BOARD OF LICENSE COMMISSIONERS FOR MONTGOMERY COUNTY Benjamin A. Tudor Ramon A. Garcia Licensees RESOLUTION 10-46 Proceedings On April 8, 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 Benjamin A. Tudor and Ramon A. Garcia, for the premises known as Restaurant Rio Lempa, located at 8200 Piney Branch 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 March 23, 2010. In the letter dated March 23, 2010, it was alleged that on July 25, 2009, a licensee and/or his employees sold or served alcoholic beverages to an intoxicated person or to a person who appeared to be under the influence of alcohol, or permitted an intoxicated person to consume or possess alcoholic beverages, in violation of the Rules and Regulations of the Board of License Commissioners, specifically Chapter 6, Prohibited Practices, Section 6.2, e ion or Possession by Intoxicated Persons. In the letter dated March 23, 2010, it was further alleged that on July 25, 2009, the licensees and/or their employees were running a disorderly house, in violation of the Rules and Regulations of the Board of License Commissioners, specifically Chapter 6, Prohibited Practices, Section 6.20 Disorderly House, In the letter dated March 23, 2010, it was also alleged that on September 12, 2009, the licensees and/or their employees operated their establishment in a manner that disturbed the peace and safety of the neighborhood, in violation of Chapter 6, Prohibited Practices, Section 6.19 Noise/Disturbance of the Neighborhood, of the Rules and Regulations of the Board of License Commissioners. Licensee Ramon Garcia was sworn in as an interpreter for a witness who spoke Spanish. At the outset of the proceedings, the licensees denied that on July 25, 2009, they and/or their employees sold or served alcoholic beverages to an 1intoxicated person or to a person who appeared to be under the influence of alcohol, or permitted an intoxicated person to consume or possess alcoholic beverages. The licensees also denied that on July 25, 2009, they and/or their employees were running a disorderly house. They also denied that on September 12, 2009, they and/or their employees operated their establishment in a manner that disturbed the peace and safety of the neighborhood. The licensees were represented by counsel, Murray A. Kivitz. 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 Speci Department of Liquor Control: ist, Montgomery County Inspector Wiliams introduced the County's case which resulted from a Montgomery County Police Department report dated 7/25/09: a violation of Section 6.2 Sales o Service to Intoxicated Persons and a violation of Section 6.20 Disorderly House. A third violation of Section 6.19 Noise/Disturbance of the Neighborhood resulted from a Montgomery County Police Department report dated 9/12/09. Detective Robert Michael Dane Onorio, Montgomery County Police: Detective Onorio testified that he was an investigator for a first-degree assault case that took place at Restaurant Rio Lempa on the morning of July 25, 2009. He stated that the first call to the police came in at approximately 1:20 a.m, that day for a subject stabbed in the neck. He stated that patrol officers responded to the call and they observed a victim sitting outside the restaurant with people attending to a wound on his neck. He further stated that the police found several women inside the facility with mops and buckets and that patrol officers said these women, who were part of Restaurant Rio Lempa’s staff, were cleaning up the crime scene. Detective Onorio further testified that the person who was charged in this case (identified as Jose Martinez-Mazariego) told him he had been drinking at home, then drinking at another establishment, and then went to Restaurant Rio Lempa to drink and was drinking at Restaurant Rio Lempa Detective Onorio stated that Mr. Martinez-Mazariego said he started drinking at 4:30 p.m., had approximately ten beers, and was driven to Restaurant Rio Lempa by his uncle. 2Mr. Martinez-Mazariego told Detective Onorio that he had never been to Restaurant Rio Lempa before that date. Detective Onorio testified that Mr. Martinez-Mazariego was quite intoxicated when he spoke with the detective. Detective Onorio stated that the investigation revealed that the stabbing victim had also been drinking. The victim said that he was sitting at a table in Restaurant Rio Lempa. The victim thought he had been stabbed with a beer bottle but Detective Onorlo stated that the weapon was a knife and that it nicked the victim’s artery. Detective Onorio provided color photos taken by the Montgomery County Police Department crime scene investigative unit of the interior of Restaurant Rio Lempa and of the suspect. The color photos were viewed by the Board, the licensees, and their attorney; black and white copies of these photos on four pages (front and back) were admitted into evidence as County Exhibits A (dated 7/26/09, 03:26), B (dated 7/26/09, 03:26), C (dated 7/26/09, 03:26), and D (dated 7/26/09, 03:58). The color photos were returned to Detective Onorio. Detective Onorio further