Precedential Decision 25-02-E

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

In the Matter of the Accusation Against:

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

Proposed Decision

Administrative Law Judge Alberto Roldan, Administrative Hearing Office, Department of Alcoholic Beverage Control, heard this matter, via videoconference, on October 12, 2023.

Erica Navarro, Attorney, represented the Department of Alcoholic Beverage Control (Department).

Adam Koslin, Attorney, represented the respondent, 7 Eleven, Inc. (Respondent).

The Department seeks to discipline the Respondent’s license on the grounds that, on or about June 22,2023 the Respondent, through its agent or employee, Estalina Valentin, sold, furnished, gave, or caused to be sold, furnished, or given, an alcoholic beverage, to wit: malt beverage, to Marisa Arroyo, an individual under die age of 21 years in violation of Business and Professions Code section 25658(a)‘ (Exhibit D-1).

The Department further alleged that there is cause for suspension or revocation of the license of the Respondent in accordance with section 24200 and sections 24200(a) and (b). The Department further alleged that the continuance of the license of the Respondent would be contrary to public welfare and/or morals as set forth in Article XX, Section 22 of the California State Constitution, and sections 24200(a) and (b). (Exhibit D-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 October 12, 2023.

Findings of Fact

1. The Department filed the Accusation on July 20,2023. On August 23, 2022, the Department issued the Respondent a type 20, off-sale beer and wine license for the above-described location (Licensed Premises). (Exhibit D-1)
2. There is no record of prior Department discipline against the Respondent’s license.
3. Marisa Arroyo (Arroyo) was born on March 17, 2004, and was 19 years old on June 22,2023. (Exhibit D-3) Alyssa Ramirez (Ramirez) was 22 years old on June 22, 2023. On that date, Arroyo and Ramirez were detained by agents of the Department after they were observed purchasing a case of 12 bottles of Seagram’s Escapes branded malt beverage at the Licensed Premises. Prior to being detained, Department Agents V. Kurian (Kurian) and A. Sam (Sam) saw Arroyo and Ramirez arrive in the parking lot of the Licensed Premises in a white car. Arroyo was driving and Ramirez was in the passenger seat when they parked. The agents were on a general enforcement assignment and were in plain clothes. The two women drew their attention because they looked potentially under 21 years of age.
4. On June 22, 2023, the agents watched Arroyo and Ramirez enter the Licensed Premises. Kurian followed them in shortly after they entered. Sam positioned himself outside so that he could see them through the window. After entering, Kurian saw Ramirez carrying a case of 12 bottles of Seagram’s Escapes branded malt beverage (Seagram’s). Seagram’s is an alcoholic beverage that contains 3.2% alcohol by volume. (Exhibit D-4) Kurian watched Ramirez and Arroyo get in the line to the registers. Arroyo stood directly behind Ramirez as they waited their turn. There were two cashiers working. A female cashier who was later identified as Estalina Valintin (Valintin) gestured Arroyo and Ramirez to her register after she completed the prior transaction. (Exhibit L-1) Ramirez then walked to the counter and placed the Seagram’s in front of Valintin. Arroyo walked directly behind and to the left of Ramirez as she walked to the counter. When Ramirez stopped, Arroyo stopped about one to two feet behind Ramirez and remained there during the transaction. (Exhibit L-1) Kurian watched the transaction from two to three feet away. (Exhibit L-1)
5. Ramirez interacted with Valintin. After Ramirez presented the case of Seagram’s at the counter, Valintin scanned it and then asked only Ramirez for identification. Valintin did not interact with Arroyo at any point during the transaction. Ramirez produced an identification after Valintin requested it. Valintin looked at it briefly, then scanned it into the register to confirm that Ramirez was old enough to make the purchase. Valintin returned Ramirez’ identification. Ramirez then attempted to pay for the Seagram’s using a debit card and the debit card reader at the counter. Kurian saw that Ramirez appeared to have difficulty with the number entry. Kurian heard Ramirez remark that the card was Arroyo’s. Valintin was closer to Ramirez and Arroyo than Kurian was, when this remark was made. Kurian then saw Ramirez converse with Arroyo. After their conversation, Ramirez re-entered the PIN number on the reader and the transaction was completed. After completing the transaction, Ramirez picked up the Seagram’s and walked out of the Licensed Premises. Arroyo followed directly behind her.
6. Kurian followed them out and saw Sam detain them. Sam and another Department agent stopped Ramirez and Arroyo as they were approaching the white car to leave. The agents showed their badges and identified themselves as law enforcement. Ramirez and Arroyo produced State of California identifications that confirmed their ages and identities. Sam photographed Arroyo (Exhibit D-2) and the Seagram’s that Ramirez was carrying (D-4) on that date. Sam later printed
   Arroyo’s identifying information from the California Department of Motor Vehicles system. (Exhibit D-3) During the investigation, the Agents determined that Arroyo’s debit card was used by Ramirez to purchase the Seagram’s.
7. After Kurian reentered the Licensed Premises on June 22,2023, he contacted Valintin. regarding the sale to Ramirez and Arroyo. Valintin admitted that she had sold to Ramirez and that she had checked her identification. Kurian confirmed Valintin’s identification. During the hearing, a video of the transaction was played in its entirety. There was no audio to the video. (Exhibit L-1) Valintin testified in this matter. Valintin testified that the transaction for the Seagram’s was by Ramirez, and that she did not believe Arroyo was part of the transaction even though she was aware she was there. Valintin testified that the scanning of an identification is not optional and that she looked at and scanned Ramirez’ identification. The scanner will tell you if the identification is valid for age and it will not accept an expired identification. Valintin did not address in her testimony if she heard the remark about the debit card being Arroyo’s, or if she heard a discussion between Arroyo and Ramirez about the PIN number.

