BOARD OF LICENSE COMMISSIONERS FOR MONTGOMERY COUNTY Sergio Toni Valerie Toni Licensees RESOLUTION 10-12 Proceedings On January 21, 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, issued to Sergio Toni and Valerie Toni, for the premises known as Sergio Ristorante Italiano, located at 8727 Colesville Road, Silver Spring, 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 24, 2009. In the letter dated December 24, 2009, it was alleged that on November 5, 2009, a person under 21 years of age was sold, served, consumed, or had in his or her possession alcoholic beverages in violation of Section 6.1(a), Sales or Service to Minors/Consumption or Possession by Minors, of the Board’s Rules and Regulations. Licensee Valerie Toni was not present at the hearing ‘At the outset of the proceeding, licensee Sergio Toni admitted, with an explanation, that on November 5, 2009, one of their employees sold alcohol to a minor on the licensed premises. 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, Montgomery County Department of Liquor Control: Inspector Williams testified that on Thursday, November 5, 2009, a compliance check was conducted at Sergio Ristorante Italiano at approximately 8p.m, The undercover volunteer (UV 09-01) entered the facility, was seated at a table and ordered a glass of white zinfandel wine from the clerk, Jaime Pezo. Inspector Williams stated that Jaime Pezo did not ask for the identification of UV 09-01 and served the UV the wine. Inspector Williams introduced into evidence a copy of the UV's redacted driver's license (Exhibit A); it shows her birth date is 01-11-1992. Inspector Williams also introduced into evidence a picture of UV 09-01 which was taken at Sergio Ristorante Italiano on the evening of November 5, 2009, and shows the UV with the wine in her hand. Inspector Williams stated that Montgomery County Police Officer William Morrison witnessed the transaction that night. Undercover volunteer 09-01: UV 09-01 testified that she agreed with the previous testimony of Inspector Williams, She stated that on the night of November 5, 2009, at Sergio Ristorante Italiano, she ordered a glass of White Zinfandel wine, that she was served the wine by the waiter, and that no one asked her for her identification. Sergio Toni, licensee: Licensee Sergio Toni testified that his wife and co-licensee, Valerie Toni, was at the restaurant at the time of the hearing and therefore not present at the hearing. He stated that they have no excuse but he came to the hearing to say that this will not happen again. Mr. Toni stated that Sergio Ristorante Italiano is a family restaurant, not a bar or a nightclub. He described this violation as a “one-time mistake”. Mr. Toni stated that last time the restaurant was subject to a compliance check they did not serve the underage individual. Mr. Toni admitted into evidence a letter dated October 2, 2008, that he received from the Board of License Commissioners; the letter indicated that, on May 21, 2008, Sergio Ristorante Italiano was checked for compliance and an underage individual was refused alcoholic beverage service at that time. Licensee Sergio Toni further testified that the restaurant was very busy on the night of November 5, 2009. He stated he was in the kitchen for about 15 minutes when this incident took place. Mr. Toni further stated that the waiter was busy and seated the UV who ordered the wine. He stated that the same waiter had another customer who did not have identification; the waiter refused that service of alcohol and the customer asked to speak to the manager. Mr. Toni stated that, since this sale-to-minor violation, he has reminded all of his employees to check identification of patrons ordering alcohol. He stated that Sergio Ristorante Italiano has three employees; one is his son, and all have been with the restaurant for over 20 years. In response to questions from the Board, Mr. Toni stated that he has held the alcohol license for 29 years and this is their first violation. Mr. Toni was 2instructed by the Board to let his wife know that she should have been present at the hearing. Findings of Fact 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 November 5, 2009, the licensees’ employee, Jaime Pezo, served a glass of white zinfandel wine to UV 09-01, whose valid driver's license shows a birth date of 1/11/1992. 2. The licensure file for Taste of Jerusalem shows that there are no prior violations for these licensees. Appl The Rules and Regulations of the Board of License Commissioners provide: §6.1 - Sales or Service to Minors/ Consumption or Possession by Minors (2) Allcensee, his or her agent(s) and/or employee(s) must not sell or serve any alcoholic beverage to anyone under the age of 21. A licensee, his or her agent(s) and/or employee(s) must not permit anyone under the age of 21 to consume or possess any alcoholic beverage on the licensed premises. The licensee, his or her agent(s) and/or employee(s), must determine that the person to whom the sale or service is made, or who is consuming or possessing an alcoholic beverage, is at least twenty-one (21) years of age prior to the sale, service, possession, or consumption of any alcoholic beverage. The licensee shall be responsible for any violation of this section. Deci Inclusion of Law, and Disposition The licensees admitted violating the Rules and Regulations of the Board of License Commissioners, specifically Section 6.1(a), Sales to Minors, on November 5, 2009. Upon a motion by Mrs. Pefia-Faustino, and seconded by Mr. Um, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Thirolf, Mr. Um, and Mrs. Pefia-Faustino, the Board: 3. 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 dollar fine ($1000) fine for the November 5, 2009, sale to a minor violation; the fine shall be due and payable to Montgomery County, Maryland, on or before March 15, 2010. 3. Determined that both licensees and all staff in a supervisory capacity must take the Montgomery County Department of Liquor Control's ALERT training within 90 days of the date that this resolution is mailed to the licensee, such training to be completed by May 10, 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. I 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 prepaid, to the licensed premises. Ai dlie Orton Kathie‘Durbin Division Chief Division of Licensure, Regulation, and Education Department of Liquor Control For the Board of License Commissioners For Montgomery County, Maryland