BOARD OF LICENSE COMMISSIONERS. FOR MONTGOMERY COUNTY Ziaeddin Larijani Licensee RESOLUTION 10-04 Proceedings On January 7, 2010, the Board of License Commissioners for Montgomery County (the Board) held a hearing to show cause why the Beer, Wine, and Liquor license, Class B, Hotel/Restaurant, On Sale Only, issued to Ziaeddin Larijani for the premises known as Felicita Restaurant, located at 608 Quince Orchard Road, Gaithersburg, Maryland, should not be suspended or revoked, or why other sanctions permitted by law, including but not limited to fines and penalties, should not be imposed for alleged violations of the Rules and Regulations of the Board of License Commissioners, as stated in a letter dated December 15, 2009. In the letter dated December 15, 2009, it was alleged that on September 10, 2009, alcoholic beverages were stored on the licensed premises that were not purchased from the Montgomery County Department of Liquor Control (DLC), in violation of Chapter 6, Prohibited Practices, Section 6.9, Storage, of the Board's Rules and Regulations. In the letter dated December 15, 2009, it was further alleged that on September 10, 2009, an alcoholic beverage bottle was found on the licensed premises that had been refilled or tampered with, in violation of Chapter 6, Prohibited Practices, Section 6.8, Alcoholic Beverage Containers - Refilling/Tampering, ‘At the outset of the proceeding, the licensee admitted, with explanation, that on September 10, 2009, there were certain alcoholic beverages on the licensed premises that were not purchased from the Montgomery County Department of Liquor Control (DLC), and, on September 10, 2009, there was a bottle of alcoholic beverage that had been refilled. ‘The Board then held a disposition hearing to review the applicable facts and determine the appropriate sanction. During the course of the hearing, the Board received testimony and documentary evidence from witnesses including the licensure file and inspection reports.Evidence Presented ‘The Board received the following evidence: Lee Williams, Alcohol/Tobacco Enforcement Specialist: Inspector Williams testified that on September 10, 2009, he and Inspector Carlos Grajeda conducted a routine monthly inspection at Felicita Restaurant. Inspector Williams stated that during that inspection they found a bottle of Crown Royal Canadian Whiskey with the liquid inside above the factory-sealed distribution level. The licensee, Mr. Larijani, was on the premises at the time of the inspection and this bottle was shown to him. Inspector Williams stated that there was another bottle of Crown Royal nearby that was almost empty. The licensee acknowledged to the inspectors at the time that someone had refilled the bottle of Crown Royal. Inspector Wiliams further stated that the Crown Royal whiskey was originally purchased from the Montgomery County Department of Liquor Control. Inspector Williams presented nine bottles of alcoholic beverages plus one 12-ounce can of Schlitz Red Bull malt liquor to the Board and stated that they were found in a storage area at the facility. He stated that some of these bottles have Maryland tax stamps but that the State of Maryland stopped using tax stamps in 1991. Inspector Williams stated that this restaurant opened in 2009. He further stated that there were no receipts on the premises of the restaurant for any of these bottles. Inspector Williams provided the following information about the confiscated alcohol on display at the hearing: * one bottle of Beefeater Dry Gin with a bottle label that has not been used in at least five years and the current importer of this product is not the importer named on the back of the bottle; + one bottle of Arrow Peach-Flavored brandy with the Maryland tax stamp on it; + two bottles of Disaronno Amaretto which show signs of excessive wear although the bottles are brand new — no receipt provided; * one bottle of Bushmills Irish Whiskey — no receipt provided; * one bottle of Verdicchio dei Castelli di Jesi white wine — licensee thought this was a gift, no receipt provided; + one bottle of Chambord Liqueur Royale — no receipt provided; ‘© one bottle of DeKuyper Sloe Gin ~ no receipt provided;+ one bottle of Martini & Rossi Vermouth — no receipt provided; ‘* one can of Schlitz Red Bull XL Malt Liquor — licensee thought the cook had purchased somewhere for cooking, no receipt provided Inspector Williams further testified that the licensee, Mr. Larijani, told him that he thought a bartender brought some of this alcohol into the facility to cover ‘some products the bartender had taken from the facility. Inspector Williams stated that this facility is on monthly inspections because Mr. Larijanl Is a new licensee; on prior inspections he had warned the licensee and his managers that they could not refill bottles. On August 5, 2009, Inspector Williams found what he thought was a bottle of Smirnoff that was brand-new and unopened but the receipt was three months old; he was suspicious of this bottle because Smimoff is a fast-moving product. Because of this Inspector Williams wrote, on the routine inspection report for that date, all alcohol must be purchased from Montgomery County Department of Liquor Control (DLC). Inspector Williams stated that these violations occurred six or seven months after the license was issued. Ziaeddin Larijani, licensee: Mr. Larijani testified that he admits to the violation but has found some receipts. He stated that the Amaretto bottle is wiped down by the bartender and that it was purchased in March 2009 before he opened the