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 25660 provides Chat:
1. 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 Aimed Forces that includes a date of birth and a picture of the person.
2. 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. 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 June 22, 2023, the Respondent’s clerk, Valintin, inside the Licensed Premises, sold a case of alcoholic beverages to both Ramirez and Arroyo. While Ramirez was 22 years old, Arroyo was a person under the age of 21. Because of this, tire sale was in violation of Business and Professions Code section 25658(a), as alleged in the Accusation. (Findings of Fact 1-7)
6. The evidence established that on June 22, 2023, Arroyo was 19 years old. Arroyo accompanied Ramirez while Ramirez purchased a case of Seagram’s, in the Licensed Premises, under circumstances that established that the purchase was a joint purchase for both Arroyo and Ramirez. The transaction communicated to Valintin that Arroyo was more than an active bystander and that she was actively involved in the transaction. Under the circumstances, Valintin had a duty to check the identification of both Ramirez and Arroyo. While Valintin completed her statutory obligation to check Ramirez’ identification, Valintin completed the transaction without asking Arroyo for identification or asking her any age-related questions, even though Arroyo appeared consistent with her chronological age of 19. (Findings of Fact 2-7)
7. The Respondent argued that Valintin reasonably concluded that the transaction was only with Ramirez and that there was no violation of section 25658(a) because Ramirez was 22 years old and of legal age to purchase alcoholic beverages. The Respondent pointed out that there was no evidence of Arroyo selecting the Seagram’s, carrying or interacting with the case of Seagram’s, or expressing that she was going to consume the Seagram’s at any point during the transaction with Valintin. This argument would have more weight if the only evidence was the mere presence of Arroyo near Ramirez during the transaction, without more. (Findings of Fact 2-7)
8. However, the evidence in this matter establishes that Arroyo was more than a bystander and that she was an active part of the purchase. Arroyo’s debit card was used for the purchase. Ramirez openly remarked in Valintin’s presence that the debit card was Arroyo’s. This occurred when Ramirez failed to enter the PIN number correctly during her first attempt to use the debit card. Ramirez then turned and conversed with Arroyo before attempting to enter the PIN number again. It was only after the conversation with Arroyo that Ramirez was able to enter the PIN number correctly and pay for the Seagram’s. This alone should have alerted Valintin that the purchase was for Ramirez AND Arroyo. Further, Ramirez was purchasing a 12-bottle case of Seagram’s which would have further reinforced to Valintin that she should have checked both of their identifications since the amount being bought had servings for more than one person. (Findings of Fact 2-7) Given the active role that Arroyo took in the purchase, Respondent’s argument that the decision in Ruiz v. Safeway, Inc. (2012) 209 Cal.App.4th 1455 should have some application to the analysis of this case is misplaced.
9. The Department has established that on June 22,2023, Valintin did not request identification from Arroyo under circumstances where Ramirez and Arroyo were both purchasing the Seagram’s. It is undisputed that Arroyo was 19 years old and appeared consistent with her age. The Department has met its burden of proof that there was a violation of section 25658(a).(Findings of Fact 2-7)
10. Except as set forth in this decision, all other allegations in the accusation and all other contentions of the parties lack merit.

Penalty

The presumptive penalty for a violation of section 25658(a) is 15 days, absent aggravating and
mitigating factors. This is the penalty sought by the Department.

There is no evidence of aggravation in this matter. The Respondent has been licensed since August 23, 2022. While the Respondent has no prior violations of this section, or any other discipline, the period of licensure is very short, so this is not a significant factor in mitigation.

There are other factors in mitigation. Evidence was received that the Respondent uses a seamier without an opt out system to assist in age restricted sales. The clerk did check for identification fi-om Ramirez, and it did not appear to be an intentional violation. The Respondent does appear to be serious about avoiding underage sales, but the circumstances of this case suggest that it needs to better train its staff on how to approach situations where multiple individuals are involved in an age restricted transaction, like an alcohol purchase.

There appear to be no other factors in mitigation or aggravation applicable to this violation. The
penalty recommended herein complies with rule 144.

Order

The Respondent’s on-sale beer and wine license is suspended for 10 days.

Dated: October 13, 2023

Administrative Law Judge: Alberto Roldan

Footnotes

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