January 17, 2019. The Department received Respondent’s Notice of Defense on January 30, 2019. The matter was set for a hearing. The Department subsequently filed a First Amended Accusation dated March 22, 2019.[2] (Exhibit 1: Pre-hearing pleadings)
  2. On August 8, 2014, the Department issued Respondent a Type-21 Off-Sale General license for its business known as Fulton Food Shop at 1801 Fulton Street, San Francisco, California. (Hereafter the “Licensed Premises”) The Type-21 license permitted Respondent to retail in beer, wine, and distilled spirits for consumption off the licensed premises.
  3. Since being licensed, Respondent suffered the following disciplinary history:
    WordPress Data Table
  4. The the disciplinary matter under Reg.18086578 above was not yet final, but was on appeal as of the date of this hearing. The matter under Reg. 15081991 was final.

Findings Related to Count 1

  1. On September 14, 2018, as Alcoholic Beverage Control Agents West, Jimenez, and Sanders drove past the Licensed Premises, Agent West noticed some youthful people exiting the Licensed Premises in possession of tall bags commonly used to carry tall cans of alcoholic beverages. The Licensed Premises was close to the University of San Francisco campus.
  2. The agents promptly parked their car at a nearby shopping center and Agent West made his way across the street towards the Licensed Premises. He saw a youthful appearing female, [NAME REDACTED] exit the Licensed Premises in possession of a bag appearing to have an item in it. (Exhibit 4: Photo of [NAME REDACTED]) As she crossed a street, Agent West asked her if she had an alcoholic beverage in her bag and she said “yes”. She indicated she had a 4-Loko.[3] (Exhibit 5: Photo of 4-Loko can.) Agent West identified himself as an ABC agent and asked [NAME REDACTED] her age. She said she was 21. Agent West asked for her identification, but [NAME REDACTED] said she only had her school identification, but it only had her photograph and name on it. [NAME REDACTED] eventually told Agent West her birthdate was December 12, 1999, making her 18 years old that day.
  3. Agent West asked [NAME REDACTED] to show him who sold her the 4-Loko. [NAME REDACTED] agreed and Agent West followed her across the street into the Licensed Premises where she identified Respondent’s clerk, Ahmad Rahim, (Hereafter Rahim) as the person who sold her the 4-Loko. Agent West took a photo of her identifying Rahim as the seller. (Exhibit 6: Photo of [NAME REDACTED] identifying clerk)
  4. Agent West informed Rahim he sold an alcoholic beverage to [NAME REDACTED] who was a minor. Rahim told Agent West she showed him identification in the past. [NAME REDACTED] denied she ever showed false identification at the Licensed Premises. [NAME REDACTED] filled out an affidavit so stating. (Exhibit 7: Minor Affidavit)
  5. Agent West had [NAME REDACTED] open her small purse and wallet in her purse to search for any other identification she had.  Agent West found no other form of identification in her purse, wallet, or on her person.
  6. Agent Sanders, who assisted Agent West in the investigation, located Respondent’s store video recording device on the Licensed Premises. Agent Sanders used his cell phone to make a copy of the relevant footage. Agent West later viewed the copied video which showed Rahim sell the 4-Loko to [NAME REDACTED] who did not display any identification to him. (Exhibit 8: video recording)
  7. [NAME REDACTED] appeared at the hearing and was sworn as a witness. She indicated she had recently conferred with her own attorney who directed her to appear at the hearing. [NAME REDACTED] conveyed she understood her criminal case related to this matter was over. She testified her birthdate was December 12, 1999 and she purchased an alcoholic beverage at the Licensed Premises on September 14, 2018 without showing any identification. However, [NAME REDACTED] then invoked her Fifth Amendment right not to testify any further on the advice of her personal attorney.[4] The hearing was recessed while counsel for the parties had an off-the-record phone conversation with [NAME REDACTED] attorney. Thereafter, the parties represented to the ALJ that [NAME REDACTED] attorney indicated [NAME REDACTED] had not yet been formally charged with respect to her actions of September 15, 2018 at the Licensed Premises and based on the possibility that she might be criminally charged, [NAME REDACTED] was going to invoke her Fifth Amendment privilege to refuse to testify any further regarding this matter. Based upon the representation [NAME REDACTED] was still in jeopardy because her criminal matter or possible criminal case was unresolved and the fact that [NAME REDACTED] did assert her right not to testify so as to incriminate herself, the ALJ excused her from testifying any further.[5]