testified that the police officers made it clear that they were upset with the employees of Restaurant Rio Lempa for cleaning up the crime scene. He stated that the staff of Restaurant Rio Lempa that he spoke with were very nervous; one staff member told him she was handed a mop and told to mop up but that she did not do it. Detective Onorio stated that itis very unusual for a crime scene to be cleaned up Ike this. He stated that the crime scene technician did not have much to do because the staff had cleaned up the crime scene. He further stated that he had never been to Restaurant Rio Lempa before this event took place. In response to questions from the Board, Detective Onorio stated that the perpetrator of the crime (Mr. Martinez-Mazariego) said he had been drinking at Restaurant Rio Lempa that evening. He further stated that the police officers stopped the staff from cleaning up when they arrived on the scene. Detective Chorio also stated that the police officers who arrived on the scene first told him that the crime scene was already cleaned up when they arrived. He stated that he did not observe the staff cleaning the scene. In response to questions from the licensees’ attorney, Detective Onorio stated that the person charged in this case (Mr. Martinez-Mazariego) said he arrived at Restaurant Rio Lempa at 10:30 p.m. and that his last beer was at 11:00 p.m. Detective Onorio further stated that Mr. Martinez-Mazariego was clearly intoxicated. The detective stated that he believed what Mr. Mr. Martinez- Mazariego was telling him at the time although the detective acknowledged that the man could have been telling him a lie.Officer Christopher West, Montgomery County Police Department: Officer West testified that he is assigned as a patrol officer in the Silver Spring district for Montgomery County Police. He stated that on September 12, 2009, at approximately 1:45 a.m. the police received a call for shorts fired outside Restaurant Rio Lempa. When he responded to the Restaurant Rio Lempa, Officer West stated that there was a crowd outside the restaurant but no victims were found. He stated that there had been a fight in the restaurant that spilled out into the street. He explained that, once the parties to the fight were in the street, one of the parties got a gun from their car and fired shots. Officer West stated that, after the shots were heard, the police stopped one vehicle with a driver and one passenger; both told the police they came from Restaurant Rio Lempa where they had been inside, drinking beer. Officer West stated that the passenger had blunt force injury to his face and told the police that he was hit by a beer bottle while he was inside Restaurant Rio Lempa playing pool. Officer West further stated that when the fight was pushed outside, the other party in the fight went to their vehicle and that’s when the shooting took place. He stated that the vehicle involved in the shooting was found with a weapon and bullets inside. Officer West stated that he had not been to Restaurant Rio Lempa before this incident. In response to questions from the Board, Officer West stated that he talked to security personnel in the restaurant and they told him that a fight started inside Restaurant Rio Lempa and a person had a bottle smashed in his face inside the restaurant and then the fight was taken outside. Officer West stated that he did not go inside the restaurant on the night in question. Ms, Roxana Sandoval, manager of Restaurant Rio Lempa: Ms. Sandoval testified that she lives in Silver Spring, in an apartment above the Restaurant Rio Lempa. She stated that she has been employed at the restaurant for three years. She further stated that she has received alcohol- ‘awareness certification training and she showed the Board her original certificate from this training. The certificate was from Maryland's BEST program and had an expiration date of June 21, 2011. Ms, Sandoval testified that, in regards to the July 25, 2009, incident, the patron who was charged in the stabbing was at the restaurant ten to fifteen minutes before the stabbing took place. She stated that she saw the patron arrive at the restaurant. She testified that he was not served at Restaurant Rio Lempa and stated she knew this because all the waitresses ask for her approval before serving customers alcohol. She further stated that the patron did not seem to be drunk but that he only came inside and was greeting someone at a table. Ms, Sandoval further stated that she did not see the actual stabbing but she knows that there was a stabbing that night.Ms, Sandoval stated that she was present at Restaurant Rio Lempa on September 12, 2009. She stated that two gentlemen came inside to drink and she asked them for identification. She stated that the men provided ID‘s and they were of age so she served them two beers. She further stated that, after 20 minutes, these two men went to play pool. Ms. Sandoval further stated that three other men came inside and asked for beer; she asked them for ID but they said they did not have any. Ms. Sandoval