Precedential Decision 25-01-E

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BEFORE THE
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
OF THE STATE OF CALIFORNIA

In the Matter of the Accusation Against:

Mama For Dios

Dba: Mama For Dios

8722 W 3 Street

Los Angeles, California 90048-3804

Licensee(s).

File No.:
47-624075
Reg No.:
23093979
PRECEDENTIAL DECISION No.:
25-01-E

Designation as Precedential Decision

Pursuant to Government Code Section 11425.60, the Department of Alcoholic Beverage Control hereby designates as precedential its decision, dated October 13, 2023, in the above-referenced action. This decision is designated precedential effective May 1, 2025.

Joseph McCullough, Director
Department of Alcoholic Beverage Control
Sacramento, California

Decision Under Government Code Section 11517(c)

The above-entitled matter having regularly come before the Department on November 6, 2024, for decision under Government Code Section 11517(c) and the Department having considered its entire record, including the transcript of the hearings held on February 8, 2024, and February 21, 2024, before Administrative Law Judge Matthew G. Ainley, and good cause appearing, the following decision is hereby adopted:

Sean D. Klein, Attorney, represented the Department of Alcoholic Beverage Control.

Adam N. Koslin, attorney-at-law, represented respondent Mama For Dios.

The Department seeks to discipline the Respondent’s license on the grounds that, on or about August 1, 2023, the Respondent, through its agent or employee, sold, furnished, or gave alcoholic beverages to Morgan Leigh, an individual under the age of 21, in violation of Business and Professions Code section 25658(a).(Exhibit 1.)

The Department also seeks to discipline the Respondent’s license on the grounds that, on three separate dates, the Respondent failed to comply with two conditions relating to amplified music in violation of section 23804. (Exhibit 1.)

Oral evidence, documentary evidence, and evidence by oral stipulation on the record was received at
the hearing. The matter was argued and submitted for decision on February 21, 2024.

Findings of Fact

  1. The Department filed the accusation on November 28,2023.
  2. The Department issued a type 47, on-sale general eating place license to the Respondent for the
    above-described location on June 11,2021 (the Licensed Premises).
  3. There is no record of prior departmental discipline against the Respondent’s license.
  4. On May 22, 2021, the Respondent executed a petition for conditional license. The petition for
    conditional license sets forth seven conditions which attached to the license when it issued. (Exhibit
    DIO.) Two of these conditions are as follows:
  5. 2. There shall be no amplified music audible beyond the area under the control of the licensee(s)
    as depicted on the most recently certified ABC-257.

    6. The use of any amplifying system or device is prohibited on the patio area, and the use of any such system or device inside the premises shall not be audible outside tire premises.