Findings Related to Count 2

  1. [NAME REDACTED] was born on July 25, 2000. (Exhibit 9: photo of [NAME REDACTED]) On September 14, 2018, she was 18 years old and went to visit some friends who attended the University of San Francisco. She and her friends went to the Licensed Premises. She had never been at the Licensed Premises on any prior occasion. Using her debit card, [NAME REDACTED] purchased three Buzz Ballzs, a canned alcoholic beverage, from Respondent’s clerk, Rahim.[6] Rahim did not ask to see her identification and she did not show him any identification as part of her purchase. After she made her purchase, she left the Licensed Premises.
  2. Once outside, [NAME REDACTED] was promptly contacted by ABC Agent Sanders who thought she appeared youthful, possibly under 21 years old. Agent Sanders saw [NAME REDACTED] buy the Buzz Ballzs. 7 [NAME REDACTED] initially told Agent Sanders she was 22 years old and presented him with a false identification. However, that identification made her only 21. Sanders checked with the California Highway Patrol, but it had no record of the license [NAME REDACTED] presented. Agent Sanders told [NAME REDACTED] lying to a police officer is a crime and she then admitted she was only 18 years old. [NAME REDACTED] produced an authentic identification that confirmed she was 18 years old.
  3. Agent Jimenez took [NAME REDACTED] into the Licensed Premises where she identified Respondent’s clerk, Rahim, as the person who sold her the Buzz Ballzs.
  4. [NAME REDACTED] false identification was seized and presented at the hearing. (Exhibit A: false California Driver License). She never showed it or used it at the Licensed Premises at any time. She had used it approximately twice at other locations.[8]
  5. The Licensed Premise’s video surveillance footage, Exhibit 8, showed Rahim sell [NAME REDACTED] three Buzz Ballzs. The video did not show [NAME REDACTED] used or displayed any form of identification to Rahim in making her purchase.

Supplemental Findings

  1. On November 2, 20189, Agent Sanders observed another person they suspected of being a minor purchase an alcoholic beverage at the Licensed Premises. Agent Sanders contacted Rahim about selling to that minor. Rahim denied he sold to a minor and claimed he always checked the identification of customers.