stated that she told these men that she could not serve them and that they said they were going to play pool. Ms. Sandoval observed them and saw that they were drinking the beers she had served to the first two men who were of age; she then went to the two of age men and took away their beers because they were giving them to the other two who had not provided ID. Ms. Sandoval stated that this upset the men and she went to collect their check. She stated that the men started insulting her and the other bartender who was working that night. Another patron confronted these men and told them they should not speak to women that way. Ms. Sandoval stated that an argument ensued and she called security and security escorted the men out; after that the men went to the parking lot and got their weapons. She stated that these men were shooting at the Restaurant Rio Lempa security guards and the security personnel from the restaurant next door. She also stated that she saw a person smash a bottle on another man’s head. In response to questions from the Board, Ms. Sandoval testified that, on July 25, 2009, there were forty to forty-five people in the restaurant. She stated that she was at the bar when the stabbing incident took place. She stated that anytime a waitress wants to serve someone alcohol, they have to ask her first and that it is her job to keep track of the patrons’ drinking. She further stated that, at the time of the stabbing, she was not the waitress for the table Where the victim was seated. Ms. Sandoval stated that it is her job to check IDs. She stated that, when the perpetrator entered the restaurant, he was talking to another man who was drinking in the restaurant. She further stated that the person who was stabbed was drinking and the others at the table were also drinking. In response to questions from the licensees’ attorney, Ms. Sandoval stated, in regards to the September 12, 2009 incident, that she was not sure if any customers in Restaurant Rio Lempa came from the restaurant next door but she assumed that they did. In regards to the July incident, Ms. Sandoval stated that there was not much blood after the stabbing. She stated that when the victim was stabbed, he held his neck and went outside so there was not much blood to clean up. In response to further questions from the Board regarding the July 25" stabbing, Ms. Sandoval stated that the police were late to arrive and the staff had mops out because they were doing normal late-night clean up. She stated that there were about 15 people inside the restaurant when the police came. She stated that the mop was outside and she was getting the mop ready so that 5when patrons left the staff were ready to clean up. Ms. Sandoval stated that people were not cleaning up when the police arrived. She stated that the key for the water is outside the restaurant and that she was outside filling up a bucket, getting ready to start cleaning; she explained that was why the mop was outside, She stated that the actual mopping of the floor had not occurred. Ms. Sandoval stated that the injured man walked outside on his own; no one pushed him out of the restaurant. She stated that the man who stabbed the other man was kept inside the restaurant by security personnel. Murray A. Kivitz, attorney for licensees: In closing, Mr. Kivitz acknowledged that there have been problems at Restaurant Rio Lempa and that they recently came off a 12-week suspension. He stated that, in this instance, the licensees did not participate in any acts that caused these incidents. He said that the police report for the July 25, 2009, stabbing incident indicates that the perpetrator said the devil made him do the stabbing. He stated that the psychotic episode of the stabber is not the fault of these licensees. In regards to the September 12, 2009 incident, Mr. Kivitz stated that Ms. Sandoval did what any good waitress would do, she checked the identification of patrons and removed alcohol from patrons who were sharing it with those who did not provide ID, which led to a fight outside the restaurant. Mr. Kivitz asked the Board to be as lenient as possible in this case and reminded the Board that these charges occurred prior to the matters that gave rise to the 12-week suspension. He stated that the licensees have taken all precautions to try to avoid these incidents. Licensee Benjamin Acuna Tudor is now at the restaurant all weekends even though he has another restaurant in Virginia, The licensees and staff have attended ALERT. Mr. Kivitz stated that these charges were not the fault of the licensees; they didn’t cause these events to happen. He stated that the altercation giving rise to the shooting may have occurred in any different restaurant. Mr. Kivitz further stated that he and his wife went to Restaurant Rio Lempa to eat, unknown to the licensees and they found that the place was clean; he concluded that the staff pay attention to cleanliness. 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 July 25, 2009, the licensees’ employees permitted an intoxicated patron, Jose M. Martinez Mazariego, to consume or possess alcoholic beverages on the licensed premises. 