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HomeMy WebLinkAbout2019-09-05 Liquor Adjudication Board Minutes COUNTY OF HAWAII DEPARTMENT OF LIQUOR CONTROL LIQUOR ADJUDICATION BOARD MINUTES — SEPTEMBER 5, 2019 HILO LAGOON CENTRE, UNIT 230, HILO, HAWAII I. Call to Order The meeting was called to order by Chair Geraldine Giffin at 1:30 P.M., in the Meeting Room, Department of Liquor Control, Hilo Lagoon Centre, 101 Aupuni Street, Unit 230, Hilo, Hawaii. The following were present and constituted a quorum: Board Members: Geraldine Giffin, Chair Riley Smith, Vice Chair Dwayne Mukai, Board Member Andi Pawasarat, Board Member Art Taniguchi, Board Member Absent and Excused: None Others Present: Gerald Takase, Director Brandon Gonzalez, Administrative Officer Renee Schoen, Assistant Corporation Counsel (Department/Prosecutor) Craig Masuda, Deputy Corporation Counsel (Board) Dorsi Lim, Secretary to the Board & Commission Giffin: Good afternoon and welcome. What I would like to do is call the meeting of the Department of Liquor Control to order and what I would like to do first of all is to ask all of you to please silence your cell phones because we are recording this meeting. Please remember a couple of things. First of all, speak one at a time so that the recording remains clear. Secondly, microphones in the room do not amplify your voice but only record what is being said. At this time, I'd like to go around the room, starting with our Director to introduce everybody. Takase: Good afternoon, Gerald Takase, Director of the Department. Mukai: Dwayne Mukai, Board Member. Smith: Riley Smith, Vice Chair. Giffin: Geri Giffin, Chair. Masuda: Craig Masuda, Adjudication Board Counsel. Hawaii County is an Equal Opportunity Provider and Employer Taniguchi: Art Taniguchi, Board Member. Pawasarat: Andi Pawasarat, Board Member. Lim: Dorsi Lim, Secretary. Schoen: Hi, Renee Schoen, Assistant Corporation Counsel. II. Approval of Minutes Giffin: Approval of the minutes. The May 30, 2019, minutes were circulated via email on August 29, 2019. At this time, I'd like to ask for an approval of the minutes as circulated. Mukai: Move to approve. Smith: Second. Mr. Mukai moved to approve the minutes of May 30, 2019, as circulated; seconded by Mr. Smith. Giffin: Thank you. It's been moved and seconded that we approve the minutes as circulated. All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those opposed say, "No." There was no opposition by the Board Members. Giffin: The minutes are approved as circulated. The motion was carried unanimously. Ill. Hearings Giffin: Let's begin our hearing. Renee? Schoen: Good afternoon, Madam Chair and Board Members. We're going to call: 1. CASE NO. 2019-006 (1:34 P.M.) In the Matter of the Accusation Against The Keaukaha General Store, LLC, dba Keaukaha General Store (The), located at 11 Silva Street, Hilo, Hawaii. Informal hearing (Alternative II) on violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor. Breeani Sumera-Lee, Manager, was present. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 2 Schoen: At this time, Madam Chair, I am going to read the complaint which states that on or about the 20th day of June 2019, in the County and State of Hawaii, the Licensee, Keaukaha General Store, LLC, dba Keaukaha General Store, did sell, serve or furnish liquor to a minor(age 20), in violation of Section 281-78(b)(1)(A) of the Hawai'i Revised Statutes, as amended. Schoen: Madam Chair, the Licensee has chosen Alternative II, admitting to the allegations and waiving the right to a hearing and the right to appeal but requests an informal hearing to present circumstance surrounding the violation. So at this time, I will ask the Board to find the Licensee in violation. Giffin: At this time, would you please identify yourself? Sumera-Lee: My name is Breeani Sumera-Lee. I'm the Store Manager. Giffin: You may begin. I'm sorry, at this time I'd like to ask for a motion to find the Licensee in violation. Mukai: So move. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-006, be found in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor; seconded by Mr. Smith. Giffin: It's been moved and seconded that the Licensee was in fact in violation. Any discussion? There was no discussion from the Board Members. Giffin: All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: Anyone who opposes? There was no opposition by the Board. Giffin: The Chair votes "Aye." The motion is carried unanimously. The motion was carried unanimously. Giffin: Prior to assessing a penalty, you may proceed with your presentation of the circumstances surrounding the violation. Sumera-Lee: Okay. I don't want to take up too much of your time. My name is Bree and my mom and I opened the Keaukaha General Store; this year makes seven years. The hardest SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 3 � n part about opening the store is actually getting the liquor license. It's been a process, but I just wanted to share a little about the events leading up to where we are now. We opened the store seven years ago and it's been a learning process. The first violation that we ever received was from me, myself. It was the first weekend we actually had liquor and it was Super Bowl weekend. We could only afford two employees at that time. It was myself and another lady and they had a liquor sting operation just like this and the cop was behind and I didn't check the ID, I didn't do anything, and I was a crying mess. Since then, we implemented that every employee not only cashiers, but kitchen, barista, stock, every single employee, attend a liquor class and get their license, even though they're not 21, even if they're not 18; just to get it so they're aware of the rules because it is serious, and it is something that, I think that is just basic education that sometimes they just don't know. Sumera-Lee: In doing this, we have made sure that every single employee is aware of the rules and regulations; we take that very seriously. Being in that situation myself, I was only seventeen or eighteen at the time, but I was in the Tribune-Herald selling liquor to a minor. I went to court. It was embarrassing and I felt really horrible and my dad was mad, and my mom was made and it was just a really hard situation for me. That was a learning process for us, as a store, though. We made sure that all our employees not only go to liquor classes, but Department of Health classes, as well as work place bullying, and all these good things. When that happened, it was a learning experience. Sumera-Lee: Then, about five years ago, I caught a kid stealing in our store. He was by our fishing supplies and he stole a fishing lure. I saw him doing this and walked up to him and said, 'hey, why are you stealing?' And he said, "Oh, Aunty, I just bored." I told him, 'well, you should get a job. If you're bored, go do something.' He said, "Oh, I don't know how to do that." I was shocked by his answer to why he was stealing. He asked if I was going to call the cops on him, but I just wanted to know why he was stealing. Was it because he didn't have money? Did he need a couple of bucks; it was like a dollar and ninety cents. He said he just didn't have anything to do. I told him he should write a resume; but he didn't know what that was and I told him he should ask his mom and she could help him write one. But he said his mom wouldn't know what that is. Sumera-Lee: I took this situation seriously, and I ended up opening a non-profit called Hawaii Rise Foundation. What we do is help youth build a resume, try to help them secure employment and get them some job interview skills, CPR and first aid certification. This year, 2019, we have over 500 kids that we've gotten CPR certification for free. They get jobs, they start doing less bad stuff on the streets, and they're just in a better place. Financial wellness, budgeting, saving; in this process, our store tries to help local vulnerable kids. We're in the community of Keaukaha, so we're the second largest homestead in Hawaii, a lot of Hawaiian kids. We partner with Alu Like and we have kids starting from 14 years old to 18. They have a program called On the Job Training. We take in youth and we train them and these are the things that happen. You do certain things. It's been another learning experience for me, because I really want to give these youth opportunity and education to learn what it's like to have a real job; how to come to work on time, be responsible, save their money, be responsible to a team, work well with other people, learn how to have a good attitude, all these different things. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 4 Sumera-Lee: In the process, because I have youth that are between 14 and 19, only if they're of the age they can sell liquor. But, it's kind of a catch 22 for me because I know if I had one of our aunties that is normally there, that this probably wouldn't have happened. But because I have and train these youth, they're more kids that work on the register. The worse part about this whole situation is that this girl took her liquor class two days before this happened. When it all happened, we're training her, we have the Alu Like program, everything is going well, they're getting paid, they're happy, they're in a good place, people are buying pau hana time; and she actually took the person's license. She followed through with everything, but she read the date wrong. She still input the wrong number into the POS. Our POS prompts you so you can put in the birthdate and it'll tell you they're not legal. Also, you can just tell if it's horizontal or vertical. So simple; but for her, it just wasn't that simple. We ended up getting an electric reader since then, additional pamphlets, and more. She has been taken off the register so she's no longer in a cashier situation because it's so much liability for us. People of Keaukaha would hate us if we couldn't sell liquor. It's a huge liability, so now I'm revamping the whole, maybe the youth shouldn't be on the register. Maybe the youth should just do kitchen and stocking, prepping and POS work, because maybe they're not ready for it. Sumera-Lee: I'm not sure. It's just my way of saying we take this seriously and since then, I've tried to make the changes and adjustments needed to make sure that we can be compliant in all forms. I'm bummed that it happened, it's unfortunate, but again, another learning experience. We tried to write a letter just on where we were. She admitted she made a mistake. She included her understanding of what happened. That's where we are and going forward, we agreed on our job description so our cashier's not on the register anymore. I think that's just, maybe in the future we can forward and have them do more of those things, but because it's put us in a situation like this, even from a financial standpoint, it just might not be the situation I was hoping for. Maybe that's just too much information from me in general, but that's just where I'm at and I wanted to express that. We're really grateful for the Liquor work, the classes you folks have. We send everyone, you know, and it's two dollars and it's really informative; but they can only take it as seriously as they're going to take it. Obviously, I'm really disappointed in her, but am being told not to be too harsh on her. Guess she has to learn. Giffin: Thank you, and we appreciate you telling us what happened. However, I want to know if the Board Members have any questions of the Licensee. Taniguchi: I have a question. Giffin: Yes, Mr. Taniguchi. Taniguchi: Now I remember you. You look familiar and I don't forget faces, but about your non-profit, you came and talked to our Rotary Club. Sumera-Lee: Yes. Taniguchi: My questions is, as you mentioned Mr. Takase told you to look if it's vertical (the driver license). As the employer, what do you tell your employees? If there's a vertical license, that should be a red flag. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 5 Sumera-Lee: Right. Taniguchi: That's the first thing, when I was reading through this (case), and I remember when my kids got their license. They wondered why the license was that way (vertical). I did further checking and found out that it tells you what date the person will make 21. How can you punch the wrong date? That baffles me; troubled youth or whatever, it doesn't make sense to me. It's this way, so that should be a red flag. Then there's a line that tells you this is the date the person is going to be 21, this is the date the person is going to be 18. Right? Taniguchi: For cigarettes, I guess. But, it's like... Sumera-Lee: Right. And our POS system is so compatible. You type in the date and if it says 1990 whatever it is, and it's not accurate, it says not able to sell liquor. Taniguchi: Well, you shouldn't even, if you just look at this, wouldn't you know? Sumera-Lee: Well, common sense is not so common. Taniguchi: That's why I wanted to know how you stress it as an employer. They can take the class, but if it's my business, and you can punch in stuff; but if you get a license that's this way, vertical, take extra time. That's the only thing I couldn't figure out. Why not? Sumera-Lee: That was our confusion, too. Not only did she take the class, literally two days prior, but it's just shouting at her in her face. That's why I was confused because she asked for the license. If she didn't ask for it, then she would've just been like 'oh, okay, here's your six- pack of Heineken,' or whatever. She literally took it, looked at it and still went through; and that's where my concern was. Maybe there's just a maturity level, or a sense of overwhelming? Maybe they're overwhelmed in that moment, there's people coming, and their like 'okay, thank you, thank you,' in and out, you know? Taniguchi: So what date was punched in? Sumera-Lee: She punched in... Gonzalez: 1999 instead of 1998. Sumera-Lee: ...1999 instead of 1998. Mukai: I think it's 1999. Taniguchi: Oh, so it's just one year. Sumera-Lee: Yeah, so the POS read it and let the transaction take place. Taniguchi: So it wasn't like five years off? Giffin: No. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 6 Sumera-Lee: No, it was one year. I think, he didn't look that, you know, he just looked like a normal 21-year old boy. If we punched in the right date, it would've told you, though. And if you looked at the license, you would've known. Giffin: Board Members? Mukai: Chair, I have a question for our Department and then I'll address the individual. She mentioned an electronic reader. Can you explain to me how an electronic reader works? Takase: There's many, but with the newer ones, you can just slip the ID into it and it'll read it automatically. There's really no punching in anymore. That's what we recommend to the Licensees. Her case is not that unusual. I would say in half the cases we get, they asked for ID but they still sell to them. I tell them, in the class, if you say you miscalculate the date, I almost want to fine you double because there's no calculation involved anymore. But it happens a lot, so it's not that infrequent. Nobody can really explain it. They know what they're supposed to do, they ask for the ID, but maybe they're not expecting somebody that's under aged to give them their real ID. But, it does happen quite a bit. Mukai: Ok, Madam Chair, may I add to that? Giffin: You go ahead. Mukai: I actually was involved with the Liquor Commission when you applied for the license many years ago. I appreciate the fact that you gave a narrative of the situation and I also appreciate the fact that your employee owned up to it. Now that it's been explained to me what the electronic reader is, you've taken measures to ensure that this, hopefully, will never happen again. I just wanted to make a comment that it's still a violation, but the fact that you've accepted the situation and remedied the situation, hopefully, I think it's a good thing. Giffin: Thank you, Mr. Mukai. Mr. Smith? Smith: Yes, I just want to make a couple comments. I was also on the Liquor Commission when your mom came in to get the liquor license. I wanted to clarify that the challenges she had in getting the license was because of the compliance with the Fire and the Building Departments requirements, not us issuing the liquor license. Sumera-Lee: No, the process itself, in my own opinion on what we went through, the process of it and running a business and opening a business, when I look back, it was just the most difficult but best learning experience. But just for me, personally; some people might say receiving, collecting EBT. But it was just the process that you can just underestimate. It's a learning experience, but that's just my perspective. That's just my experience. Giffin: Thank you. Mr. Gonzalez? Smith: I'm just going to... Giffin: I'm sorry, yes, Mr. Smith. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 7 Smith: Just to follow up on some of the other thoughts from Mr. Mukai, you understand the rules, you understand the gravity of the rules, you understand why the rules are in place, and you understand why the Department has these sting operations to ensure compliance. If you look at our agenda, there's five situations that are here where there was non-compliance. There needs to be consequences for not following the rules. As you admitted, this is not the first infraction of your business, and as you mentioned, the community of Keaukaha really appreciates the services your company provides because you're not just selling alcohol and tobacco, but food and everything else. I sympathize with everything you're doing, appreciate everything you've done in the community, but by the same token, I think there needs to be consequences for non-compliance. Okay? Sumera-Lee: I agree. Smith: So, we'll get to it. Giffin: Mr. Gonzalez? Gonzalez: Thank you, Ms. Chair, Brandon Gonzalez, Administrative Officer. We have five cases on the agenda today. They all deal with sales to minors, done as an administrative compliance check by the Department. The Police Department was not involved. That is why there are no criminal cases involved. It's all administrative. Because we have five similar cases, if you'd give me the next few minutes to explain the compliance checks and what we did so that you will have a better framework of what occurred. Giffin: Thank you. Gonzalez: The stories and the narratives that we hear today, will all be relevant. We had minor decoys under the age of 21 go in and attempt to purchase alcohol from various establishments on June 20, 2019. We checked 32 licensed establishments. Of the 32 establishments, 5 sold liquor to minors. Of the 5 that sold, the Director said at least half, so of the 5 that sold, 2 did not check IDs at all. They just sold. That left 3 that checked IDs. The 3 that checked IDs explained it as follows: • One said they misread the date of birth • One said they mistook the