Findings Related to Count 5

  1. On March 15, 2019, 20 year old [NAME REDACTED] went to the Licensed Premises to purchase an alcoholic beverage because she heard it was easy to buy alcoholic beverages there. Once in the Licensed Premises, she selected a “Red Bull” nonalcoholic beverage and returned to the front counter. Respondent’s clerk Osama Qamer (Hereafter Qamer) obtained a 200 ml. bottle of Tito’s Vodka from the clerk’s side of the counter and sold it and the “Red Bull” to [NAME REDACTED]. [NAME REDACTED] used her cell-phone to make an electronic payment. Qamer did not ask [NAME REDACTED] for any identification and none was shown to him during that transaction. [NAME REDACTED] then exited the store.
  2. Agent Sanders witnessed [NAME REDACTED] make her purchase. He detained [NAME REDACTED] after she crossed a nearby street. Agent Sanders asked [NAME REDACTED] her age and she said she was 21, however she appeared nervous to him. After some further inquiry, [NAME REDACTED] confessed she was only 20 years old. Agent Sanders found [NAME REDACTED] in possession of a Yurok tribal identification card that stated her true birthdate of January 27, 1999, confirming she was only 20 years old that day.
  3. [NAME REDACTED] also possessed a false identification. (Exhibit B: False identification). The false identification made [NAME REDACTED] 23 years old. She said she did not show it to the clerk that night, but used it there a month earlier. Agent Sanders then released [NAME REDACTED] from the scene.
  4. Agent Sanders went to the Licensed Premises and made contact with Qamer who he saw sell the vodka and Red-Bull to [NAME REDACTED]. Agent Sanders did not directly question Qamer about his sale to [NAME REDACTED]. Qamer described [NAME REDACTED] and told Agent Sanders he knew her and that she was at least 21 years old.
  5. Qamer spoke to someone on the telephone and then gave to phone to Agent Sanders. The caller identified himself as the manager and told Agent Sanders that Qamer said he knew the minor and knew she was at least 21 years old.
  6. Agent Sanders saw a sign posted on the cash register that said “Ask for ID”.
  7. There was an electronic scanning device on/near the register. Rahim demonstrated use of the machine with his own identification to show Agent Sanders the scanner worked and read the card indicating Rahim was at least 21 years old. [NAME REDACTED] false identification was not run through the scanner to see if it could read that card. Agent Sanders never saw anyone use the scanner at the Licensed Premises.
  8. Agent Sanders filled out a Minor Affidavit based on information he learned from [NAME REDACTED]. (Exhibit C) [NAME REDACTED] did not sign the Minor Affidavit and was generally uncooperative in the investigation that day. She refused to identify the selling clerk to the agents.
  9. At the hearing, [NAME REDACTED] testified she lived and worked near the Licensed Premises. She made purchases at the store approximately once every two weeks. Sometimes she purchased alcoholic beverages and sometimes not. She purchased alcoholic beverages from Qamer at the Licensed Premises on approximately two prior occasions in late January or February 2019 using her false identification, Exhibit B. After that, Qamer stopped asking for her identification.
  10. [NAME REDACTED] false identification, Exhibit B, appeared to be a California Driver License. It contained [NAME REDACTED] photo, address, name, height, weight, eye color, hair color, and her signature. It listed an inaccurate birthdate of Jan. 26, 1996. The identification was in the landscape format, had a State of California seal hologram, and had her birthdate embossed over her photo. A black magnetic strip ran across the back of the license along with a data bar. Exhibit B was in good physical condition; it was not worn, faded, bent, blurry, discolored, tom, or appear it was tampered with. There were no indications it was a false document. [NAME REDACTED] obtained it in November 2018.
  11. Respondent’s clerk, Qamer, testified he worked for Respondent the past few months. He had not received any training from Respondent regarding alcoholic beverage sales procedures. On the weekends, he noticed there were more youthful customers patronizing the Licensed Premises. When he sold alcoholic beverages at the Licensed Premises he would ask the customers’ their age and ask for their identification. He checked the photo on the identification and its expiration date. He testified he ran California identifications through an electronic scanner that would indicate to him if the person was old enough to purchase an alcoholic beverage. The scanner could not read out-of-state identifications so he manually keyed in the birthdate and the machine determined if the person was old enough to purchase alcoholic beverages.