62. On July 25, 2010, the licensees’ employees permitted a person on the licensed premises, Jose M. Martinez Mazariego, to be intoxicated and endanger the safety of another person, Mynor I. Ramirez-Hernandez. 3. In regards to the charge of noise/disturbance of the neighborhood on September 12, 2009, there was insufficient evidence to prove that the violation occurred. 4. The licensure file for Restaurant Rio Lempa shows the license was issued on September 18, 2007, and shows the following prior violations for these licensees: Date Violation Penalty 4/30/2008 Exhibiting sexually explicit pictures $1000 paid 10/7/2008 No one with alcohol-awareness Certification on Premises (AAC) $ 100 paid Applicable Law The Rules and Regulations of the Board of License Commissioners provide: 6.2(a), Sales or Service to Intoxicated Persons/Consumption or Possession by Intoxicated Persons (a) A licensee, his or her agent{s) and/or employee(s) must not sell or serve any alcoholic beverage to any intoxicated person, or to any person who appears to be under the influence of alcohol and/or drugs, or who is acting ina disorderly manner. A licensee, his or her agent(s) and/or employee(s) must not permit any intoxicated person, or any person who appears to be under the Influence of alcohol and/or drugs, or who is acting in a disorderly manner, 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 not intoxicated, under the influence of alcohol and/or drugs, or acting in a disorderly manner prior to the sale, service, possession or consumption of any alcoholic beverage.Section 6.20 Disorderly House A licensee, his/her agent(s) and/or employee(s) must not permit any person(s) on the licensed premises to: (a) be intoxicated and endanger the safety of another person or property, or (b) be intoxicated or drink any alcoholic beverage and cause a public disturbance. Section 6.19 Noise/Disturbance of the Neighborhood (a) Alllicensees must operate thelr establishments in such a manner that will not disturb the peace and safety of the neighborhood. (0) Unnecessary noise emanating from the licensed premises is prohibited during hours of operation. (Q) The intent of this rule is that licensee's operations will not adversely ‘impact the surrounding neighborhood in terms of noise and/or anti-social, illegal, boisterous and/or unsafe activities. Decision, Conclusion of Law, and Disposition A. Sale to intoxicated patron violation of July 25, 2009 Upon a motion by Mrs. Metz, and seconded by Mr. Um, and unanimously carried by Mrs, Metz, Mr. Um, Mr. Gilchrist, and Mrs, Peffa-Faustino, the Board: Determined that on July 25, 2009, alcoholic beverages were sold, served, consumed or possessed on the licensed premises by an intoxicated patron in violation of Chapter 6, Prohibited Practices, Section 6.2 of the Board's Rules and Regulations. Upon a motion by Mr. Um, and seconded by Mrs. Metz, and unanimously carried by Mrs. Metz, Mr. Um, Mr. Gilchrist, 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 ($1000) fine for the July 25, 2009, sale- to-intoxicated patron violation; such fine shall be due and payable to Montgomery County, Maryland, no later than June 21, 2010.B, Disorderly house violation of July 25, 2009 Upon a motion by Mrs. Metz, and seconded by Mr. Um, and unanimously carried by Mrs. Metz, Mr. Um, Mr. Gilchrist, and Mrs. Pefia-Faustino, the Board: Determined that on July 25, 2009, the licensees’ employees permitted a person on the licensed premises, Jose M. Martinez Mazariego, to be intoxicated and endanger the safety of another person, Mynor I. Ramirez-Hernandez, in violation of Chapter 6, Prohibited Practices, Section 6.20 of the Board's Rules and Regulations. Upon a motion by Mrs. Metz, and seconded by Mr. Um, and unanimously carried by Mrs. Metz, Mr. Um, Mr. Gilchrist, and Mrs. Pefia-Faustino, the Board: 1. Determined that the public welfare and morals would not be impaired by allowing the licensees to operate and that payment of a fine will achieve the desired disciplinary purposes. ' 2. Assessed a Five- Hundred Dollar fine ($500) for the July 25, 2009, disorderly house violation; the fine shall be due and payable to Montgomery County, Maryland on or before June 21, 2010. C. Noise/disturbance of the neighborhood violation of September 12, 2009 Upon a motion by Mrs, Metz, and seconded by Mr. Um, and unanimously carried by Mrs. Metz, Mr. Um, Mr. Gilchrist, and Mrs. Peffa-Faustino, the Board: Determined that the noise/disturbance of the neighborhood violation of September 12, 2009, was not proven, 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. 9ATTEST: 1, the undersigned, hereby certify that the Board adopted the foregoing Resolution on May 6, 2010. Talso certify that on May 17, 2010, a copy of the foregoing Resolution was sent by both certified mail, return receipt requested, to the licensees, and by regular first class mail, postage prepaid, to the licensed premises and to the licensees’ attorney. AV Quon 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