  6. Morgan Leigh was born on October 30, 2004. On August 1, 2023, she participated in a minor decoy operation conducted by the Department. On that date she was 18 years old.
  7. Leigh appeared and testified at the hearing. On August 1, 2023, she wore a green sweatshirt, black pants, and tennis shoes. A necklace was visible outside the sweatshirt. (Exhibits D4 & D6.)
  8. On August I, 2023, Leigh entered the Licensed Premises with Jena Mozayan. They were seated by the hostess. A waitress, Monica Arredondo Tiscareno approached them and asked what they wanted to drink. Leigh asked if they had any bottled beer. Arredondo said that they did, and Leigh ordered a Corona.
  9. Arredondo asked to see Leigh’s ID. Leigh showed Arredondo her California driver license. (Exhibit D3.) Arredondo looked at the ID for few seconds. Arredondo did not ask any age-related questions. Arredondo obtained a bottle of Corona and served it to Leigh. (Exhibits D7-D8.)
  10. Various agents contacted Leigh and escorted her outside. They subsequently escorted her upstairs, where one of the agents asked her to identify the person who served her the beer. Leigh identified Arredondo. A photo of the two of them was taken. (Exhibit D6.)
  11. The Respondent’s policy provides that all employees must undergo training and show their alcohol certificate when hired. Employees are required to ask for and see IDs in connection with the sale of alcohol. Any employee who serves alcohol to a minor is to he immediately terminated. Arredondo was terminated as a result of the incident. (Exhibit A.)
  12. On September 22, 2022, Supervising-Agent-in-Charge G. Sanchez arrived at the Licensed Premises around 9:30 p.m, He parked on a nearby residential street, approximately 40-50 feet from the Licensed Premises, close to its parking lot. Pie rolled down his window and could hear music emanating from the Licensed Premises. The music was moderately loud—it was possible to still have a conversation.
  13. Pie exited the vehicle and walked around the neighborhood. He could still hear the music when he was 75-90 feet away from the Licensed Premises, including in front of various residences.
  14. SAC Sanchez entered the Licensed Premises. He identified himself and asked to speak to a manager. He informed the manager that the Department had received some noise complaints, particularly m relation to the second floor. The manager lowered the sound to a level SAC Sanchez thought was reasonable.
  15. The Department continued to receive noise complaints, albeit fewer of them. Accordingly, on May 4, 2023, SAC Sanchez went to the Licensed Premises. He arrived at approximately 10:00 p.m. and parked across the street. He exited and walked around the area. He could hear music coming from the Licensed Premises at a distance of 75-90 feet. Once again, the music was moderately loud.
  16. SAC Sanchez entered the Licensed Premises and spoke to a different manager. He explained the problem and described the complaints the Department had been receiving. The manager was very cooperative and turned the volume down immediately.
  17. The Department continued to receive noise complaints about the Licensed Premises, so SAC Sanchez returned to the Licensed Premises on May 18,2023. He parked across the street from the Licensed Premises, a distance of approximately 75-80 feet. He rolled down the window and could hear music emanating from die Licensed Premises. It was the loudest he had heard it on his visits.
  18. SAC Sanchez entered the Licensed Premises and spoke to a manager, Francisco Sanchez (no relation). SAC Sanchez informed him of the continuing problem. He also informed him that, although the employees were generally cooperative, they kept playing the music too loud. SAC had one of the agents who had accompanied him write a citation for excessive noise, a violation of the Los Angeles Municipal Code.
  19. In August or September 2021, the Department received a number of noise complaints about the Licensed Premises. Based on these complaints, the Department issued a letter to die Respondent under section 24200(e). SAC Sanchez met and corresponded with Victor De La Cruz, an attorney for the Respondent about these complaints. The noise complaints decreased after these conversations.
  20. The Licensed Premises has speakers located through the Licensed Premises to play recorded music in every room. (Exhibit F.) There are no speakers on the patio, which abuts the street. The volume of the speakers is controlled by an app. The Respondent has specified a maximum volume setting and has informed all of its employees. A manager walks the outside of the Licensed Premises to ensure that the music cannot be heard.
  21. Except as set forth in this decision, all other allegations in the accusation and all other contentions
    of the parties lack merit.