  12. Qamer testified that prior to March 15, 2019, [NAME REDACTED] was a regular customer at the Licensed Premises. He knew she worked in the area. Sometimes she purchased alcoholic beverages, sometimes other goods. However, he had already checked [NAME REDACTED] false identification approximately three to five times and each time it indicated she was at least 21 years old.
  13. Qamer testified that on March 15, 2019, he again asked [NAME REDACTED] to present her identification, but she was wearing some kind of electronic ear-plugs in her ears and may not have heard him. She did not present any identification. As he had checked her identification in the past, he did not insist on seeing it this time and completed the sales transaction without viewing her identification.

Supplemental Findings

  1. Respondent’s corporate president, Tony Arouk, testified that the Licensed Premises is one of four licensed businesses it operates in San Francisco. Arouk primarily worked at one of those other sites, Nob Hill Liquors. On or near September 17, 2018, Rahim informed him he was issued a citation for selling an alcoholic beverage to a minor. Rahim told him that he had checked [NAME REDACTED] identification and then stopped re-checking it. Arouk told Rahim to check customers’ identification all the time, whether he knew the patrons or not. Sometime in November 2018, Rahim again called Arouk and indicated he may have sold to another minor. Arouk then dismissed Rahim. Respondent hired Qamer to replace Rahim. Arouk was aware Rahim still worked in the area.

Legal Basis of Decision

  1. Article XX, section 22 of the California Constitution and Business and Professions section 24200, subdivision (a) provide that a license to sell alcoholic beverages may be suspended or revoked for good cause if continuation of the license would be contrary to public welfare or morals.
  2. Business and Professions Code section 24200, subdivision (b), provides that a licensee’s violation, or causing or permitting of a violation of any rules of the Department or any penal provision of California law prohibiting or regulating the sale of alcoholic beverages is also a basis for the suspension or revocation of the license.
  3. Business and Professions Code section 25658, subdivision (a), provides that every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.
  4. Business and Professions Code section 25660 provides: “(a) Bona fide evidence of majority and identity of the person is any of the following:
    “(1) A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a valid motor vehicle operator’s license, that contains the name, date of birth, description, and picture of the person.
    “(2) A valid passport issued by the United States or by a foreign government.
    “(3) A valid identification card issued to a member of the Armed Forces that includes a date of birth and a picture of the person.
    “(b) Proof that the defendant-licensee, or his or her employee or agent, demanded, was shown, and acted in reliance upon bona fide evidence in any transaction, employment, use, or permission forbidden by Section 25658, 25663, or 25665 shall be a defense to any criminal prosecution therefor or to any proceedings for the suspension or revocation of any license based thereon.”
  5. Business and Professions Code section 25666 states: “(a) In any hearing on an accusation charging a licensee with a violation of Sections 25658, 25663, and 25665, the department shall produce the alleged minor for examination at the hearing unless he or she is unavailable as a witness because he or she is dead or unable to attend the hearing because of a then-existing physical or mental illness or infirmity, or unless the licensee has waived, in writing, the appearance of the minor. When a minor is absent because of a then-existing physical or mental illness or infirmity, a reasonable continuance shall be granted to allow for the appearance of the minor if the administrative law judge finds that it is reasonably likely that the minor can be produced within a reasonable amount of time.
    “(b)(1) Nothing in this section shall prevent the department from taking testimony of the minor as provided in Section 11511 of the Government Code.
    “(2) This section is not intended to preclude the continuance of a hearing because of the unavailability of a minor for any other reason pursuant to Section 11524 of the Government Code.”
  6. Government Code Section 11513, subdivision (e), provides: “The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.”
  7. Evidence Code Section 913, subdivision (a), states: “If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”
  8. Evidence Code Section 940 states: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”