restaurant. He stated the Amaretto was purchased from Montgomery County DLC but the invoice was Not in the folder with the other invoices when the inspector checked them because It was an older purchase. He stated that he also had a receipt for the Chambord Liqueur; he said that hardly anyone orders this liquor and he did not know how the Maryland tax stamp got on it. He further stated that he could not find recelpts for the other bottles. Mr. Larijani stated that, since this incident on September 10, 2009, he or his general manager have purchased the alcohol for the restaurant themselves. He stated they mark the bottle with a marker and mark the invoices as well when they purchase the alcohol. Mr. Larijani further stated that one time he purchased a bottle of Bacardi sealer and found it was not on the invoice; he marked that bottle "DO NOT USE”. He stated that another time he found another bottle purchased but not on the invoice. This bottle was purchased at the County store at Quince Orchard and the store missed it and did not charge him for the bottle. He stated that he has put both of these bottles in storage. Mr. Larijani stated that the County makes mistakes, too. He stated that he knows he bought the Bushmills whiskey from the County but the County may have failed to ring it up.Mr. Larijani further testified that his cook marinates steaks in Red Bull malt liquor and that Inspector Grajeda had told him the County does not sell Red Bull. Mr. Larijani showed the Board a fyer from DLC dated November 2009 that shows they sell Red Bull. In response to questions from the Board, Mr. Larijani stated that he does not know how the following bottles got into his restaurant: Peach Flavored- Brandy, Sloe Gin, and Verdecchio white wine. He further stated that he has been in Montgomery County for 25 years and has had other restaurants during that time. He stated that he would not take a chance on his license by buying alcohol somewhere other than through Montgomery County. He testified that he inventoried the alcoho! at the restaurant and found that his liquor costs were very high; he confronted the bartender and terminated him in the last week of ‘August 2009. He terminated the manager also. Mr. Larijani indicated that he has a new manager and new bartender and that they are both TIPS certified. He stated he assumed the former bartender brought the bottles into the restaurant to cover what he was stealing from the restaurant. The former bartender admitted to Mr. Larijani that he brought this alcohol into the restaurant and he told Mr. Larijani that he reported the presence of unauthorized alcohol in Spanish to the DLC in August 2009. Mr. Larijani admitted that some of these bottles are old. He stated he sells Bushmills whiskey but did not know whether the bottle presented was the ‘specific bottle he bought from DLC because he does not have a receipt. Mr. Larijani also stated that he also purchased the Chamboard Liqueur from DLC; he demonstrated a pack of receipts purportedly including one for the Chamboard Liqueur. Mr. Larijani further stated that he got his license back in March 2009 but could not open the restaurant until May. He stated that he did not personally buy the Red Bull; the cook bought a 12-pack of Red Bull and Mr. Larijani denied knowing where the cook purchased It. In regards to the refilltampering charge, Mr. Larijani stated that Crown Royal whiskey comes in a blue box and he put it on the shelf. The manager and the bartender swore they did not refill it, Mr. Larijani stated his belief that this is out of his control. He indicated that the reason he had a 1.75 liter bottle in the restaurant was because there was a large party at the facility and he did not want to run out. He had run out of Crown Royal at a previous party so he decided to buy big bottles for this party. He stated this bottle was on the shelf and he could not swear that it was not refilled or that it was refilled. Mr. Larijani further stated that they open any bottle they put on the shelf. He said he did not have a receipt for the two bottles of Crown Royal whiskey.The licensee showed several receipts dated 3/25/09 to the Board; the receipts were not taken into evidence as the licensee needed to have them back to keep in the restaurant. Lee Williams, Alcohol/Tobacco Enforcement Specialist: In response to the licensee's testimony and Board questions, Inspector Williams stated that the County does sell Red Bull but that the store next door to Felicita Restaurant does not sell it. He pointed out that the date-coding on the can of Red Bull taken from the restaurant on September 10, 2009, was five years old. Inspector Williams confirmed the licensee's statement that this alcohol was not in the restaurant prior to August 2009. In regards to the licensee's statements about the Chamboard Liqueur, Inspector Williams pointed out that the bottle of Chamboard has remnants of an old Maryland tax stamp on it. He stated that there was another bottle of Chamboard Liqueur that he left at the facility because the licensee had a receipt for that bottle. In regards to the refill‘tampering charge, Inspector Williams stated that the seal was broken on the Crown Royal whiskey bottle. He demonstrated that the Crown Royal bottle had been opened and the fluid level is right at the cap. In response to further questions from the Board, Inspector Williams stated that the licensee keeps very good records and that he and Inspector Grajeda went through the records at the facility, The licensee did not have a receipt for the bottle of Amaretto