Conclusions of Law

  1. Article XX, section 22 of the California Constitution and section 24200(a) provide that a license to sell alcoholic beverages may be suspended or revoked if continuation of the license would be contrary to public welfare or morals.
  2. Section 24200(b) provides that a licensee’s violation, or causing or permitting of a violation, of 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. Section 25658(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. Section 23804 provides that the violation of a condition placed upon a license constitutes the exercise of a privilege or the performing of an act for which a license is required without the authority thereof and constitutes grounds for the suspension or revocation of the license.
  5. Cause for suspension or revocation of the Respondent’s license exists under Article XX, section 22 of the California State Constitution, and sections 24200(a) and (b) on the basis that, on August 1, 2023, the Respondent’s employee, Monica Arredondo Tiscareno, inside the Licensed Premises, sold an alcoholic beverage to Morgan Leigh, a person under the age of 21, in violation of Business and Professions Code section 25658(a). (Findings of Fact 4-10.)
  6. Cause for suspension or revocation of the Respondent’s license exists under Article XX, section 22 of die California State Constitution, and sections 24200(a) and (b) on the basis that on September 22, 2022, May 4, 2023, and May 18, 2023, music was audible outside of the area under the control of the Respondent and outside of die premises in violation of conditions 2, 4, and 6, in violation of section 23804. (Findings of Fact 11-20.)
  7. Cause for suspension or revocation of the Respondent’s license exists even in the absence of an ABC-257 because it can be reasonably inferred that public streets are not part of the area under the control of the Respondent. Accordingly, SAC Sanchez’s testimony that he heard music while parked on the streets on September 22,2022, May 4, 2023, and May 18, 2023, establishes the violations of condition number 2 as alleged in counts 1, 3, and 5, even in the absence of an ABC-257.
  8. The Department has discretion in assigning a penalty under California Code of Regulations title 4 section 144 and its Penalty Guidelines Appendix. So long as the penalty is not arbitrary and capricious, the Department has discretion to impose higher or lower penalties based on the particular facts and circumstances of a case. Here, the Respondent was warned three times, once with a letter in August or September of 2021, and twice with personal visits and verbal warnings by an agent on September 22, 2022, and May 4, 2023. In die eight months between SAC’s first visit in September and his last on May 18, 2023, it is apparent the warnings were not effective as Respondent did not correct its conduct. The lack of a response by the Respondent to the warnings also demonstrates a continuing course or pattern of conduct. On each visit, SAC heard loud music emanating from the premises, and only a personal visit caused the music to be turned down. From the record, it is reasonable to infer business as usual for Respondent’s premises was operating in violation of the noise conditions.
  9. Respondent argued that the installation of a glass barrier constituted a mitigating factor under Rule 144. This argument is rejected. The glass was installed on June 8, 2021, before the premises was licensed on June 11, 2021. (Exhibit D.) Furthermore, Respondent’s witness testified the glass was put up in early June of 2021. (RTl 97-98.) The proposed mitigation did nothing to remedy the noise problems created by die Respondent’s premises well after the glass was installed.
  10. Furthermore, in a case involving separate and discrete violations of law that do not arise out of the same or continuing course of conduct, a consecutive penalty is appropriate. Since violations of license conditions and the sale of alcohol to a minor are discrete and independent violations without any relationship to each other, it is reasonable to impose consecutive penalties for such different categories of violations.

Penalty

The Department requested a 30-day consecutive suspension, based on a 20-day aggravated suspension for die condition violations and a 10-day mitigated penalty for the sale of alcohol to a minor. The Respondent argued that a 30-day penalty was harsh, citing the cooperation regarding the sale of alcohol to a minor and the responsiveness of managers to the noise complaints. The Respondent argued for a mitigated penalty to be imposed concurrently.

The record shows a long pattern of failure by the Respondent-licensee to correct their conduct. The Respondent’s premises were licensed in June 2021. A mere two or three months later in August or September SAC sent Respondent a 24200(e) letter warning them of citizen complaints regarding noise coming from their premises. While complaints decreased for a time, they picked back up in September 2022, which prompted SAC’s first direct visit to wait Respondent s managers about the noise conditions on their license. On May 4, 2023, SAC observed similar behavior by the Respondent licensee, and two weeks later on May 18, the SAC testified the music was louder than his previous visits. Respondent received the warnings before SAC issued a citation. Accordingly, there is substantial aggravation for failure to correct objectionable behavior and maintaining a course of conduct that violated conditions of their license. Moreover, as discussed above, while a concurrent penalty may be appropriate for the multiple condition violations, a separate consecutive penalty is reasonable and appropriate for the sale to the minor. The penalty herein complies with Rule 144.

Order

All counts are sustained.

For the violations of condition 2 as alleged in counts 1, 3, and 5, the Respondent’s off sale general license is suspended for a period of 15 days. For the violations of condition 6 as alleged in counts 2, 4, and 6, tire Respondent’s off-sale general license is suspended for a period of 15 days. The suspensions ordered herein are to be served concurrently, for a total of 15 days.

For sale of alcohol to a minor as alleged in count 7, the Respondent’s off-sale general license is hereby suspended for a period of 10 days. The suspension ordered herein shall be served consecutively to the 15-day suspension for tire condition violations.

Dated: November 5, 2024, Sacramento, California

Joseph McCullough

Director

Pursuant to Government Code section 11521(a), any party may petition for reconsideration of this decision. The Department’s power to order reconsideration expires 30 days after the delivery or mailing of this decision, or on the effective date of the decision, whichever is earlier.

Any appeal of this decision must be made in accordance with Chapter 1.5, Articles 3, 4 and 5, Division 9, of the Business and Professions Code. For further information, call the Alcoholic Beverage Control Appeals Board at (916) 445-4005.

Footnotes

  • [1] All statutory references are to the Business and Professions Code unless otherwise noted.