Determination of Issues

  1. As to Count 1, cause for suspension or revocation of Respondent’s license does exist under article XX, section 22 of the California Constitution and Business and Professions Code sections 24200, subdivision (a), because on or about September 14, 2018, respondent-licensee’s agent or employee Ahmad Touhan Abdul Rahim, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: a Four-Loko malt beverage, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658, subdivision (a).” (Findings of
    Fact ¶¶ 5-11)
  2. The evidence established Respondent’s clerk, Rahim, sold an alcoholic beverage, a can of Four-Loko, to [NAME REDACTED] at the Licensed Premises. Agent West saw [NAME REDACTED] exit the premises with the Four-Loko alcoholic beverage. [NAME REDACTED] admitted to Agent West she was born on December 12, 1999, making her only 18 years old. She identified Rahim as the one who sold her the Four-Loko. The Licensed Premises video surveillance system captured Rahim selling the Four-Loko to [NAME REDACTED] without checking her identification.
  3. At the hearing, the Department called [NAME REDACTED] as a witness for examination as required under section 25666. She testified to her birthdate and the fact she purchased an alcoholic beverage at the Licensed Premises on September 14, 2018 without showing any identification. She thereafter invoked her Fifth Amendment right not to testify further. After the parties’ attorneys confirmed with [NAME REDACTED] private counsel that the criminal aspect related to [NAME REDACTED] was still pending and unresolved, she was not asked any further questions about what occurred that night, including any statements she made, written or otherwise, denying the use of a false identification at the Licensed Premises at any time.
  4. The Fifth Amendment to the United States Constitutions states, in part: “(n)o person…shall be compelled in any criminal case to be a witness against himself.” The California Constitution, article 1, section 15, states in part:” [p]ersons may not…be compelled in a criminal cause to be a witness against themselves…”Evidence Code section 940 states: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.” However, the incrimination involved is limited to incrimination in the commission of a punishable crime.” [Citation.] (People v. Whelchel (1967) 255 Cal.App.2d 455, 460, 63 Cal.Rptr. 258) The privilege has been extended so that it is available to a person appearing only as a witness in any kind of proceeding where testimony can be compelled. (Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 62, 178 Cal.Rptr. 358.) In Kastagar v. United States, 406 U.S. 441, 444, the United States Supreme Court determined that the privilege against self-incrimination extends to “… any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory…”
  5. As [NAME REDACTED] criminal matter was pending or she was otherwise in jeopardy of criminal prosecution, asserting her privilege not to disclose any matter that may have tended to incriminate her on advice of her private counsel seemed timely and appropriate.[9] As such, further questioning of [NAME REDACTED] was terminated by the ALJ and she was excused.
  6. Evidence Code section 913, subdivision (a), states that when a witness asserts a privilege, the “…trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”
  7. While [NAME REDACTED] exercised her right to not incriminate herself, and no inference may be drawn therefrom, the balance of the evidence presented at the hearing including, but not limited to, Agent West’s testimony and the video recording showing Rahim sell the Four-Loko to [NAME REDACTED], was sufficient to establish Rahim sold [NAME REDACTED], a person under 21 years of age, an alcoholic beverage in violation of section 25658, subdivision (a).
  8. Respondent argued [NAME REDACTED] exercise of her privilege not to testify deprived it of an opportunity to cross-examine her about what occurred that night, especially her assertion in her affidavit, Exhibit C, that she never showed any false identification at the Licensed Premises on any occasion. In light of Evidence Code 913, the ALJ, as trier of fact, could not draw any inference because [NAME REDACTED] exercised her privilege not to incriminate herself. The fact that Respondent could not cross-examine [NAME REDACTED] was a natural consequence of a witness rightfully exercising her privilege not to incriminate herself. Also, Respondent did not provide any persuasive legal authority or added facts warranting the ALJ disallowing the privilege and directing [NAME REDACTED] to testify further at the hearing.[10]
  9. As to Count 2, cause for suspension or revocation of Respondent’s license does exist under article XX, section 22 of the California Constitution and Business and Professions Code sections 24200, subdivision (a), because on or about September 14, 2018, respondent-licensee’s agent or employee Ahmad Touhan Abdul Rahim, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: three Buzz Ballzs, to [NAME REDACTED], a person under the age of 21 years, in violation of Business and Professions Code section 25658, subdivision (a). (Findings of Fact ¶¶ 12-16)
  10. The evidence established Rahim sold three alcoholic beverage Buzz Ballz to 18 year old [NAME REDACTED] without her presenting any form of identification to him. While [NAME REDACTED] was later found in possession of a false identification, Exhibit A, there was no evidence she ever used it at the Licensed Premises or showed it to Rahim either prior to or on September 14, 2018. No false identification defense under 25660 was established. There was sufficient evidence to sustain Count 2.
  11. As to Count 3, the Department indicated it would not be able to proceed with Count 3 and requested it be dismissed without prejudice.
  12. As to Count 4, the Department indicated it would not be able to proceed with Count 4 and requested it be dismissed without prejudice.
  13. As to Count 5, cause for suspension or revocation of Respondent’s license does not exist under article XX, section 22, of the California Constitution and Business and Professions Code sections 24200, subdivision (a) and (b), because although on or about March 15, 2019, respondent-licensee’s agent or employee Osama Qamer, at said premises, sold, furnished, gave or caused to sold, furnished or given, an alcoholic beverage, to-wit: distilled spirits, to [NAME REDACTED], a person under the age of 21 years, in violation of section 25658, subdivision (a), a defense to the accusation under section 25660 was adequately established. (Findings of Fact ¶¶ 18-30)
