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Division of Alcoholic Beverage Control v. MAG Entertainment

November 14, 2008

DIVISION OF ALCOHOLIC BEVERAGE CONTROL, PETITIONER-RESPONDENT,
v.
MAG ENTERTAINMENT, L.L.C., T/A CHEERLEADERS GENTLEMEN'S CLUB, RESPONDENT-APPELLANT.



On appeal from the Division of Alcoholic Beverage Control.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2008

Before Judges Reisner, Sapp-Peterson and Alvarez.

MAG Entertainment, L.L.C. t/a Cheerleaders (MAG, the bar or the licensee) appeals from a September 11, 2006 final decision of the Director of the Division of Alcoholic Beverage Control (ABC), and from the Director's December 21, 2007 decision on reconsideration. We affirm the finding of a regulatory violation, modify in part as to the penalty imposed and remand for further proceedings consistent with this opinion.

I.

A. Background

This case arises from a fatal automobile accident in which Humberto Herrera-Salas (Herrera) left a bar known as Cheerleaders, turned the wrong way down a divided highway adjacent to the bar's parking lot and struck an oncoming car head-on, killing two people. The ABC Director revoked the bar's alcoholic beverage license, on the theory that the bartender had served Herrera while he was intoxicated, in violation of N.J.A.C. 13:2-23.1(b),*fn1 and that the bar personnel had then ejected him from the premises without taking sufficient precautions to make sure that he did not drive. In response to a motion for reconsideration, the ABC Director gave MAG siX months to sell the liquor license in lieu of revocation, provided the owners could also reach a settlement with the agency to pay a monetary penalty.

The following evidence was produced at the hearing before the Office of Administrative Law.

B. The Events Preceding Herrera's Arrival At Cheerleaders

In April 2000, Herrera was 23 years old, 5 feet 3 inches in height, and weighed approximately 135 pounds. According to his testimony, he began drinking alcohol at the age of eighteen and, for the next five years up until around the age of twenty-three, he would normally drink only two to three beers a month.

On the morning of April 15, 2000, Herrera felt tired and decided to purchase alcohol rather than going to work. By 11:00 a.m., Herrera had already consumed two beers while watching television. Herrera may have cooked eggs for himself around noon, although he was not sure he ate anything.

At around 4:30 p.m., Herrera left his house to pick up his brother and sister-in-law from their place of employment. On his way there, Herrera spotted his friend Robles walking. They decided to purchase alcohol and return to Robles' house. At the liquor store, Herrera bought a twelve pack of light beer, and Robles bought a twenty-four pack of light beer.

They arrived at Robles' home at approximately 5:00 p.m. Herrera initially testified that he drank three beers in total. Later in his testimony, however, Herrera was presented with his deposition from a previous civil case, where he testified that he actually drank anywhere from five to eight beers at Robles' house. In response, Herrera indicated that he might have consumed five to eight beers because he drank three of his, plus some that Robles gave him.

At around 10:00 or 11:00 p.m., Robles and Herrera left Robles' house to get something to eat at a restaurant in Camden. It was closed, however, and they decided to purchase a six pack of beer instead. Herrera testified that he drank one beer. Robles then suggested that they go to a bar, and Herrera drove them to Cheerleaders in Gloucester City. At this point, Herrera testified, he was "a little bit dizzy but [he] could drive."

C. Inside Cheerleaders

Herrera and Robles arrived at Cheerleaders, a gentlemen's club, sometime between 10:30 and 11:00 p.m. According to Herrera, he felt "almost normal" as he walked in. In a recorded statement, the Cheerleaders' doorman, Mark Vogeding, opined that Herrera and Robles did not appear to be intoxicated upon entering.

At the hearing, differing accounts were presented concerning what happened inside Cheerleaders. According to Herrera, he sat at the front of the bar with Robles, and they each consumed three beers. After that, Herrera switched to tequila and drank three shots. Robles and Herrera then relocated from the front of the bar to a table, where Herrera drank two more beers. According to Herrera, he "[n]ever drank like that" before this night at Cheerleaders. He testified that on that day, he "crossed the limit." Herrera further testified that at no time did any Cheerleaders bartender refuse to serve him a drink when requested or take any drinks away.

While Robles was in the bathroom, Herrera began observing a woman dancing. When he began to feel dizzy and tired, Herrera lowered his head onto the table for a while. He then raised his head and resumed observing the woman. At this time, Herrera noticed a man staring at him. An argument ensued after Herrera asked the man what he wanted, and Cheerleaders' security escorted Herrera out of the tavern.

Cheerleaders personnel present in the club on the night in question gave a somewhat different version of events. According to Laura D'Amico, a Cheerleaders bartender, in her opinion, Robles and Herrera were not intoxicated when they first entered Cheerleaders. Throughout the course of the night, they each had approximately three beers and three shots of tequila. D'Amico testified that at no point while she was serving Herrera drinks, did she believe he was intoxicated.

