BOARD OF LICENSE COMMISSIONERS FOR MONTGOMERY COUNTY Paul Collington Licensee RESOLUTION 10-24 Proceedinas On February 18, 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, On Sale Only, issued to Paul Collington, for the premises known as DISH Bistro, located at 809 Olney-Sandy Spring Road, Sandy 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 February 2, 2010. In the letter dated February 2, 2010, it was alleged that on November 13, 2009, there was no employee on the premises with a valid alcohol-awareness certificate, in violation of the Rules and Regulations of the Board of License Commissioners, Chapter 5, Standards of Operations, Section 5.4 Alcohol Awareness Certification, In the letter dated February 2, 2010, it was also alleged that on December 3, 2009, a person under 21 years of age was sold, served, consumed, or had in his/her possession alcoholic beverages in violation of the Rules and Regulations of the Board of License Commissioners, Chapter 6, Prohibited Practices, Section 6.1 (a) Sales or Service to Minors/Consumption or Possession by Minors. In the letter dated February 2, 2010, it was further alleged that on December 17, 2009, there were incomplete records available for inspection when requested of all alcohol purchases for the preceding two years in violation of the Rules and Regulations of the Board of License Commissioners, Chapter 5, Standards of Operations, Section 5.5(a) Records — Alcoholic Beverage Purchases. In the letter dated February 2, 2010, it was also alleged that on December 17, 2009, the licensee failed to comply with ratio accounting procedures for the period July 2009 through September 2009 in violation of the Rules and Regulations of the Board of License Commissioners, Chapter 5, Standards of Operations, Section 5.6 Ratio ‘Accounting Procedures. In the letter dated February 2, 2010, it was also alleged that on December 17, 2009, the licensee failed to file the required ratio report for October 2003, in violation of the Rules and Regulations of the Board of License Commissioners, Chapter 5, Standards of Operations, Section 5.6 Ratio Accounting Procedures.The licensee failed to appear at the show cause hearing. The Board's file for this license revealed that the letter dated February 2, 2010, was sent to the licensee's home and to the licensed premises and that the certified mail card signed by the licensee was received in the Board office on February 5, 2010, The Board found that the licensee had timely notice of the hearing. The Board did not receive any request for a continuance of the hearing from the licensee. As permitted by the Board’s Rules and Regulations, Section 4.3, Rules of Procedure, Rule 10, Failure to appear, the Board received evidence and decided the case as if all parties were present. During the course of the show cause hearing, the Board received testimony and documentary evidence from witnesses, as well as the licensure file, and police and inspection reports. Evidence Presented The Board received the following evidence: liams, Alcohol-T¢ alist: Inspector Williams introduced the case and indicated that he has had no contact, with the licensee. The violations will be taken up in the order that they occurred: (1) alcohol-awareness violation on November 13, 2009, (2) sale-to-minor violation on December 3, 2009, and (3) ratio and records violations on December 17, 2009. James Brady, Alcohol-Tobacco Enforcement Specialist: Inspector Brady testified that on November 13, 2009, at approximately 6:05 p.m., he arrived at DISH Bistro to conduct a monthly routine inspection. He stated that the licensee, Paul Collington, was not present at the restaurant at that time, but that Jason Olazo, an employee, was present. Mr. Brady requested to see the invoices and, after a phone call to the licensee, the invoices were located. Both Jason Olazo and Paul Collington told Mr. Brady that they thought they were alcohol-awareness certified but no alcohol-awareness certificate was produced for the inspector. Inspector Brady stated that he issued the alcohol-awareness violation and told Jason Olazo and the licensee that they should fax him a copy of Jason Olazo’s alcohol-awareness certificate. Inspector Brady stated that he later spoke with the licensee, Paul Collington, who told Mr. Brady that he did not realize Jason Olazo was not alcohol-awareness certified. Inspector Brady further testified that he also issued an order for the licensee to submit receipts regarding ratio requirements. He stated that he had observed very little food on the premises and had heard from others that not much food was being served at DISH Bistro. Mr. Brady stated that the intent for requesting the receipts regarding ratio requirements was to do an audit to check the ratios, Underage Volunteer (UV) 09-01: UV 09-01 testified that she went in to DISH Bistro on December 3, 2009, and asked to be seated. She stated that the manager named Paul was sitting at the pianoand he told her to come sit at the bar. She further stated that Paul came up and sat with her, introduced himself, and told her about a party at the restaurant on the following Wednesday; he encouraged her to bring her friends to the party. UV 09-01 stated that when she asked for a menu, Paul told her