  14. The evidence established that on March 15, 2019, Qamer sold 20-year old [NAME REDACTED] a bottle of vodka, an alcoholic beverage, without checking her identification.
  15. Respondent argued Qamer’ s prior inspections of [NAME REDACTED] false identification could be the basis of a valid false identification defense under section 25660 even if Qamer did not inspect [NAME REDACTED] false identification on March 15, 2019.
  16. The Department argued a defense under section 25660 did not apply solely because Qamer did not inspect [NAME REDACTED] identification on March 15, 2019 in connection with her purchase of vodka. It contended Qamer’ s prior inspections of her false identification were irrelevant. The Department primarily relied on the plain text of 25660 and Lacabanne Properties, Inc. v. Alcoholic Beverage Control Appeals Board (1968) 261 Cal.App.2d 181, 67 Cal.Rptr. 352.[11]
  17. Generally, section 25660 provides a defense to a licensee or person accused of selling an alcoholic beverage to a minor if the person asked for, inspected, and reasonably relied on the identification provided by the customer.
  18. However, section 25660 is an affirmative defense, so a licensee has the burden of establishing all of its elements, namely, that evidence of majority and identity was demanded by the seller, shown by the buyer, and reasonably relied on by the seller.[12] To provide a defense, reliance on the document must be reasonable, that is, it was based on due diligence of the seller. This section applies to identifications actually issued by government agencies and identifications that are false replicas of government identifications.[13] A licensee or his or her employee is not entitled to rely upon an identification if it does not appear to be a bona fide government-issued identification or replica thereof if the appearance of the presenter of the identification demonstrates above mere suspicion that the holder is not the legal owner of the identification.[14] The defense is also inapplicable if the appearance of the presenter does not match the description on the identification.[15] Thus, reasonable reliance cannot be established unless the appearance of the person presenting identification indicates that he or he could be 21 years of age and the seller makes a reasonable inspection of the false identification.
  19. In this instance, [NAME REDACTED] false identification (Exhibit B) met the requirements of section 25660, subdivision (a)(1). On its face, it appeared to have been issued by a state agency, the California Department of Motor Vehicles. It contained her true name, a date of birth, her true description, and her picture.[16] It appeared carefully produced and showed no signs of tampering, undue wear and tear, or indicia of being a forgery or a false document. No evidence was presented or argument made why it should not have been reasonably relied upon as proof of [NAME REDACTED] age. Therefore, it is determined that, for purposes of section 25660, it was reasonable for Qamer to rely on it as proof [NAME REDACTED] was at least 21 years old.
  20. Based on [NAME REDACTED] photograph and her appearance, persona, demeanor, and testimony at the hearing, it is determined that [NAME REDACTED], although youthful, appeared as a person who could have been at least 21 years old.
  21. As to the Department’s primary contention that a section 25660 defense did not apply in this instance because Qamer did not inspect [NAME REDACTED] false identification on the date of the alleged violation, the Alcoholic Beverage Control Appeals Board faced this issue in 7-Eleven (2011)(AB-9081). (Hereafter Appeals Board) The Appeals Board reasoned that based on a 1959 change in the text of section 25660 that eliminated the words “immediately prior” as to when an identification had to be checked regarding the sale or service of an alcoholic beverage, a supporting California Attorney General’s Opinion regarding that text revision[17], and Lacabanne Properties, Inc. v. Department of Alcoholic Beverage Control, 261 Cal.App.2d 181, 189, 67 Cal.Rptr. 734, 739 (1968), a defense under section 25660 could be established if the minor displayed the false identification on an earlier date or dates under a narrow set of circumstances. The Appeals Board concluded that if a regular customer was:
    • 1) well known to the appellant and its employees;
    • 2) had shown identification multiple prior times;
    • 3) had the appearance of one who could be 21 years old; and
    • 4) reliance on the false identification was reasonable, a defense to the accusation under section 25660 was not lost because the identification was not shown as part of the transaction at issue.
  22. While neither a statute nor a case makes the Appeals Board’s opinions binding precedential authority on Department decisions, in this matter, its approach seems reasonable especially when, as in this matter, the actual false identification used was presented at the hearing so its quality could be closely examined, there was no dispute the involved clerk inspected it on prior occasions, and there was no legal authority presented that the identification check under section 25660 must occur immediately prior to or contemporaneously with the transaction at issue. 
  23. In this instance, [NAME REDACTED] appeared as though she could be 21. In fact, she was 20 years old on March 15, 2019. She had shown her false identification to Qamer on two to five prior occasions when she purchased alcoholic beverages from Qamer. As she lived and worked in the immediate neighborhood, she was a regular customer of the Licensed Premises, patronizing it once every few weeks. She made additional purchases from Qamer that did not include alcoholic beverages. [NAME REDACTED] and Qamer were familiar with one another. [NAME REDACTED] false identification was brought to the hearing for examination by the ALJ and the parties. It contained the required features set forth in section 25660 for an identification. It appeared professionally produced with no obvious signs it was a forged or a fraudulent document. Neither evidence nor argument was presented why it should not have been relied upon as proof of [NAME REDACTED] age. Therefore, based upon the aforementioned considerations and using the criteria set forth by the Appeals Board in 7-Eleven (AB-9081), Respondent met its burden under section 25660 in defense to Count 5.
  24. As to any further allegations raised in the accusation or defenses thereto, they are found without merit.