date of birth and input into the register 1998 instead of 1999 • And one Licensee said they miscalculated and added the date of birth wrong. Gonzalez: Our decoys are instructed, if they're asked for the ID, to present their State of Hawaii ID. I have prepared for you their IDs and what it looks like. For Keaukaha General Store, Decoy #2 was in the store. I have a paper colored version and the other is in black and white. As it was discussed earlier by Member Taniguchi, at the very top, besides it being oriented vertically indicating that it's for a minor, says 21st and on what date they turn 21. Under that, it says 18 and exactly what date they turn 18. Gonzalez: The part that was tricky, like the Licensee described, is the human input error. But that excuse has come up for years, which is why the licenses have evolved to the point where SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 8 it has a date when they turn 21 to minimize that type of human error. Then, like the Director said, now there's a scanner where there's no input involved. You just scan the ID. Those decoys were used in all five of the cases. You can see what the actual ID looks like that they presented to the Licensee, and the various safeguards to ensure that they know that person is under 21. Mukai: I'm assuming that during your liquor classes that is specifically mentioned, about the vertical and the dates at the top. Gonzalez: It is specifically mentioned. We have slides and I pass out actual samples of the ID with the different orientations, so people can actually handle and look at it. Sumera-Lee: There's really no excuse. They take a test also. Takase: This system has been adopted nationwide. All states are doing it. Taniguchi: What do you mean? The vertical and the... Takase: Right. Every state has adopted that mechanism to distinguish between the two and we try to stress that with all of our Licensees. Giffin: Any other comments or questions? There were no other comments or questions from the Board Members. Giffin: Thank you, Mr. Gonzalez. Ms. Schoen? Schoen: The original date of license was December 27, 2012. There have been no violations in the last five years. The previous violation that she's speaking about occurred actually about seven (years ago). Based upon the fact that the Licensee took immediate responsibility, which records you have in your file, and there being no violations in the last five years, the Department is recommending a $2,000 fine with $1,250 suspended for one year from the date of service of the Decision and Order, on the condition that there be no similar violations, and that $750 be paid within 30 days upon receipt of the Decision and Order, made payable to the Department of Liquor Control. Takase: Yes, typically, our fines for selling to minors is $2,000 with $1,000 suspended; but in this case and in the next case, the Licensees came forward and the employees that actually sold came forward and wrote out an explanation of what happened. That's why (we're suspending) the extra $250. I feel like they did something to recognize their mistakes and try to correct it. I wanted to at least give them some credit for that, and to the Licensees as well. That's why it's a little different from what you'll see in the other cases. Giffin: Mr. Director, your comments are well-taken. (To Sumera-Lee) Did you have any further comments that you wanted to make? Sumera-Lee: We're just going to further educate our employees. We're still going to have them take mandatory liquor classes. That's not going to change. As we implemented other tools to try and... SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 9 Masuda: ...No, she meant as to the amount of fine. Sumera-Lee: Oh, no. No comment. We'll try our best. Thank you so much. Giffin: Great. You're welcome. Do I have a discussion, then, from the Board on the penalty, or are we all clear? Smith: I have one question. I just want to clarify. Did you end up getting the reader, the scanner thing? Sumera-Lee: We have an electronic tool that I think I sent them a receipt of the purchase. Giffin: You did. Smith: Thank you. Taniguchi: That's the one that automatically... Sumera-Lee: It's not the one that automatically does it. It stands in front and it automatically calculates in the date, so it stands, actually we have two registers we purchased and it goes side by side with the registers so they can analyze it. Smith: And what does it tell you? Sumera-Lee: The actual date of that date. So if someone came in under 21 on that same day, they would be like 'okay, today is your 21st birthday.' It's just an extra tool. The one that he's talking about that you can purchase, that you can swipe (the ID); for some reason, when I and this might also be too much information, but right now, only does for 21, so it throws it off if it's for tobacco and alcohol, because we have different rules here. Like in Virginia, they're going to...I've done a little bit of research on it and they're going to try to come out with one that (inaudible) so that same company, so that both of our, we don't have to buy two different ones when we buy it. Right now, we'd buy two, because we deal with the same thing with tobacco, right? Giffin: Anymore comments? Taniguchi: Yes, so that's not going to alleviate the problem that they're not looking at the license. The license tells you the same thing. If you're buying it just for that, you might be spending money that you don't really need to spend, I think. Sumera-Lee: Right. That's why I think the actual problem might just be having employees who have that understanding and really grasp it and take it really seriously and understand the infraction; and that they take it that seriously, that they know what's on the line. Unfortunately, as I mentioned, I wanted to give them the benefit of the doubt which is why I had this youth working. But, I just don't think, that's what I think is the root of the problem (is). Like if you see someone drowning and you keep trying to save them, but if you go up the river and you find out why they're drowning, I think that they just might not have the capacity. And that's the truth. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 10 Giffin: Thank you. Thank you very much. Mukai: Did you major in psychology? Sumera-Lee: No. Giffin: Board, may I please have a motion on the penalty as described? Mukai: I move that we accept the recommendation of our Corporation Counsel. Giffin: Do I hear a second? Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-006, be assessed a penalty in the amount of$2,000 with $1,250 suspended for one year from the date of service of the Decision and Order, on the condition that there be no similar violation of Section 281(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor, and that $750 is to be paid within 30 days upon receipt of the Decision and Order; seconded by Mr. Smith. Giffin: It's been moved and seconded that the penalty that Corporation Counsel has discussed with us be accepted. All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those opposed say, "Nay." There was no opposition by the Board Members. Giffin: The Chair also votes aye. The motion is carried. The motion was carried unanimously. Giffin: Thank you very much for coming and please note that a written Decision and Order will be prepared and served upon you, the Licensee, which should be due and payable within thirty (30) days of its receipt. Sumera-Lee: Thank you. Giffin: Thank you for coming. Sumera-Lee: Sorry for taking so long and taking so much of your time. Giffin: It's all right. Sumera-Lee: Thank you very much. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 11 Masuda: Ms. Schoen, call the next case, please. Schoen: No. 2, Case No. 2019-007; Renee Schoen, Assistant Corporation Counsel on behalf of the Department. Madam Chair, this is in the Matter of the Accusation Against Margarita Village, LLC, dba Margarita Village Mexican Cantina, located at 11 Silva Street, Hilo, Hawaii. There are two counts and I will read the Complaint. 2. CASE NO. 2019-007 (2:02 P.M.) In the Matter of the Accusation Against Margarita Village, LLC, dba Margarita Village Mexican Cantina, located at 11 Silva Street, Hilo, Hawaii. COUNT 1 Informal hearing (Alternative II) on violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor. COUNT 2 Informal hearing (Alternative II) on violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor. Ryan Williams, Owner, was present. Schoen: Count 1 states that on or about the 20th day of June 2019, in the County and State of Hawaii, the Licensee, Margarita Village, LLC, dba Margarita Village Mexican Cantina, did sell, serve or furnish liquor to a minor(Decoy One, age 20), in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended. Schoen: Count 2 states that on or about the 20th day of June 2019, in the County and State of Hawaii, the Licensee, Margarita Village, LLC, dba Margarita Village Mexican Cantina, did sell, serve or furnish liquor to a minor(Decoy Two, age 20), in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended. Schoen: The Licensee has elected to choose Alternative II, waiving their right to a hearing and right to appeal and want to present the circumstances surrounding the violation. Giffin: Will you please identify yourself? Williams: Yes, my name is Ryan Williams. Giffin: I'm sorry, I can't hear you. Williams: My name is Ryan Williams and I'm the Owner of Margarita Village. Giffin: You're the Owner? Williams: Yes. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 12 r n Giffin: Board, I'm... Gonzalez: ...Madam Chair, I need to interrupt. Giffin: I'm sorry, Mr. Gonzalez? Ms. Schoen? Schoen: I'm sorry, Madam Chair. Just procedurally, the Department is going to ask that Count 1 be dropped, dismissed. Gonzalez: In light of the Licensee taking responsibility and selecting Alternative II, the Department is prepared to dismiss one of the counts against the Licensee. Masuda: At this point, Madam Chair, the proper motion would be to dismiss Count 1, and you should take a vote on that. Giffin: Right. Mukai: Madam Chair, in light of the information provided to us by Corporation Counsel, I move that Count 1 be stricken. Giffin: Do I hear a second? Smith: Second. Mr. Mukai moved to dismiss Count 1, in Case No. 2019-007, in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor; seconded by Mr. Smith. Giffin: It's been moved and seconded that we dismiss Count 1 from what has been presented. Any discussion? Pawasarat: I just wanted to clarify, because I read it earlier but not recently, about when they happened, did they both happen at the same moment? The two sitting down at the same moment? Consecutively? Different times? Gonzalez: We had two decoys enter and both decoys were served alcohol. Pawasarat: At the same time, they entered? Gonzalez: Yes. Pawasarat: They both sat down together? Gonzalez: They entered together, they sat at the bar together and they were both served together, their own drinks. Pawasarat: Okay. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 13 Giffin: Thank you, Mr. Gonzalez. Mr. Takase? Takase: In a Dispenser bar situation, we usually will send two together rather than one. We have both there because sometimes we run into problems. It was a single transaction and we feel it's unfair to charge him two times for the same mistake. Pawasarat: That's why I wanted to clarify if it was one, then half an hour later another, or they both simultaneously sat down. Takase: We allowed the two to go forward because we were not sure what was going to happen. Once they accept responsibility and enter the plea, then we can dismiss one and just deal with just one case. Pawasarat: Thank you. Giffin: You're welcome. It's been moved and seconded that Count 1 for this Case No. 2019- 007, be dismissed. Ms. Schoen, is that what you were asking? Ms. Schoen indicated affirmatively. Giffin: All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those opposed, "Nay." There was no opposition by the Board Members. Giffin: And the Chair votes to dismiss. So we go on to Count 2. Masuda: So the motion to dismiss carries. The motion was carried unanimously. Giffin: Thank you. Masuda: Now you can go to Count 2. Can I have a motion for finding of a violation for Count 2? Mukai: So move. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-007, for Count 2, be found in violation of Section 281(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor; seconded by Mr. Smith. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 14 Giffin: It's been moved and seconded that a violation for Count 2 be accepted. All those in favor say, "Aye." The Board Members voted "Aye." Giffin: And the Chair votes "Aye." Motion is carried. There was no opposition by the Board Members. The motion was carried unanimously. Giffin: Is there anything else? I would like to ask that you please identify yourself again. Williams: Sure, my name is Ryan Williams. Giffin: Good. As I've been reminded, would you like to say anything in terms of what happened? Williams: Sure. Kaia, the bartender, was on duty that day, has written a letter and I'll just briefly touch on that. She explained, first of all, I want to acknowledge that, as has been so eloquently expressed, there is absolutely no possible explanation whatsoever. For the life of me, I cannot figure it out because, as you said, I mean, you would have to install a neon sign on the ID to make it clear that they're not of age. You know what I mean? I cannot in any way try to excuse or explain this to make it make sense. I just would like to take the opportunity to put into context what Kaia was maybe experiencing on a personal level at that moment and how she expressed it to me and in the letter. Williams: She was having, unbeknownst to me at the time, otherwise I would have taken steps to make sure she wasn't in this situation, experiencing extreme personal distress with a family member passing away, a very close friend having a major health condition that occurred that was causing her to have a lack of sleep, not eating properly; so she was in a particular physical condition where her brain wasn't functioning right. That's the only way that I can process it, that it can make any sense to me. She is fully aware that the vertical ID is an automatic red flag to take extra time to look at the date to make sure that they are 21. I know for a fact that Kaia takes it very seriously because she is the bartender that actually took it upon herself years ago, to put a 'do not serve anyone, this date, this year' sign next to the cash register. She is very adamant about not serving underage people and doing that. When she was presented with this situation, it astonished me that she was unable to fully calculate the date properly. Like I said, I'm not in any way trying to excuse it or make it seem like it's acceptable, because it's not. Williams: I also want to express that our policy is 100 percent not to serve underage people, to the point that we err on the side of caution because, as Mr. Takase touched on, oftentimes underage people won't even present their ID. Maybe to some degree, that's why it was confusing to her that someone underage would actually show their ID. Oftentimes, they give us a lot of explanations of why they don't have an ID; they forgot their ID, they lost their ID, or they left it in the car. In which case our policy is to just not serve them at that point, unless obviously, if you're 40 or 50 years old. With most people who are young, who knows? You know what I mean? SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 15 So we have a very strict policy not to serve people who don't present their ID. For someone who is underage to actually present their ID is kind of an unusual circumstance for her, maybe; that's why she wasn't prepared properly mentally, except this was an underage person. But, at any rate, she made that egregious error; she was devastated, I'm devastated, I'm still devastated. Williams: I came in to the Department and spoke with Mr. Takase and I read the letter explaining the circumstances. I've actually taken steps to try to investigate cost-effective methods of ID verification. As you pointed out, the electronic ones oftentimes don't solve that problem. It kind of puts people, to me, in more of a lazy mindset where they're not actually making the extra effort to really look at the ID. As was pointed out, too, it's not just the age; you have to verify the face, and if you're not looking at the ID, you're not verifying that it's the person's ID. I'm trying to find other ways that we can avoid this circumstance in the future, because we take it very seriously. It's not in any way, shape or form, something that we ever want to have to experience this again. Giffin: Members of the Board, do you have any questions of the Licensee? Taniguchi: I have a question. You're at the same address, but it's a totally different separate business, right? Totally separate? Williams: Yeah, so the... Takase: They're right next door. Williams: Yes, they're the convenience store next door. Taniguchi: Okay, I just wanted to double-check. And has this person ever had a violation before? Seems like she's pretty responsible if she put, because I was going to mention in bars, usually they have that date, right? Williams: Yeah, she's very responsible about that. Taniguchi: So if you match that vertical (license) with the date, you're going to know. Williams: Correct. Exactly. Which is exactly what she should've done. But no, she's never had a violation, at least working for me for five or six years; she's never had a problem and it's my knowledge she's never had a violation and prior to that, she worked at other establishments as well. Giffin: Thank you. Any other questions of the Licensee? Yes, Andi? Pawasarat: I don't know if it's quite a question for us, but her comment regarding being unable to provide receipts to, if I'm looking at the right case. I just wondering about the ability to provide receipts. I know on another one (case), there was also something about being able to show receipts. Williams: Our cash register is set up with a single roll. Some basically has a carbon copy that prints out, like a journal that keeps track of the stats. For credit cards, obviously receipt prints SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 16 out and we give them a record of that transaction. For cash transactions, if they want a receipt, we have a paper tab that we write for their orders. We can write down the total and calculate that. We can give them a copy if they request one. Pawasarat: Okay, so they get the bottom of the tab. Williams: I don't know why she didn't know that. I didn't know how serious that was; but that was something that was addressed with her, that if someone asks for a receipt who pay cash, you can write the tab out and hand them the top copy. Giffin: Any other questions of the Licensee? There were no other questions from the Board Members. Giffin: Ms. Schoen? Schoen: Madam Chair, the date of the license was July 20, 2004. There have been no prior sale to a minor violations, but there had been two other violations. In 2014, there was a Rule 3-8(B) violation. That's an hour of business violation. A $1,500 fine was issued with $750 suspended. The second violation was in 2017, for Rule 3(1)(S), which is for unlicensed liquor. That one had nine counts for a total of a $9,000 fine with $6,000 suspended. The Licensee paid the $3,000. The Department is recommending a $2,000 fine with $1,250 suspended for one year from the date of service of the Decision and Order on the condition that there is no similar sale to minor violations, and that the $750 be paid within thirty (30) days upon receipt of the Decision and Order, made payable to the Department of Liquor Control. So, similar to the first one. Mukai: I move to accept the recommendation of the Corporation... Masuda: Hold on; do you have any comment as to the amount of the fine? There was no comment from the Board Members or Licensee. Mukai: I move to accept the recommendation of the Corporation Counsel. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-007, for Count 2, be assessed a penalty in the amount of$2,000 with $1,250 suspended for one year from the date of service of the Decision and Order, on the condition that there is no similar violation relating to Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor, and that $750 is to be paid within thirty (30) days upon receipt of the Decision and Order; seconded by Mr. Smith. Giffin: It's been moved and seconded that the adjusted fine be accepted. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 17 Taniguchi: I have a question. Giffin: Art? Taniguchi: Renee, the second violation that you just read about the nine counts, what was that? Gonzalez: Unlicensed liquor? Taniguchi: Yes, what is that? Gonzalez: They were getting liquor from a source other than a wholesaler. As a Dispenser they're required to get their liquor from a Manufacturer or Wholesaler, and they were obtaining some liquor from another source, from a store, because it was apparently a brand of liquor that they didn't have on hand. Taniguchi: So, from retail? Gonzalez: Right. The law does not allow that. Taniguchi: So was there a time limit in which you couldn't have any other violations? Gonzalez: One year. Mukai: But for any similar violations. Taniguchi: So it's past the one year? Gonzalez: Yes. Giffin: Any other comments? Mr. Smith? Smith: Just to clarify, typically when there's a prior violation, and you have a fine and then you suspend a portion of the fine, the suspended portion would only kick-in if it's the same violation? Gonzalez: If it's worded as similar violations, yes. Although the Board can impose a condition of no further violations of any kind, which is more broad. But we typically don't do that. We tailor it to the Licensees. Smith: Okay, thank you. Giffin: It's been moved and seconded that in fact, the fine that Ms. Schoen has recommended be approved. All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those opposed, "Nay." SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 18 There was no opposition from the Board Members. Giffin: And I approve also, so it has been carried. The motion was carried unanimously. Giffin: A written Decision and Order will be prepared and served upon you, the Licensee, which shall be due and payable within thirty (30) days of its receipt. Thank you for coming. Williams: Thank you so much. Smith: Thank you. Schoen: Madam Chairman, we're calling Case No. 3, 2019-008, on the Matter of the Accusation Against Hilo Burger Joint LLP, dba Hilo Burger Joint, located at 776 Kilauea Avenue, Hilo, Hawaii. This is the informal hearing; Alternative II has been chosen. I'm Renee Schoen, Assistant Corporation Counsel on behalf of the Department. To my left is... 3. CASE NO. 2019-008 (2:20 P.M.) In the Matter of the Accusation Against Hilo Burger Joint LLP, dba Hilo Burger Joint, located at 776 Kilauea Avenue, Hilo, Hawaii. Informal Hearing (Alternative II) on violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor. Melissa Boteilho of Hilo Burger Joint, was present. Boteilho: ...Melissa Boteilho. Giffin: And you are from? Boteilho: Hilo Burger Joint. Schoen: Madam Chair, at this time I will read the complaint for the Board. On or about the 20th day of June 2019, in the County and State of Hawaii, the Licensee, Hilo Burger Joint LLP, dba Hilo Burger Joint, did sell, serve or furnish liquor to a minor(age 20), in violation of Section 281- 78(b)(1)(A) of the Hawaii Revised Statutes, as amended. As I see from here, the Licensee has chosen Alternative II, waiving their right to a hearing and appeal but requesting an informal hearing to present the circumstances surrounding the violation. We'll be asking the Board to find the Licensee in violation of the charge. Giffin: Board, as Ms. Schoen has just said, I would like to entertain a motion to find the Licensee in violation of the charge. Mukai: So move. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 19 Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-008, be found in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor; seconded by Mr. Smith. Giffin: It has been moved and seconded that, in fact, the Licensee has been in violation of the charge. All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those opposed, "Nay." There was no opposition by the Board Members. Giffin: The Chair also votes in approval. The motion is carried. The motion was carried unanimously. Giffin: Prior to assessing a penalty, you may proceed with your presentation of the circumstances surrounding the violation. Boteilho: So, my name's Melissa and I work at the Hilo Burger Joint. That evening, Erika Boyd was the bartender on duty when this operation happened. I looked back on our cameras and I did see that she was busy in the moment the decoy sat next to one of our regulars. Not thinking, and I know it's no excuse, but it happens. She went over and asked him what he wanted. Apparently, our customer, jokingly, said `oh, that's my friend.' I know that's no excuse, but she thought she remembered serving somebody similar along with our customer that was there. Unfortunately, it wasn't. While I was looking on the camera, I saw the decoy leave and that's when the investigators came in and asked to see her license and her blue card, which was expired at the time. She looked surprised as to why they were there and they explained. I could hear vague verbal conversations through our camera system. That's why I saw and that's what she told me. She was surprised and when they asked her if she knew what was going on, she responded she didn't. They told her she served someone under age, and she was like, `where?' She misunderstood them, thinking that they said somebody brought in a bottle of liquor and said, "Where? Who is it?" But she misunderstood them. They were trying to tell her that she served an underage person. So, therefore, this is why we are here. Giffin: Any other questions of the Licensee? Mukai: I have a question in regards to this information (referring to the investigator's report), Ms. Chair. Giffin: Yes, Mr. Mukai? Mukai: Under the job title of Erika Boyd, it says expiration date "12/2017." What does that expiration date refer to? SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 20 r- rte. Takase: Probably her card. Boteilho: Her blue card expired. Mukai: So it had expired when she... Boteilho: ...It had already expired, but you only need one blue card on premises at all times during hours of operation. Mukai: Was there another blue card holder on the premises when she... Boteilho: ...There was, Sean Stone, yes. Mukai: Okay, thank you. Giffin: Any other questions of the Licensee? There were no other questions from the Board Members. Giffin: Hearing none, do we go on to the recommendation? Masuda: Yes. Giffin: Renee? Schoen: Madam Chair, the license was issued in 2011. There has been no previous violations. There was a 2018 letter of reprimand for failing to pay a percentage fee on time, but no previous similar violations. We are recommending a $2,000 fine with $1,000 suspended for one year from the date of service of the Decision and Order, on the condition that there be no similar violations of Sale to a Minor, and that $1,000 be paid within thirty (30) days upon receipt of the Decision and Order; and that made payable to the Department of Liquor Control. Giffin: Thank you. Do you have any more comments that you'd like to make regarding the penalty? Boteilho: No, thank you. Mukai: I move to accept the recommendation of Corporation Counsel. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-008, be assessed a penalty in the amount of$2,000 with $1,000 suspended for one year from the date of service of the Decision and Order, on the condition that there is no similar violation relating to Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 21 as amended, Sale to a Minor, and that$1,000 is to be paid within thirty (30) days upon receipt of the Decision and Order; seconded by Mr. Smith. Giffin: It's been moved and seconded that the penalty that has been recommended by the Corporation Counsel be accepted. All those in favor please say, "Aye." The Board Members voted "Aye." Mukai: Wait, we need to have discussion first. Giffin: I'm sorry. You wanted to say something? Mukai: No just that you have to have discussion first. Giffin: Okay, is there any discussion? Smith: I do. Giffin: Mr. Smith? Smith: I think, as Mr. Gonzalez has expressed before, we have very similar cases today. We need to make sure that what we decide on is consistent amongst the different cases where circumstances are aligned and fines are consistent with the violations. I'm in agreement with what you are doing, and I think that one of the factors here for waiving the thousand instead of the twelve fifty that we did on the others, is that your bartendress did not even ask for an ID. I think that's a difference and I think it needs to be stressed how important it is because Hilo Burger Joint has been in this room numerous times in the past and I know it's not pleasant to be here. I think you just need to stress to your employees to follow the rules and everything is fine. I concur; I just wanted to put the reason why it could or should be different on the record. Thank you. Giffin: Any other comments or questions for this discussion? There were no other comments or questions from the Board Members. Giffin: Hearing none, I would like to ask for a vote regarding the motion that was on the floor, and that is that the penalty be approved as presented. All those in favor? The Board Members voted "Aye." Giffin: All those opposed? There was no opposition by the Board Members. Giffin: And the Chair votes to approve. The motion is carried. The motion was carried unanimously. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 22 Giffin: A written Decision and Order will be prepared and served upon you, the Licensee, which shall be due and payable within thirty (30) days of its receipt. Thank you for coming. Giffin: Ms. Schoen? Schoen: No. 4, Case No. 2019-009, In the Matter of the Accusation Against Banyan Mini Mart, LLC, dba Banyan Mini Mart, located at 71 Banyan Drive, Cabana #3, Hilo, Hawaii. This is an adjudication and waiver of presence, so Alternative I. 4. CASE NO. 2019-009 (2:28 P.M.) In the Matter of the Accusation Against Banyan Mini Mart, LLC, dba Banyan Mini Mart, located at 71 Banyan Drive, Cabana #3, Hilo, Hawaii. COUNT 1 Informal hearing (Alternative I) on violation of HRS 281-78(b)(1)(A), of the Hawaii Revised Statutes, as amended, Sale to a Minor. COUNT 2 Informal hearing (Alternative I) on violation of Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii, for failure to have a Person in Active Charge of the premises at all times while the premises was open for business to provide proper supervision in the exercise of the liquor license in accordance with the liquor laws. Gonzalez: The only thing about Alternative I is they've informed us that they're not going to be here, and you can take action without the Licensee's physical presence. Schoen: So we'll go ahead. Count 1 states that on or about the 20th day of June 2019, in the County and State of Hawaii, the Licensee, Banyan Mini Mart, LLC, dba Banyan Mini Mart, did sell, serve or furnish liquor to a minor(age 20), in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended. Schoen: Count 2 states that on or about the 20th day of June, 2019, in the County and State of Hawaii, the Licensee, Banyan Mini Mart, LLC, dba Banyan Mini Mart, did fail to have a person duly approved by the Department of Liquor Control as a person in active charge of the premises at all times while the premises was open for business to provide proper supervision in the exercise of the liquor license in accordance with the liquor laws, in violation of Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii. Schoen: As stated earlier, Alternative I was chosen. The Licensee is waiving their right to a hearing and appeal on Counts 1 and 2, stipulates that disciplinary action may be taken without their presence, and so we ask the Board to find the Licensee in violation of both charges. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 23 Giffin: Thank you. Members of the Board, I would like to have a motion to find the Licensee in violation of the charges in Counts 1 and 2. Mukai: So move. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-009, be found in violation of Section 281-78(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor, and Rule 5-2 of the Rules and Regulations of the Liquor Commission of the Department of Liquor Control of the County of Hawaii, State of Hawaii, Person in Active Charge, as stated in Counts 1 and 2, respectively; seconded by Mr. Smith. Giffin: It's been moved and seconded that the Licensee is, in fact, in violation of the charges in Counts 1 and 2. May I please have a discussion? There was no discussion from the Board Members. Giffin: Hearing none, are we ready for a vote? Mukai: No, we need recommendation of the... Smith: ...first we have to find in violation... Taniguchi: ...we have to vote first. Mukai: Right, I'm sorry. Giffin: All those in favor of the motion say, "Aye." The Board Members vote "Aye." Giffin: All those who oppose, "Nay." There was no opposition from the Board Members. Giffin: The Chair votes "Aye." The motion is carried. The motion was carried unanimously. Schoen: This happened on June 20th, about 6:50 at night. The decoy entered the premise and bought a 22-ounce bottle of Heineken. The cashier did not ask for an ID, I guess because the decoy looked older than 21. Basically, that's what happened. The store owner wasn't there; he was later called and came to the store and was notified there was a sale to a minor and no person in active charge. He said he knew the cashier didn't have a liquor card yet. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 24 Schoen: So based upon there being no previous violations, the license was issued in 2015, and the Licensee did, even though they're not here, they did take responsibility for the violations. We are recommending as to Count 1, a $2,000 fine with $1,000 suspended for one year from the date of the service of the Decision and Order, on condition that there be no similar sale to minor violations, and that $1,000 be paid within thirty (30) days upon receipt of the Decision and Order, made payable to the Department of Liquor Control. Schoen: For Count 2, $1,000 fine with $500 suspended for one year from the date of service of the Decision and Order, on the condition that there be no similar Rule 5-2 violations, being person in active charge; and that $500 be paid within thirty (30) days upon receipt of the Decision and Order. Giffin: Board, are there any questions that you would like to ask Ms. Schoen regarding Count 1 and/or Count 2? Taniguchi: I have a question on Count 2. Giffin: All right. Taniguchi: In reading this, I think he was the only one that was authorized. Is that what it was? Gonzalez: She was scheduled to take the liquor card class that week. Taniguchi: How much does it cost? Is it cheap? Gonzalez: It's two dollars for the liquor card. Taniguchi: All right. Gonzalez: But she said she was sick. She missed out. The Director was teaching the class that week. Takase: Which doesn't seem to matter. Giffin: Any other comments? Pawasarat: Yes. Giffin: Andi? Pawasarat: When he came in at 7:09, was it because somebody called him or was it because he was, that was his scheduled time? Gonzalez: In answer to your question, yes, he was called in because there was no person with a card. The investigator that was speaking with her, had her call him. Pawasarat: So, was it, may be that she was going to be working the whole night and closing on her own? SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 25 Gonzalez: It appears that way, because the owner made the statement that he knew she didn't have her card and she was working there by 2:00. But, this is... Pawasarat: ...Do we know how long she's been working? Gonzalez: How long? No we don't know how long she was employed there totally. But, this is something that smaller proprietors run into quite often. If they're the owner of the business and they don't have a lot of staff, they to try to get staff; they have to weigh being able to open and stuff, so that's why it's important to note it in the report in that part. He made the choice to have her working for whatever reason. But he knew that she didn't have a card. But it's a challenge for the smaller businesses. Actually, it's a challenge for most retailers. Pawasarat: Business is challenging for everybody. Gonzalez: Yes, so that's been considered as well. But I will say, of the thirty times we've had this violation in the last five years, typically we impose the thousand and we suspend the range from $750 to $500, depending on the circumstances. Pawasarat: I think my concern would be a lot of times when we have people come up, there's some sort of extenuating circumstances; somebody has called in sick or someone just didn't show up or people just didn't realize somebody's card expired. Here, he's blatantly said 'Ya, I know.' Schoen: Actually, the record indicates that was her third day working there. He was working with her the first two days and this was the first day she was on her own. Pawasarat: Right, but he was completely aware she had no card. He himself, being a card holder, knows you can't run the place without somebody, so it's not like there were two people scheduled and one bombed out and the other one didn't have. He scheduled for that to happen, and that's where I'm conflicted with dropping the $500 just because it was blatant. Taniguchi: That's a good point. Giffin: Any other comments or questions? Mr. Smith? Smith: Yes, just a couple of comments. The cashier didn't check the ID, right? The report states... Pawasarat: How would she know? She never took the class. Gonzalez: ...did not check the ID again, yes. Smith: So that's different from the other cases, right? Was this person the only employee in the store? Gonzalez: At the time, yes. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 26 Smith: So, when the owner scheduled this person, he knew that she didn't have a card; he knew that there was no one else in the store that might have a card; so, he opened his business without having the proper credentials to conduct business in the store. Taniguchi: Liquor business. Smith: Liquor business. Schoen: Yes, and she called him. Smith: I guess I'm in agreement with Andi. I think there should be consequences when somebody calls in sick or circumstances are beyond your control, that's one thing. But, as Gerald has mentioned a couple of times, you can't even count, there should be consequences to that. But this one, you blatantly knew the person didn't have what you needed to open and you left your three-day old employee in charge without the proper certifications. I'm in consistence with not waiving the $500 on Count 2. Giffin: Mr. Masuda? Masuda: First of all, is there any more discussion from the Board? Pawasarat: Yes, actually I would like to make a comment only because I was just thinking about the cashier that was working there. Thank goodness that this wasn't a violation with the police. Because this person would have had felony charges on her record; not knowing anything, wanting and needing a job. Of course they didn't ask for a license; they haven't been through an education class yet, they didn't even know they do that. But he could have very much got someone a felony charge on their record, who didn't have any education at all about what was going on. That's scary. Masuda: You mean criminal? Pawasarat: I mean criminal. Isn't it a felony charge? Masuda: No. Pawasarat: Oh, a criminal charge. Thank goodness, but I mean, that's on your record. Masuda: Yes. Takase: Yes, and that's one of the reasons we quit using the police because it's usually a young person, and in most cases it's not intentional. They made a mistake and to straddle them with that for the rest of their lives, it's unfair. They made a mistake, the Licensee will pay for it in guilt. It's a little too punitive seeing them go through that whole process and then really suffer because they get a record and they get charged $500 by the court. We've gotten away from using the police to assist us and issuing a separate citation to the actual person that sold. Taniguchi: I have a question for Brandon. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 27 Giffin: Yes? Taniguchi: What would the proper procedure have been for this Licensee? In this situation where you didn't have a schedule and just by phone says `you're going to work today.' You know you don't have somebody there that's supposed to have the card, what's do we tell them they're supposed to do? Gonzalez: One possibility is they are a convenience store that sells other goods besides liquor. They could have notified the Department that they don't have a person in active charge and ask if they could still remain open if they cancel liquor sales. We've extended that courtesy to restaurants where their service is primarily driven by a percentage of food sales; but as a convenience store ... Takase: Usually we advise them to put up a sign saying that they have no manager on duty, therefore, they can conduct no liquor sales. If the investigator goes in and sees that, then he won't cite them for this violation. We recognize that times are hard now and sometimes they can't get anybody else (to work). The old procedure would be to shut down, but we thought that's a little harsh. We feel if you say up front that you can't sell liquor, we'll let them go versus saying `oh yeah, we weren't going sell liquor.' Taniguchi: So that's reasonable, right? Had he done that, everything would've been okay. Takase: It would've been okay. Taniguchi: But, he said that he knew, but he took his chances and let this person sell liquor. Takase: Yes, he knew. He could have put up a sign and we would have accepted that as reasonable. Taniguchi: That way, they could sell their other goods, other than liquor. Giffin: Non-alcohol. Takase: They're on Banyan Drive... Taniguchi: ...right next to Hilo Hawaiian. Takase: It's recognized that there are tourists that might want a convenience store there, so rather than trying to close him up altogether... Giffin: Dwayne? Mukai: I go along with my fellow Board Members that he seemed really callous about the fact that he knew that he had no card holder and he was going to let her work the whole shift without being a card holder. In light of that, I'd like to make the motion that we accept that in regards to... SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 28 Masuda: ...Mr. Mukai, may I interrupt? Mukai: Yes? Masuda: When you make your motion, can you make it per counts, like Count 1 and Count 2? Mukai: Okay, having said that, I'd like to make the motion to accept the Corporation Counsel's recommendation in regards to Count 1. Masuda: Okay, and what about Count 2? Mukai: I'm going to take each one at a time. Masuda: Yes, you can take each one at a time. Mukai: It's cleaner that way. Giffin: Before we do that, your motion deserves a second before we continue to go further. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-009, for Count 1, be assessed a penalty in the amount of$2,000 with $1,000 suspended for one year from the date of service of the Decision and Order, on the condition that there is no similar violation relating to Section 281(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor, and that $1,000 is to be paid within thirty (30) days upon receipt of the Decision and Order; seconded by Mr. Smith. Giffin: It's been moved and seconded that the penalty for Count 1 be accepted. All those in favor say, "Aye." The Board Members voted "Aye." Giffin: All those opposed, "Nay." There was no opposition by the Board Members. Giffin: The Chair votes to accept, and so it is approved. The motion was carried unanimously. Giffin: Let's go on to Count 2. Mukai: Madam Chair, I make the motion that in regards to Count 2, that we fine the Licensee $1,000 with no suspension based on the information given. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 29 Smith: Second. Mr. Mukai moved that the Licensee in in Case No..2019-009, for Count 2, be assessed a penalty in the amount of$1,000, based on the information given; seconded by Mr. Smith. Giffin: It's been moved and seconded that the penalty for Count 2 be $1,000. Discussion? Schoen: May I add that it be payable within thirty (30) days? Giffin: Yes. . Mukai: So amended. Mr. Mukai amended his motion: Mr. Mukai moved the Licensee in in Case No. 2019-009, for Count 2, be assessed a penalty in the amount of$1,000, based on the information given, to be paid within thirty (30) days upon receipt of the Decision and Order; seconded by Mr. Smith. Smith: I just want to comment on the alternatives to the establishment to put up a sign that there's no active person so liquor will not be sold. At a previous meeting, Longs in Waimea had a similar situation where the staff member with the card didn't show up for work and we gave them the same alternative. I think that's consistent with what we told everybody. It allows them to stay in business especially if they have other products that are non-alcoholic. Mukai: I have a question. Giffin: Sure. Mukai: In regards to the Licensee, would the fact that not having a card holder and that he simply does not sell liquor during that time where there's not a licensed card holder, is that something he would actually understand, or comprehend? Gonzalez: Yes, because we do cover it specifically in the liquor card class. Mukai: All right, thank you. Giffin: Any other comments or questions regarding this motion pertaining to Count 2? There were no other comments or questions from the Board Members. Giffin: Since our discussion has been completed, all those in favor of the penalty for Count 2 being $1,000, please say, "Aye." The Board Members voted "Aye." SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 30 Giffin: All those who oppose? There was no opposition by the Board Members. Giffin: And the Chair votes "Aye." The motion is carried. The motion was carried unanimously. Giffin: A written Decision and Order will be prepared and served upon the Licensee which shall be due and payable within thirty (30) days of its receipt. Giffin: Ms. Schoen? Schoen: We're calling our last case. Giffin: Yes. Schoen: 2019-010, in the Matter of the Accusation Against Oriental Garden, LLC, dba Club Rose, located at Waiakea Square Warehouse, 200 Kanoelehua Avenue, Space No. 106, Hilo, Hawaii. Renee Schoen, Assistant Corporation Counsel on behalf of the Department. The Licensee is not present here because they've chosen Alternative I. 5. CASE NO. 2019-010 (2:45 P.M.) In the Matter of the Accusation Against Oriental Garden, LLC, dba Club Rose, located at Waiakea Square Warehouse, 200 Kanoelehua Avenue, Space No. 106, Hilo, Hawaii. COUNT 1 Informal Hearing (Alternative I) on violation of HRS 281-78(b)(1)(A), of the Hawaii Revised Statutes, as amended, Sale to a Minor. COUNT 2 Informal Hearing (Alternative I) on violation of HRS 281-78(b)(1)(A), of the Hawaii Revised Statutes, as amended, Sale to a Minor. Schoen: There are two counts, but the Department is requesting to drop Count 2. Masuda: Okay, at this point, the prosecution has asked to dispel Count 2. The proper motion at this point will be for the Board to move to dismiss Count 2 should they choose to do so. Pawasarat: I motion to dismiss Count 2. Smith: Second. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 31 Ms. Pawasarat moved to dismiss Count 2, Case No. 2019-010, in violation of Section 281(b)(1)(A) of the Hawaii Revised Statutes, as amended, Sale to a Minor; seconded by Mr. Smith. Giffin: It's been moved and seconded that Count 2 of this agenda item be dismissed. Discussion? Mukai: Why? Could you explain the rationale behind dismissing that (Count)? Schoen: Actually, it's the same transaction. Mukai: Is it the same as the previous one? Takase: We sent in two decoys, but it was one transaction. To not take advantage of the situation, we will go with one (Count). Mukai: Okay. I'll go with that, thank you very much. Schoen: Madam Chair, at this time, we ask that you find the Licensee in violation... Masuda: Wait, at this time we'll need to vote if there's no further discussion. Giffin: All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those opposed? There was no opposition by the Board Members. Giffin: The Chair votes "Aye." Count 2 is dismissed. The motion was carried unanimously. Giffin: Moving right along. Masuda: Could you read Count 1 for the record, please? Gonzalez: Can we waive the reading of the charge since they selected Alternative I in this case and admitted the charge? Giffin: Yes. Schoen: Can we have the Board move to find the Licensee in violation of Count 1? Giffin: Sorry? SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 32 Masuda: Violation of Count 1. Schoen: Just Count 1. Mukai: So move. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-010, be found in violation of HRS 281-78(b)(1)(A), of the Hawai`i Revised Statutes, as amended, Sale to a Minor, as stated in Count 1; seconded by Mr. Smith. Giffin: Discussion? Mukai: Call for the question. Giffin: All those in favor? The Board Members voted "Aye." Giffin: All those opposed? There was no opposition by the Board Members. Giffin: The Chair votes "Aye." The motion was carried unanimously. Schoen: Madam Chair, the license was issued in 2009. There have been no previous Sale to a Minor violation, but there was a violation in 2018, for failure to register a hostess; and also for failure to maintain a schedule of employees, actually that one was subsequently dismissed. There was a violation in 2014, consuming liquor while on duty, for two counts. The Department is recommending, as to Count 1, a $2,000 fine with $1,000 suspended for one year from the date of service of the Decision and Order on the condition that there be no similar Sale to Minor violations, and that $1,000 be paid within thirty (30) days of the Decision and Order, made payable to the Department of Liquor Control. That's in recognition of the Licensee taking responsibility. Giffin: Does the Board have any questions of Corporation Counsel regarding the penalty? Taniguchi: I have one question. Giffin: Sure. Taniguchi: If they don't pay within thirty days, what happens? Takase: They will be brought back for, but usually we'll... SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 33 Taniguchi: ...So the $2,000 doesn't kick in, or the $1,000? Takase: No. Taniguchi: The original amount doesn't kick in? Takase: No, because we're saying 'upon further violation.' Taniguchi: That's not a violation? Smith: It's a separate violation, if they didn't pay. Taniguchi: It's a separate violation? Takase: It's a similar violation. Taniguchi: So they would have to come back again for the same thing? Takase: Yes. Usually, we would speak with them and they'll come in. If they don't, we will issue a new violation for failure to pay. Smith: It's like contempt of court. Takase: The violation in that case would be failure to follow the order of the Board. Taniguchi: So what happens to the $2,000? Giffin: $1,000. Takase: It'll still be $1,000, but they'll probably get another $1,000 violation if they didn't follow it. Taniguchi: Okay. Has that happened before? Schoen: Yes... Takase: ...Sometimes, but not too often. Schoen: ...Within the last six months. Takase: I'm thinking only the... Gonzalez: ...Tropics. Takase: Paniolo. Smith: Al Vicolo, Paniolo Country Inn. Gonzalez: You're right. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 34 Giffin: Any other questions regarding the penalty for violation one? Smith: Yes. Giffin: Mr. Smith? Smith: Renee, you commented that they had a prior violation of consumption on duty or something like that. Is this the business that was lining up shots on the bar and they said it was soft drinks... Takase: No, that was Peggy's. Smith: Okay, thank you. They either admitted to drinking on duty or adulterating the bottles, right? Takase: Yes. Smith: Or putting Coca Cola in the bottles. I just wanted to know if it was the same business. Thank you. Takase: Yes, we had them in a catch 22. Masuda: But Commissioners, it has nothing to do with this case. Smith: But, if it was the same business, I think it's pertinent to what we fine them now. Masuda: Yes, but for the others who weren't there... Smith: Yes, thank you. Takase: That wasn't the same business. Giffin: Any more comments or discussions? There were no further comments or discussions from the Board Members. Mukai: I move that we accept the recommendation of the Corporation Counsel. Smith: Second. Mr. Mukai moved that the Licensee in Case No. 2019-010, for Count 1, be assessed the penalty of a $2,000 fine with $1,000 suspended for one year from the date of service of the Decision and Order on the condition that there be no similar violation relating to Section 281(b)(1)(A) as amended, Sale to a Minor, and that$1,000 be paid within thirty (30) days of the Decision and Order, made payable to the Department of Liquor Control; seconded by Mr. Smith. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 35 Giffin: It's been moved and seconded that we approve the penalty for Count 1. All those in favor? Mukai: Oh, discussion again. Taniguchi: Although we already had a lot of discussion. Giffin: We've already had our discussion. All those in favor please say, "Aye." The Board Members voted "Aye." Giffin: All those who oppose? There was no opposition by the Board Members. Giffin: The Chair votes "Aye." The motion carries. The motion was carried unanimously. Giffin: A written Decision and Order will be prepared and served upon the Licensee which shall be due and payable within thirty (30) days of its receipt. IV. Unfinished Business (2:54 P.M.) Masuda: There's no unfinished business, Madam Chairman. Giffin: We have new business? Masuda: Yes. V. New Business (2:54 P.M.) Giffin: Is there any new business regarding a report detailing destruction of evidence that is no longer needed by the Department? Masuda: There is. Mr. Director, do you want to speak to that? Gonzalez: There is. Takase: To the Board Members, this is a, I believe this is the first time we're doing it, but we had some left over alcohol (as evidence). We are asking to destroy it. At this time, Mr. Gonzalez presented items that were kept as evidence to the Board Members. Takase: It's merely a formality. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 36 Gonzalez: (Described some of the contents of bottles). One is ginger and one is jalapenos. The cases are concluded. Masuda: (Referring to the report) That's the chain of custody log? Takase: Yes. Masuda: Okay, because it's on a chain of custody log, the appropriate motion would be to allow the Director to destroy all the requested five items. Five, right? Four items? Giffin: Seven. There was a short discussion over the number of items to be destroyed. Takase: Just say all the items listed on this? Masuda: Yes, all items listed on the sheet. Gonzalez: Yes, that's the report right there. Giffin: Do I hear a motion? Mukai: So move. I move that we allow the Department of Liquor Control to destroy all the evidence that was presented to us. Taniguchi: Second. Mr. Mukai moved to allow the Director of the Department of Liquor Control to destroy the evidence presented to the Board Members; seconded by Mr. Taniguchi. Giffin: It's been moved and seconded that we agree to have the evidence that has been presented to us destroyed by the Department. All those in favor? The Board Members voted "Aye." Giffin: And there was no discussion. There was no opposition by the Board Members. The motion was carried unanimously. VI. Announcements Giffin: The next item of business is Announcements. They pertain to the next two meetings of this Board. The first one is on October 17, 2019, at 10:00 A.M. SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 37 Takase: We're going to cancel that one, but we will have the November meeting. Giffin: As the Director has said, the November 21, 2019, still stands. There's nothing else but a motion to please adjourn. VII. Adjournment Giffin: Do I hear a motion? Smith: So move. Mukai: Second. Mr. Smith moved to adjourn; seconded by Mr. Mukai. Giffin: It's been moved and seconded that we adjourn this meeting. Any discussion? There was no discussion from the Board Members. Giffin: This meeting is adjourned. The meeting adjourned at 3:52 P.M. Itr LD TAKASE Director SEPTEMBER 5, 2019-LIQUOR ADJUDICATION BOARD MINUTES 38