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Alcohol control board's decision to suspend Retriever's license questioned

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Posted: January 10, 2008 9:35 p.m.
Updated: January 25, 2008 5:00 a.m.
    Depending upon who you ask, the Alcohol Control Board may have overstepped its bounds Tuesday when it recommended to give Retriever's Sportsbar & Grill a three-day suspension of their alcohol license.
    The heart of the argument, by Retriever’s lawyer Michael Classens, refuting the ACB’s action is that the Georgia administrative law judge held a hearing in November regarding the citation they received in September. At that hearing, after the judge heard testimony from the officers involved and Retriever’s representatives, it was ultimately determined that no violation had occurred.
    “The hearing was based upon a citation issued by the [Georgia] Department of Revenue back on Sept. 7, 2007. There was a hearing scheduled in Savannah as a result,” said Classens. “At that hearing, the Department of Revenue presented their evidence. They rested. I moved the administrative law judge to dismiss the case because the evidence the government presented did not establish that a violation had occurred. The judge agreed and dismissed the case.”
    “That said, if you look at city ordinances, the ACB has the authority to consider punishment when a violation has occurred, or, if you look at a different section, when a violation is alleged. Either way, in this case, the violation was alleged in the citation, the hearing was held to consider whether or not the allegation was proved and the result of that hearing was that the judge said that the allegation was not proved, i.e. no violation occurred,” said Classens. “That was the thrust of the argument I made to the ACB. Without a violation, you don’t have the jurisdiction to issue punishment. Of course, they disagreed.”
    According to the Statesboro Alcohol Ordinance, Section 6-3(a), "Any person who violates any provision of this chapter shall upon conviction be punished as provided in this Code."
    ACB member Ray Fry was asked why the board issued a recommendation for suspension if the citation had been dismissed by the Department of Revenue.
    "Based on advice from Sam Brannen, the two do not relate to each other," said Fry. "Besides that fact the lawyer didn't have anything that showed the [administrative judge's] decision had been made. There's nothing in writing, what are we supposed to do?”
    Classens said the ACB record does not include the dismissal order because the administrative judge has not drafted the order yet.
    “On the other side of the coin, the reason it was dismissed because the witness - the young fellow who had purchased the beer - wasn't available [at the Savannah hearing]," said Fry.
    The 19-year-old, in the employee of the Department of Revenue, was present at the ACB meeting on Tuesday and said he purchased a beer from a bartender at Retriever’s.
    City Attorney Sam Brannen said that despite the dismissal of the citation by the Department of Revenue, that fact would not prohibit the ACB from taking action.
    "The department of revenue has various rules and regulations and they're just that, they're not criminal. If you violate their rules and regulations they have all kinds of penalties and punitive fines - all by their regulations,” said Brannen. “It is not a criminal violation (an administrative violation). That’s not dispositive of the criminal action. It would not prohibit the city from proceeding on the criminal violation,” namely the charge of violating the state law - selling to an underage person.
    Brannen made analogy using the Public Safety department.
    "If you get caught with a DUI, they can do an administrative suspension on your license while at the same time they're trying to revoke the license in state criminal court," said Brannen, "You've got two things to remember. The Department of Revenue has a bunch of rules and regulations. The State of Georgia has a bunch of criminal laws and you can have both going at the same time."
    Classens also wanted to clarify the testimony made by the 19-year-old. He said that even though the 19-year-old said he purchased the beer, neither of the officers witnessed the transaction. In fact, only one officer even saw the young man with a beer bottle in his hand. Classens argued that he could have simply picked up an empty bottle off a table to show to the officers left outside because they were deemed to be wearing inappropriate attire, by Retriever's staff.
    "[One officer outside], Gore, said that at some point the young DOR representative walked by with a beer bottle and he couldn’t rule out the fact that the bottle could be empty," said Classens. "[The ACB ruling] was based solely upon the 19-year old kid saying, 'I went inside and bought a beer.'"
    The bartender who allegedly sold the beer faces criminal charges for the alleged sale. As a result, he could not be compelled to testify on Retriever's behalf.
    Classens said, "As a result, there is a legal prohibition that prevents Retriever’s from having the one witness who is most essential to their defense come testify. That’s the opposite of due process.”
    The Georgia Administrative Hearings Office, headed by Judge Lisa Phillips, is responsible for all alcohol violation hearings in the state of Georgia. She was in Albany Thursday and unavailable for comment. A request to delay a decision until the judgment from Judge Phillips available was denied by the ACB.
   In Tuesday's article, we spelled Ray Fry's last name as Frye and also said the Statesboro Police conducted the sting when in fact it was members of the Georgia Department of Revenue - Alcohol Division. We regret the errors.

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