Penalty

  1. Section 25658.1, subdivision (b), states:” Notwithstanding Section 24200, the department may revoke a license for a third violation of Section 2565 8 that occurs within any 36-month period. This provision shall not be construed to limit the department’s authority and discretion to revoke a license prior to a third violation when the circumstances warrant that penalty.”
    “(c) For purposes of this section, no violation may be considered for purposes of determination of the penalty until it has become final.”
  2. The Department’s penalty guidelines are in California Code of Regulations, title 4, section 144. (Hereafter rule 144)
  3. Under rule 144, the presumptive penalty for a first violation for selling, giving, or furnishing an alcoholic beverage to a minor in violation of section 25658 is a 15 day suspension. The second violation of that section that occurs within 36 months of the initial violation specifies a 25 day license suspension. License revocation is recommended for the third violation of 25658 that occurs within 36 months of the first violation.
  4. Rule 144 also permits adjustment to the presumptive penalty based on the presence of aggravating and mitigating factors, some of which are listed therein. Rule 144 indicates the list of specified aggravating and mitigating factors is a non-exhaustive list.
  5. The Department argued Counts 1, 2, and 5 should be sustained and the license revoked. The Department contended there were multiple violations that occurred during a short timeframe constituting a continuous course of conduct which rule 144 specified lists as an aggravating factor. It argued there were no mitigating factors to consider and the Licensed Premises had a local reputation for selling alcoholic beverages to minors. As to Count 5, it argued Qamer’s reliance on his prior inspections of [NAME REDACTED] false identification did not constitute a defense under section 25660. Finally, it contended the violations were due to poor management, possibly because Respondent was also managing three other licensed premises in San Francisco.
  6. As to Count 1, Respondent argued it was foreclosed from examining [NAME REDACTED] because she asserted her right not to incriminate herself. As to Count 2, Respondent pointed out [NAME REDACTED] was in possession of a false identification. As to Count 5, Respondent argued a defense to the accusation under section 25660 was established because Rahim had checked [NAME REDACTED] false identification on earlier occasions and it was reasonable for him to have relied on her false identification. Respondent contended the prior disciplinary action currently under appeal, Exhibit 3, should be wholly disregarded in this matter. Lastly, Exhibit 2, reflecting the only prior final disciplinary action, was four years old.
  7. The evidence established that on September 14, 2018, Rahim sold alcoholic beverages to two minors, in separate transactions, without confirming either was at least 21 years old. The Licensed Premises was near the University of San Francisco, a place where many students and visitors would likely be just under or just over 21 years old and Qamer confirmed many youthful appearing persons patronized the Licensed Premises, especially on weekends. That environment, combined with at least one final disciplinary action for selling or furnishing alcoholic beverages to minors, warranted Respondent’s employees to be especially careful when selling alcoholic beverages to youthful appearing persons, such as [NAME REDACTED] and [NAME REDACTED].
  8. Respondent had one final prior disciplinary action under Reg: 15081991 as reflected in Exhibit 2. However, that accusation consisted of three counts involving Respondent’s employees selling, furnishing, or giving alcoholic beverages to three different minors on two different dates in 2014. That matter should have triggered Respondent to be extremely mindful of its practices with respect to future sales of alcoholic beverages at the Licensed Premises. Respondent did not present any particular evidence regarding any added education, training, or over-sight it undertook in response to that accusation to prevent future sales of alcoholic beverages to minors. Rahim testified he did not initially receive any particular training from Respondent regarding the selling of alcoholic beverages. Respondent had some type of electronic scanner available, but it was not used with respect to the transactions involving [NAME REDACTED] and [NAME REDACTED]. Now, there have been five section 25658 violations in fewer than four years.[18] However, the penalty below did give some mitigative weight to the fact that Rahim, at least as to minor [NAME REDACTED], had checked her false identification with respect to her prior purchases of alcoholic beverages from him.
  9. The standard penalty set out in rule 144 is not appropriate in this instance. The circumstances presented in this case warrant a higher penalty, yet short of the complete license revocation the Department sought. The penalty must include a significant incentive for Respondent’s future compliance with the law and prudent exercise of license privileges. Such penalty is set forth below in the Order.
  10. Except as addressed in this decision, all other assertions or arguments advanced by the parties with respect to the penalty are without merit.

Order

  1. Count 1 and Count 2 of the First Amended Accusation are sustained.
  2. As to Counts 1 and 2, Respondent’s license is revoked, however, such revocation is stayed upon the condition that no subsequent final determination be made, after hearing or upon stipulation and waiver, that cause for disciplinary action occurred within 36 months from the effective date of this decision; that should such determination be made, the Director of the Department of Alcoholic Beverage Control may, in his discretion and without further hearing, vacate the stay order and impose the stayed penalty; and should no such determination be made, the stay shall become permanent. In addition, the license shall be suspended for 30 consecutive days.
  3. Count 3 of the First Amended Accusation is dismissed without prejudice. [19]
  4. Count 4 of the First Amended Accusation is dismissed without prejudice.
  5. Count 5 of the First Amended Accusation is dismissed with prejudice.