they didn’t have much food. UV 09-01 then ordered a glass of White Zinfandel, was told they didn't have any, and then ordered a glass of Chardonnay wine. UV 09-01 stated that there were dirty glasses at the bar. She stated that she watched the bartender pour the wine from the bottle into a glass before the bartender gave UV 09-01 the glass filled with the wine. Paul was trying to tell her about food available, UV 09-01 stated that she asked them what food was available and they both disappeared into the back. It was at this point that UV 09-01, called Inspector Grajeda. In response to questions from the Board, UV 09-01 stated that there was one table in the restaurant with other patrons. She further stated that the manager insisted she sit at the bar. It was 8:30 p.m. and the manager told UV 09-01 they didn’t have much food; he told her they were a new restaurant and said he had to go back to the. kitchen and ask what food was available. Carlos Grajeda, Alcohol-Tobacco Enforcement Specialist: Inspector Grajeda testified that he sent UV 09-01 into DISH Bistro on the night of December 3, 2010. He stated that he observed her enter the restaurant and continued to watch her through the large front window of the restaurant. Inspector Grajeda stated that he observed UV 09-01 have a conversation with Paul and he watched her order the alcohol and obtain it. He stated that, when the two men left to go to the back, he was already on his way in the door and he then took a picture of UV 09-01 with the alcohol. Inspector Grajeda entered the following into the record: 1. Redacted copy of UV 09-01's Maryland driver's license showing a birth date of 01/11/1992 (County Exhibit A) 2. Photo of UV 09-01 seated at a bar with a glass of wine in her hand taken at DISH Bistro on 12/03/09 (County Exhibit B) Inspector Grajeda further testified that the owner of the facility, Paul Collington, signed the Compliance Check report that night. Inspector Grajeda stated that Mr. Collington told the person who served the alcohol to UV 09-01 not to cooperate with the inspector and not to answer questions. The person who served the alcohol was identified as Kevin Wesley Harris after the police officer who was with Inspector Grajeda had to threaten to arrest him. Kevin Harris refused to sign the Compliance Check report after being advised not to do so by Paul Collington, Dan Adams, Al Inspector Adams testified that he was asked to do a review of DISH Bistro regarding their food-to-alcohol ratio. He stated that he started looking at the records of the licensee and had several meetings with the licensee in November 2009. Inspector ‘Adams stated that the records of alcohol purchases provided by DISH Bistro were notcomplete. He stated that he visited the Montgomery County Department of Liquor Control store on New Hampshire Avenue to see if they had additional receipts for alcohol purchases for DISH Bistro. Inspector Adams stated that, for the month of August 2009, the licensee produced five receipts; an additional eight receipts were uncovered at the County store. For the month of September 2009, the licensee produced five receipts; an additional six receipts were obtained from the County store. Inspector Adams stated that on December 17, 2009, he charged the licensee with failure to have records available for inspection. Inspector Adams further testified that the focus of his review was on the July, ‘August, and September 2009 ratios for DISH Bistro. He stated that Inspector Brady had reported that there was little food at the restaurant. The ratio reports submitted to the Board office by the licensee indicated over 50% food sales. After all records were tallied, Inspector Adams stated that July 2009 alcohol sales for DISH Bistro were 63%, the August 2009 alcohol sales were 64%, and the September 2009 alcohol sales were 66%, contrary to the ratio reports previously submitted by the licensee. Accordingly, Inspector Adams also charged the licensee with failure to maintain the prescribed ratios for those three months, Inspector Adams entered the following documents into the record: 1. Summary of 12 months of ratio reporting for DISH Bistro, November 2008 through October 2009 (Exhibit A) 2. July 2009 computer-generated sales printout provided by licensee (Exhibit B) 3. August 2009 computer-generated sales printout provided by licensee (Exhibit C) 4. September 2009 computer-generated sales printout provided by licensee (Exhibit D) July 2009 Food/Alcohol Ratio Report filed by licensee (Exhibit E) ‘August 2009 Food/Alcohol Ratio Report filed by licensee (Exhibit F) September 2009 Food/Alcohol Ratio Report filed by licensee (Exhibit G) Now Inspector Adams further testified that the licensee has not filed the Food/Alcohol Ratio Report for October 2009 despite having been asked for it several times, The licensee was therefore charged with failure to file the October 2009 ratio report. ron hi list: Inspector Moroney testified that he assisted Inspector Adams with the retrieval of receipts from the Montgomery County Department of Liquor Control store at Cloverly (New Hampshire Avenue). He stated that the licensee gave the inspectors a plastic baggie with receipts; many were household receipts that the inspectors had to sort through. Inspector Moroney stated that when he and Inspector Adams met with the manager of the Cloverly DLC store, they found twice the number of receipts for alcohol than the licensee had previously submitted to the inspectors.