Shortly after serving the third round, D'Amico observed one of the two men with his head down on the bar*fn2 falling off the stool. Contrary to Herrera's testimony, D'Amico insisted that she "flagged" Herrera and Robles at this point, meaning that she refused to serve them any more alcohol. She testified that she also took away the two shots and two beers that had been on the bar in front of the men. When Herrera indicated that he would be driving home, D'Amico told him that she would call a taxi. However, she did not immediately call the taxi, because she had to assist the other bartender who was extremely busy across the bar.

Meanwhile, Isiar Jazmin Gauatt (Jazmin)*fn3 , a Cheerleaders dancer, observed Herrera and Robles sitting next to each other at the bar while she was dancing on stage. Herrera was slumped over with his head down and his eyes open. According to Jazmin, he "was not coherent to what was going on around him . . . and was not paying attention to his surroundings." Therefore, when she began approaching customers for tips, Jazmin skipped over Herrera and approached Robles, who proved to be "obnoxious and grabby." She pushed his hand aside, and then proceeded to dance for other customers.

While Jazmin was changing after her shift, another dancer, Jennifer Noval (whose stage name was Apple Pie), entered the dressing room crying. Jazmin saw scratch marks all the way across her stomach, perhaps caused by a ring. According to Apple Pie, while she was sitting at the bar with a customer, Donald Tucker, awaiting her turn to dance on stage, she observed a Mexican male (Herrera) sitting around the corner of the bar "passed out . . . with his eyes closed [and] head down." According to Tucker, while he was speaking to Apple Pie, his back was to Herrera, who was approximately eight feet away.

Suddenly and without provocation, Herrera walked over to Tucker and struck him in the back of the ribs, causing Tucker and Apple Pie to fall off their chairs. Herrera also hit Apple Pie, "like a sideswipe across" her stomach. Herrera then picked up a chair but was quickly restrained from behind by the barback, Jeremy Whitman, who had observed Herrera knock Tucker down. The barback escorted Herrera outside in a "bear hug," with the help of John Zerggen the cook, and the doorman.

At this point, D'Amico, who testified she was unaware of the entire incident, finished assisting the other bartender and moved toward the telephone located in the middle of the bar. She picked up the phone and dialed the number of a taxi company. Before someone answered, D'Amico looked over at Robles and Herrera to get a description to relay to the taxi operator. To her surprise, she saw Christopher Ginty, the manager, speaking to a thin man whose description corresponded to Herrera. The other man was not in sight. Knowing something was wrong, D'Amico hung up the phone and approached the manager, who told her that he would call a taxi.

The Cheerleaders employees had differing opinions on the state of Herrera's intoxication when he was ejected from Cheerleaders. Each employee was asked to rate Herrera's intoxication on a scale of one to five, with one being slightly tipsy, and five being totally inebriated. Both Jazmin and the cook opined that he was about a five. Jazmin specifically noted that Herrera could not even get up from his seat, while the cook stated that Herrera "wasn't in good shape." D'Amico stated that the man resting his head on the bar was clearly intoxicated and was falling off his stool. Apple Pie believed that Herrera must have been under the influence of drugs based on his actions; his eyes were "crooked" and "squinting". The bouncer had a different assessment, concluding that Herrera was about a three, or "moderately inebriated" and in control of himself. Ginty, the manager, claimed that he did not interact with Herrera enough to establish an opinion regarding his sobriety.

D. Outside Cheerleaders

After ejecting Herrera from the bar, the bouncer, the barback and the cook placed Herrera "on the pavement in front of the front door". Herrera tried to re-enter the bar, but was quickly subdued by the bouncer, who told him to remain outside. The manager went back inside to look for Robles.

At this point, Herrera was left unsupervised, as the bouncer and the cook returned to their posts in the bar. Herrera proceeded to enter the driver's side of his van because he "wanted to go home." According to Herrera, none of Cheerleaders' employees attempted to prevent him from driving, nor did they offer to call him a taxi.

When the manager brought Robles outside, Herrera had vanished. The manager then asked Jazmin, who had just arrived outside after changing, to serve as a translator for Robles, who spoke primarily Spanish. According to Jazmin, Robles could not even stand up on his own; he was "staggering and wobbling". The manager instructed Jazmin to inquire where Herrera had gone. Robles did not respond. Jazmin then asked Robles if he wanted a taxi, to which he responded in the affirmative. The manager reentered Cheerleaders and called the cab company. According to the bouncer, it was customary for the manager to call a taxi for intoxicated patrons, and in this case, the manager had called a taxi for both Herrera and Robles.

After calling a local taxi company, the manager returned and informed Robles that a taxi would be coming shortly, telling Robles to wait outside next to the steps. Jazmin then left Robles hanging onto the handrail and went home. When asked if she believed Robles could transport himself, she responded "[a]bsolutely not." If it were not for the hand rail, Jazmin opined, Robles would have fallen to the ground.