that the Inspectors confiscated but did have a receipt for another bottle of Amaretto that the inspectors left at the restaurant. Inspector Williams stated he was not aware of any complaint regarding this facility received by the Board office and that these violations were the result of a routine inspection. Inspector Grajeda was with Inspector Williams on September 10, 2009, because Inspector Grajeda’s car was in the shop for repairs. On the basis of evidence presented, including the licensure file and the investigative reports, and having had an opportunity to view the witnesses, observe their demeanor, and judge their credibility, the Board finds as a matter of fact, that: 1. On September 10, 2009, the licensee had on the licensed premises one bottle of alcoholic beverages (Crown Royal) which had been tampered with and overfilled.2. On September 10, 2009, the licensee had on the licensed premises seven bottles of alcoholic beverages and one half-case of malt liquor that were not purchased through the Montgomery County Department of Liquor Control. 3. The licensure file for Felicita Restaurant shows that a Class B, Beer, Wine and Liquor, On Sale Only, license was issued to this licensee on March 20, 2009, after a hearing before the Board on December 4, 2008. 4. The licensure file for Felicita Restaurant shows no prior violations. Applicable Law The Rules and Regulations of the Board of License Commissioners provide in Chapter 6, Prohibited Practices, Section 6.8, Alcoholic Beverage Containers — Refill/Tampering: (a) A licensee, his or her agent(s) and/or employee(s) must not re-use or refill any bottle or other container of alcoholic beverages. (b) A licensee, his or her agent(s) and/or employee(s) must not tamper with the contents of any bottle or container of alcoholic beverages, by, for example, adulterating, diluting, fortitying or in any other way changing the contents of the container in any manner. The Rules and Regulations of the Board of License Commissioners further provide in Chapter 6, Prohibited Practices, Section 6.9, Storage: (a) _ License holders must not sell, store, or keep any alcoholic beverages on the licensed premises other than those purchased from the Montgomery County Department of Liquor Control. (6) It is unlawfil for any licensee to store or keep any alcoholic beverages on the licensed premises other than those permitted under the Uicensee’s license, (©) Alicensee may only store alcoholic beverages on the licensed premises, or at a public or government controlled warehouse for which a permit has been issued under the provisions of Article 2B of the Annotated Code of Maryland.Deci Nn of Law, and Disposition A. REFILL/TAMPERING CHARGE: ‘The licensee admitted violating the Rules and Regulations of the Board of License Commissioners, specifically Section 6.8, Alcoholic Beverage Containers — Refilling/Tampering, on September 10, 2009. Upon a motion by Mrs. Pefia-Faustino, and seconded by Mrs. Metz, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mrs. Pefia-Faustino, Mr. Um and Mr. Thirolf, the Board: 1. Determined that the public welfare and morals would not be impaired by allowing the licensee to operate and that payment of a fine will achieve the desired disciplinary purposes. 2. Assessed a Two Hundred Dollar fine ($200) for the September 10, 2009, refilling of an alcoholic beverage container violation; the fine shall be due and payable to Montgomery County, Maryland, on or before March 15, 2010. B. STORAGE CHARGE: Upon a motion by Mrs. Metz, and seconded by Mr. Um, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Thirolf, Mr. Um, and Mrs. Pefia-Faustino, the Board concludes that: The licensee violated Section 6.9 Storage of the Board’s Rules and Regulations on September 10, 2009, when the licensee stored seven bottles of alcoholic beverages and one-half case of malt liquor on the licensed premises that were not purchased from the Montgomery County Department of Liquor Control. The charge was not proven in the instance of one bottle of Disaronno Amaretto and one bottle of Chambord Liqueur Royale. Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, with Mr. Gilchrist, Mrs. Metz, Mr. Um and Mr. Thirolf, voting in the affirmative and Mrs. Pefia-Faustino voting in opposition, the Board: 1. Determined that the public welfare and morals would not be impaired by allowing the licensee to operate and that payment of a fine will achieve the desired disciplinary purposes.2. Assessed a One Thousand Five Hundred Dollar fine ($1,500) for the September 10, 2009, storage violation; the fine shall be due and payable to Montgomery County, Maryland, on or before March 15, 2010. Notice This decision of the Board may be appealed to the Circuit Court for Montgomery County, Maryland pursuant to the provisions of Article 2B, Section 16-101 of the Annotated Code of Maryland, and Title 7, Chapter 200 of the Maryland Rules of Procedure. Failure to pay fines by the due date(s) indicated may result in a cease alcoholic beverage sales order being issued by the Board. ATTEST: I, the undersigned, hereby certify that the Board adopted the foregoing Resolution on February 4, 2010. also certify that on February 9, 2010, a copy of the foregoing Resolution was sent by both certified mail, return receipt requested, to the licensee, and by regular first class mail, postage prepald, to the licensed premises. Aebes Gear Kathie Durbin Division Chief Division of Licensure, Regulation, and Education Department of Liquor Control For the Board of License Commissioners For Montgomery County, Maryland