Dated: May 14, 2019

David W. Sakamoto
Administrative Law Judge

Adopted by Jacob A. Appelsmith on June 26, 2019

Footnotes:

  • [1] All further section references are to the California Business and Professions Code unless noted otherwise.
  • [2] Analogous to civil procedure practice, the First Amended Accusation supersedes the original Accusation.
  • [3] 4-Loko was a brand of alcoholic beverage labeled 14% alcohol by volume.
  • [4] [NAME REDACTED] private attorney was not present at the hearing. [NAME REDACTED] appeared to be reading from a note in asserting  her Fifth Amendment right not to testify and verbally indicated she was doing so at the direction and advice of her attorney.
  • [5] Respondent expressed its desire to cross-examination [NAME REDACTED] especially regarding her Minor Affidavit wherein she affirmed she had never displayed any false identification at the Licensed Premises on any occasion.
  • [6] “Buzz Ballz” was the brand name of an alcoholic beverage packaged in 200 ml. sealed cans that were somewhat spherical in shape with a pull top opening. [NAME REDACTED] purchased one set of two cans that were pre-packaged together as one unit. Her purchase also included a third single Buzz Ballz can, but as it was opened by the time the agents detained [NAME REDACTED], they discarded that can and kept the single pre-packaged two-can pack as evidence. (Exhibit 10: photo of Buzz Ballz cans, Exhibit 14: one “Buzz Ballz” pre-packaged two-can pack)
  • [7] [NAME REDACTED] made her purchase just after [NAME REDACTED], referred to in Count 1, made her purchase.
  • [8] Because there was no evidence [NAME REDACTED] ever used her false identification at the Licensed Premises, it was not admitted in evidence as being irrelevant in this matter.
  • [9] While the Department’s accusation focused on disciplining Respondent for its clerk improperly selling an alcoholic beverage to [NAME REDACTED], she may have been subject to criminal prosecution for her actions that day such as a violation of section 25658, subdivision (b) (A minor purchasing an alcoholic beverage.); section 25658.5 (Attempted purchase of an alcoholic beverage by a minor.); or section 25662 (Possession of alcoholic beverages by a minor in public place or place open to the public.)
  • [10] Also, Respondent did not call Rahim to testify about his September 14, 2018 transaction with [NAME REDACTED] or any other transactions Rahim had with her and whether those did or did not involve her use of a false identification. His hearsay statement to Agent West that he had checked or seen her identification in the past was insufficient to establish a defense under 25660. There was no evidence presented as to what he saw and whether reliance on it was reasonable.
  • [11] In that case, the court indicated the false identification defense under section 25660 was not lost when one employee had checked the minor’s false identification upon entry to the licensed premises just before a second employee who served the alcoholic beverage pursued an inadequate inquiry of the minor’s identification. At the hearing, the Department did not cite any added authority that directly supported its position that under section 25660 an identification check must be made immediately prior to or contemporaneously with the transaction at-issue.
  • [12] Lacabanne Properties, Inc. v. Department of Alcoholic Beverage Control, 261 Cal. App. 2d 181, 189, 67 Cal. Rptr. 734, 739 (1968); 27 Ops. Atty. Gen. 233,236 (1956).
  • [13] Dept. of Alcoholic Beverage Control v. Alcoholic Control Appeals Bd. (Masani), 118 Cal. App. 4th 1429, 1444-45, 13 Cal. Rptr. 3d 826, 837-38 (2004).
  • [14] Masani, 118 Cal. App. 4th at 1445-46, 13 Cal. Rptr. 3d at 838; 5501 Hollywood, Inc. v. Department of Alcoholic Beverage Control, 155 Cal. App. 2d 748, 753, 318 P.2d 820, 823-24 (1957); Keane v. Reilly, 130 Cal. App. 2d 407, 411-12, 279 P.2d 152, 155 (1955); Conti v. State Board of Equalization, 113 Cal. App. 2d 465, 466-67, 248 P.2d 31, 32 (1952).
  • [15] 5501 Hollywood, 155 Cal. App. 2d at 751-54, 318 P.2d at 822-24; Keane, 130 Cal. App. 2d at 411-12, 279 P.2d at 155.
  • [16] Obviously, Exhibit C did not contain [NAME REDACTED] actual date of birth.
  • [17] The California Attorney General opined that “[I]t must be concluded that by the elimination of the words “immediately prior” from section 25660 in the 1959 amendment, the time requirement for the presentation of documentary evidence has been altered. Thus, the evidence of majority and identity need no longer be shown immediately prior to the alleged offense to constitute a valid defense. However, it is clear that a defense is not made out unless it is proved that the required documentary evidence was demanded, that is was shown, and that the defendant-licensee, his agent or employee, was acting in good faith in reliance upon that prior showing at the time of the alleged violation.” 36 Ops.Cal.Atty.Gen. 124, 126 (1960).
  • [18] Exhibit 3 was not admitted in evidence and the ALJ did not consider it for any purpose in this matter.
  • [19] Counts 3 and 4 were not litigated so dismissed without prejudice. Count 5 was dismissed with prejudice because it was litigated at the hearing.