A short while later, before the taxi arrived, Robles walked away from Cheerleaders and joined Herrera in the van. According to numerous eyewitnesses present at the scene, after proceeding slowly through the parking lot in reverse, Herrera accelerated violently and crashed his van into a parked vehicle in the adjacent parking lot, causing its back end to elevate off the pavement. Robles, concluding that Herrera was intoxicated, exited the vehicle, and Herrera drove away.

E. The Accident

The loud crash in the parking lot caused many inhabitants of nearby apartment buildings to run outside. Once outside, they began chasing after the van on foot, yelling "Stop." Nonetheless, Herrera continued to pull out of the Cheerleaders driveway onto Route 130, which at the time had two lanes going northbound, and two lanes going southbound separated by a concrete median divider. Herrera drove past the divider and turned left, going south onto the northbound side. In other words, Herrera was driving on the wrong side of the road, against oncoming traffic. After traveling about a mile, Herrera's van collided head first with a northbound vehicle, resulting in the deaths of the front seat passenger and driver. The two backseat passengers were seriously injured.

F. Police Investigation

The first officer to arrive at the scene at approximately 12:50 a.m. was Patrolman Crothers, who found Herrera trapped inside his vehicle. While trying to remove him, Crothers detected "a strong odor of alcohol coming from his person and his breath." He also found a beer can lying in the street near Herrera's van. Herrera was taken to the hospital by ambulance.

Patrolman Steven Burkhardt arrived at the scene at approximately 12:53 a.m., shortly after Crothers. Burkhardt opined that this was "by far the worst accident that [he had] handled up to that point or since." After fifteen minutes, however, he was dispatched to the site of a hit and run accident at the parking lot of the Chatham Square Apartments on Route 130, adjacent to the Cheerleaders parking lot.

At the Chatham Apartments, several witnesses told Burkhardt that a blue van had backed across the parking lot at a high rate of speed, struck a parked car, and fled the scene heading south on northbound Route 130. Another witness told Burkhardt that Robles was in the witness's apartment, having walked there from Cheerleaders after the hit and run occurred. Robles told Burkhardt that he was drinking with his friend Herrera earlier that evening in Cheerleaders, when his friend was kicked out and left without him. Burkhardt transported Robles to the police station for further questioning, and then returned to the scene of the head on collision. When Burkhardt arrived, he observed that Herrera's vehicle was a blue van that had brown paint on the rear bumper, consistent with the paint color of the vehicle that had been struck in the parking lot.

Sergeant Willie Mahan interviewed several witnesses who were present at Cheerleaders after Herrera smashed into the parked vehicle.*fn4 Donna Gaber, a tenant of an apartment complex adjacent to the bar, informed Mahan that, after hearing a loud crash in the parking lot, she peered out her window and observed Robles urinating. Gaber, Vincent DiCarlo, Mariano Rivera, and Steven Harris all opined that Robles was extremely drunk, incoherent, and could barely stand up. Robles told Rivera that he had been drinking with his friend, Herrera, in Cheerleaders for about four hours before departing. Harris stated that the doorman informed him that he kicked Herrera and Robles out of Cheerleaders because they were both "too drunk."

During the course of the investigation, Sergeant Mahan contacted the taxi company that the manager allegedly called on the night in question. The cab company employee advised him that "there was no record of a request for a cab for Cheerleaders to respond to take anyone."

1. Herrera's Blood Alcohol Content

At the hospital where Herrera was admitted, Crothers directed the medical personnel to provide him with samples of Herrera's blood for testing. According to Crothers, the emergency staff in the trauma unit drew blood from Herrera, placed the vials in a small plastic cup with ice, sealed them, and then handed them to him. Dr. Raja R. Salem, a trauma surgeon at the hospital, testified that this was the normal procedure implemented when asked by policemen to draw blood samples.*fn5

Afterwards, Crothers transported the blood vials to the police station and placed them in an evidence freezer, secured with a lock. Crothers then filled out a chain of evidence custody report form and placed it in the investigator's mailbox. According to the Chain of Custody Information located in the Blood Alcohol Content Analyst Report, Investigator G.E. Clodfelter from the Prosecutor's Office, Crime Scene Unit, turned the samples over to Charles Johnson, a Camden County Medical Examiner's Investigator, on April 17, 2000. The following day at 5:00 p.m., the samples were turned over to Analytic Bio-Chemistries Incorporated for analysis.

The physician who tested Herrera's blood, Theodore John Siek, Ph.D., submitted a certification describing the laboratory analysis he performed. According to Siek, Herrera's blood was analyzed on April 20, 2000, to ascertain the presence of alcohol. Siek performed a gas chromatography test using a gas chromatograph, which is "commonly used in the industry to determine the presence of ...


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