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 13, 2009, no one on the licensed premises was able to produce a valid alcohol-awareness certificate when requested by duly authorized representatives of the Board. On December 3, 2009, on the licensed premises, the licensee's employee, Kevin W. Harris, served a glass of wine to an Underage patron, Undercover Volunteer 09-01, whose identification showed a birth date of 1/11/1992, without asking the UV for identification or for her date of birth. ‘On December 17, 2009, the licensee was unable to produce complete records (invoices) when requested by duly authorized representatives of the Board, The licensee failure to maintain at least 50% food-to-alcohol sales in the months of July 2009, August 2009, and September 2009. The licensee failed to file the required Food/Alcohol Ratio Report for the month of October 2009. The licensure file for DISH Bistro shows that the license was issued on October 14, 2008, and that there have been the following prior violations: DATE VIOLATION PENALTY 12/4/08 Failure to properly display license $100 paid 5/28/09 Failure to file ratio reports for November 2008 thru March 2009 $100 paid Applicable Law The Rules and Regulations of the Board of License Commissioners provide in Section 5.4 (c) and (d): (©) A person who Is certified by an approved alcohol awareness program must be present on the licensed premises, during the hours in which alcohol may be sold. This person may be either the licensee or a person who is employed by the licensee in a supervisory capacity. 5() An up-to-date valid certificate from an approved alcohol awareness program must be presented to the proper authority upon request. Section 6.1(a): (@) —_Alicensee, 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 on the licensed premises, is at least twenty-one (21) years of age prior to the sale, service, possession, or consumption of any alcoholic beverage. The licensee Is responsible for any violation of this section. Section 5.5(a): (a) Alcoholic Beverage Purchases. Licensees must keep accurate records of all purchases of alcoholic beverages for a period of two (2) years from the date of each purchase. These records must include the date of each purchase, the quantity purchased, and the name and address of the seller. These records must be maintained on the licensed premises and must be available for inspection and produced upon request at all tines by all duly authorized representatives of the Board. Section 5.6: (2) _ Licensees holding a Class 8, BWL license (on-sale) must ensure that the _gross receipts from food sales are at least equal to the gross receipts from the sale of alcoholic beverages. (0) Receipts from Sale of Food - In calculating the gross receipts from the sale of food, any food stuff, soft drink or other non-alcoholic beverage contained in any ‘mixed drink must not be included in the calculation. The entire price of a mixed drink must be contained in the licensee's calculation of the gross receipts from the sale of alcohol. (©) A cover charge cannot be used in calculating food or alcohol ratios. For ‘purposes of this section, a cover charge means any charge that a licensee requires a patron to pay before the patron will be admitted to the licensed premises which does not include an identified alcoholic beverage or item of food to be served to the patron. () During the first year after the issuance or transfer of a Class B-BWL license, the licensee(s) must submit ratio reports to the Board every month. The reports must be made under oath, subject to penalties of perjury, and must be witnessed by a Notary Public. (©) The Board may conduct, as needed, an audit of the licensee's records to determine the ratio of gross receipts from the sale of food to gross receipts from the ssale of alcoholic beverages, pursuant to Article 2B, Section 6-201 of the Annotated Code of Maryland. The Board may require any licensee to provide supporting data which the Board, in its discretion, deems necessary to establish that the ratio requirements have been met.() In the event that a licensee fails to maintain the sales ratio requirement for a period of three consecutive months during the initial license year, or after the initial license year for the license or calendar year, the Board may, in its discretion, revoke the license, Decision, Conclusion of Law, and Disposition The Board concluded that the sale of alcohol by DISH Bistro is promoting public safety problems within the community in which DISH Bistro is located. The Board made this finding because of the failure by the licensee and his staff to provide adequate food while alcoholic beverages are available for consumption by their patrons. The Board also based their finding on the fact that the licensee has repeatedly failed to follow the Rules and Regulations of the Board and that he has submitted fraudulent ratio reports to the Board office. The Board further found that the licensee's staff have sold alcoholic beverages to a minor. The Board noted that since