08/15/2024 | Press release | Archived content
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BEFORE THE
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
OF THE STATE OF CALIFORNIA
Dba: Sunrise Spirits and Food Co.
25862 Tournament Rd.
Santa Clarita, California 91355-2323
Licensee(s).
Pursuant to Government Code Section 11425.60, the Department of Alcoholic Beverage Control hereby designates as its precedential decision, dated December 22, 2022, in the aboveĀ referenced action.
This decision is designated precedential effective August 15, 2024.
Joseph McCullough, Director
Department of Alcoholic Beverage Control
Sacramento, California
The above-entitled matter having regularly come before the Department on December 22, 2022, for decision under Government Code Section 11517(c) and the Department having considered its entire record, including the transcript of the hearing held on April 28, 2022, before Administrative Law Judge Matthew G. Ainley, and the written arguments of the parties, and good cause appearing, the following decision is hereby adopted:
Administrative Law Judge Matthew G. Ainley, Administrative Hearing Office, Department of Alcoholic Beverage Control, heard this matter by videoconference on April 28, 2022.
Bryan D. Rouse, Attorney, represented the Department of Alcoholic Beverage Control.
Jeffrey S. Weiss, attorney-at-law, represented respondent Wayel Bachir Diab, who was present.
The Department seeks to discipline the Respondent's license on the grounds that, on or about July 8, 2021, the Respondents, through their agent or employee, sold, furnished, or gave alcoholic beverages to Daniella Silva, an individual under the age of 21, in violation of Business and Professions Code section 25658(a).[1](Exhibit 1.)
Oral evidence, documentary evidence, and evidence by oral stipulation on the record was received at the hearing. At the conclusion of the hearing, the parties were provided the opportunity to submit briefs on the issue of whether the minor was required to appear in light of the recent amendments to section 25666. The Department submitted its brief on May 6, 2022. (Exhibit 12.) On May 11, 2022, the Respondent submitted its Withdrawal of Objection to the Department Not Producing the Minor at Hearing. (Exhibit A.) The record was closed and the matter submitted for decision on that date. The Director rejected the proposed decision prepared by the Administrative Law Judge on August 30, 2022, pursuant to Government Code section 11517(c).
The defense afforded by this section is an affirmative defense. As such, the licensee has the burden of establishing all of its elements, namely, that evidence of majority and identity was demanded, shown, and acted on as prescribed [2]. This section applies to identifications actually issued by government agencies as well as those which purport to be.[3] 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 if the personal appearance of the holder of the identification demonstrates above mere suspicion that the holder is not the legal owner of the identification.[4] The defense offered by section 25660 is not established if the appearance of the minor does not match the description on the identification.[5]
While not binding, an opinion of the Attorney General is entitled to considerable weight. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 716, fn. 14.) Absent controlling authority, an Attorney General opinion as to the construction of a statute "'"is persuasive because we presume that the Legislature was cognizant of the Attorney General's construction of [the statute] and would have taken corrective action if it disagreed with that construction."'" (Ibid.; see Hunt v. Superior Court (1999) 21 Cal.4th 984, 1013; County of San Diego v. State of California (1997) 15 Cal.4th 68, 103-104.)
The accusation is sustained. The off-sale general license is suspended for a period of 10 days, with all 10 days stayed for period of 12 months commencing the date the decision in this matter becomes final, upon the condition that no subsequent final determination is made, after hearing or upon stipulation and waiver, that cause for disciplinary action occurred during the period of the stay. Should such a determination be made, the Director of the Department of Alcoholic Beverage Control may, in the Director's sole discretion and without further hearing, vacate the stay and impose the 10 days of suspension, and should no such determination be made, the stay shall become permanent.
Dated: December 22, 2022
Eric Hirata
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.