October 14, 2008, when the license was issued, the licensee has repeatedly violated the Board's Rules and Regulations. Between December 2008 and February 2010 the Board has found seven violations. Further, the licensee did not appear for the show cause hearing for these recent five Violations, despite having received adequate notice of the hearing and despite his having requested the hearing on the sale-to-minor charge. Despite the fines imposed, the violations at DISH Bistro have not ceased. A. ALCOHOL-AWARENESS CERTIFICATION CHARGE Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs. Pefia-Faustino, the Board concludes that: The licensee violated Section 5.4 (c) and (d) Alcohol Awareness Certification of the Board's Rules and Regulations on November 13, 2009 when the licensee's ‘employees were unable to have an alcohol-awareness certificate available for inspection. Upon a motion by Mr. Gilchrist, and seconded by Mrs. Metz, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs, Pefia-Faustino, 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 Five Hundred Dollar fine ($500) for the November13, 2009 alcohol awareness certification violation; the fine shall be due and payable to Montgomery County, Maryland on or before April 26, 2010,B. SALE TO MINOR CHARGE Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs, Pefia-Faustino, the Board concludes that : The licensee violated Section 6.1(a) Sales or Service to Minors/Consumption or Possession by Minors of the Board's Rules and Regulations on December 3, 2009 when the licensee's employee sold alcohol to an undercover volunteer who was under the age of 21. Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs. Pefia-Faustino, 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 Dollar fine ($1000) for the December 3, 2009, sale to minor violation; the fine shall be due and payable to Montgomery County, Maryland on or before April 26, 2010, 3. Ordered the licensee and all employees in a supervisory capacity to attend the Montgomery County Department of Liquor Control Alcohol Law Education & Regulatory Training (ALERT) class within 90 days of the mailing of this resolution, no later than June 21, 2010. C. FAILURE TO PRODUCE INVOICE RECORDS CHARGE Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs. Pefia-Faustino, the Board concludes that : The licensee violated Section 5.5(a) Records — Alcoholic Beverage Purchases of the Board's Rules and Regulations on December 17, 2009 when the licensee was unable to produce complete records (invoices) for inspection when requested. Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs. Pefia-Faustino, 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 Five Hundred Dollar fine ($500) for the December 17, 2009 invoice records violation; the fine shall be due and payable to Montgomery County, Maryland on or before April 26, 2010.D. FAILURE TO MAINTAIN RATIOS CHARGE Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs. Pefia-Faustino, the Board concludes that : The licensee violated Section 5.6 Ratio Accounting Procedures of the Board's Rules and Regulations for the months of July 2009, August 2009, and September 2009, Upon a motion by Mrs. Pefia-Faustino, and seconded by Mrs. Metz, with Mr. Gilchrist, Mrs. Metz, and Mrs, Pefia-Faustino voting in the affirmative, and Mr. Um voting in the negative, the Board: 1. Decided that, in view of the nature of the violation and the licensee's prior record, the public welfare and morals would be impaired by allowing the licensee to continue to operate because, in the judgment of the Board, the licensee is jeopardizing the safety of the community in which DISH Bistro is located, and 2. Determined that the Class B, Beer, Wine and Liquor license, On Sale Only, | Hotel/Restaurant, issued to Paul Collington to operate DISH Bistro should be and hereby is REVOKED. E, FAILURE TO FILE RATIO REPORT CHARGE Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs. Metz, Mr. Um, and Mrs, Pefia-Faustino, the Board concludes that : The licensee violated Section 5.6 Ratio Accounting Procedures of the Board's Rules and Regulations by failing to file the Food/Alcohol Ratio Report for the month of October 2009. Upon a motion by Mrs. Metz, and seconded by Mr. Gilchrist, and unanimously carried by Mr. Gilchrist, Mrs, Metz, Mr. Um, and Mrs. Pefia-Faustino, 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 Hundred Dollar fine ($100) for the failure to file October 2009 ratio report violation; the fine shall be due and payable to Montgomery County, Maryland on or before April 26, 2010. 3. Ordered the licensee to submit monthly ratio reports for an additional year for the period covering April 2010 through March 2011,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. ATTEST: I, the undersigned, hereby certify that the Board adopted the foregoing Resolution on March 18, 2010. Talso certify that on March 22, 2010, a copy of the foregoing Resolution was sent by certified mail, return receipt requested, to the licensee, and by regular first class ‘mail, postage prepaid, to the licensed premises. Kathie Durbin Division Chief Division of Licensure, Regulation, and Education Department of Liquor Control For the Board of License Commissioners For Montgomery County, Maryland 10