The City Club v. Department of Alcoholic Beverage Control

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 110
_________________________________________________________
THE UTAH COURT OF APPEALS
THE CITY CLUB, INC.,
Petitioner,
v.
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL,
Respondent.
Memorandum Decision
No. 20120637-CA
Filed May 15, 2014
Original Proceeding in this Court
Ronald J. Yengich, Attorney for Petitioner
Sean D. Reyes and Brent A. Burnett, Attorneys
for Respondent
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE
PAMELA T. GREENWOOD concurred.1
CHRISTIANSEN, Judge:
¶1 The City Club, Inc. challenges disciplinary sanctions the
Department of Alcoholic Beverage Control (DABC) imposed
against City Club for selling or furnishing alcohol to a person
under the age of twenty-one and for failing to verify proof of age
for an individual appearing to be under the age of thirty-five. City
Club argues that there is insufficient evidence to support DABC’s
findings and that DABC deprived City Club of due process.
Because evidence of substance supports DABC’s findings and

City Club, Inc. v. Department of Alcoholic Beverage Control
20120637-CA 2 2014 UT App 110
because City Club has failed to demonstrate that DABC violated
City Club’s due process rights, we decline to disturb DABC’s order
imposing disciplinary sanctions.
¶2 In the early hours of March 18, 2010, Utah Highway Patrol
Trooper Shawn Cannon stopped a vehicle in downtown Ogden for
equipment violations. After questioning the occupants of the
vehicle, Trooper Cannon determined that the passenger (Witness)
was nineteen years old and had been drinking alcohol that night.
Witness told Trooper Cannon that she and the driver (Driver) had
just left Brewskis, a nearby bar operated by City Club, where she
had consumed two alcoholic drinks. She also told Trooper Cannon
that she and Driver had “walked right on in” to the bar and had
not been asked for identification. Trooper Cannon contacted an
agent with the State Bureau of Investigation (SBI) and notified him
of Witness’s claims that Brewskis had failed to verify her age and
had served her alcohol. At the SBI agent’s request, Trooper Cannon
took written statements regarding these events from both Witness
and Driver, which he then forwarded to SBI. Trooper Cannon cited
Witness for possession of alcohol by a minor and released Witness
and Driver.
¶3 SBI Agent Cory Thomas contacted Witness on March 31,
2010, and Witness confirmed the information she had given in her
written statement. That same day, Agent Thomas visited Brewskis
and notified the bar’s manager (Manager) of the alleged violation.
Agent Thomas asked Manager if identification scanner records or
security camera footage were available. Manager told Agent
Thomas that the identification scanner information had been
deleted after seven days in accordance with state law, and that the
security camera footage had been recorded over after four days.
SBI referred the complaint to DABC on April 13, 2010. The next
day, DABC notified City Club of its intent to proceed with
disciplinary action.
¶4 DABC held a hearing on the matter in March 2012. Agent
Thomas, Driver, and Manager testified in person. Witness and

City Club, Inc. v. Department of Alcoholic Beverage Control
20120637-CA 3 2014 UT App 110
Trooper Cannon testified by telephone. Witness’s and Driver’s
March 18, 2010 written statements, Trooper Cannon’s incident
report, and Agent Thomas’s report were introduced as exhibits.
The hearing officer entered recommendations for DABC action,
incorporating his findings of fact and conclusions of law. The
hearing officer expressed some concerns about Witness’s and
Driver’s recollections of the events given the passage of nearly two
years between the violation and the hearing. However, with
respect to the material elements of the offense, the hearing officer
found that Witness and Driver remained affirmative in their
recollections, “even under aggressive cross-examination,” and that
their version of events was confirmed by Trooper Cannon.
Ultimately, the hearing officer concluded that the allegations
against City Club were proven by a preponderance of the evidence.
DABC adopted the hearing officer’s factual findings and legal
conclusions. Based on the hearing officer’s recommendations,
DABC ordered City Club to pay $4,542 in fines and administrative
costs and suspended City Club’s license for ten days. City Club
petitioned this court for judicial review.
¶5 City Club first challenges the sufficiency of the evidence
supporting DABC’s finding that City Club served alcohol to a
person under twenty-one years of age. “An alcoholic beverage may
not be sold, served or otherwise furnished to a . . . minor.” Utah
Code Ann. § 32A-5-107(15) (LexisNexis Supp. 2009). A minor for
purposes of the Alcoholic Beverage Control Act (the Act) is a
person under twenty-one years of age. Id. § 32A-1-105(37). We may
not disturb a finding of fact made by DABC if it is “supported by
any evidence of substance in the record.” Id. § 32A-1-120(2). Under
this “evidence of substance” standard, we afford greater deference
to DABC’s factual findings than we would in reviewing agency
proceedings under the Utah Administrative Procedures Act. See
Grace Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d
63, 67 (Utah Ct. App. 1989).
¶6 Having reviewed the record, we conclude that evidence of
substance supports DABC’s finding that City Club served alcohol

City Club, Inc. v. Department of Alcoholic Beverage Control
2. Evidence was also presented that Witness had a beer at Brewskis
that night but that another patron of the bar, not an employee, gave
her the beer.
20120637-CA 4 2014 UT App 110
to a minor. First, it is undisputed that Witness was under the age
of twenty-one on March 18, 2010. Next, both Witness’s and Driver’s
statements to Trooper Cannon indicated that the Brewskis
bartender had served Witness an alcoholic drink that evening.
Witness’s statement identified the drink given to her by the
bartender as a long island iced tea. Witness also testified at the
hearing that she was served a long island iced tea. Agent Thomas2
testified that when he contacted Witness during his investigation,
she told him she had purchased a long island iced tea at Brewskis
on the night in question. Agent Thomas’s hearing testimony on this
point is consistent with the written report of his March 2010
investigation.
¶7 City Club essentially argues that these witnesses were not
credible, primarily due to their fading memories of an event that
occurred some two years before the hearing. However, in
reviewing an agency decision, we do not reassess witness
credibility or reweigh evidence. Questar Pipeline Co. v. Tax Comm’n,
850 P.2d 1175, 1178 (Utah 1993). The hearing officer specifically
found “each of the . . . witnesses credible,” and City Club has not
demonstrated that any witness’s testimony could be properly
disregarded by this court. Cf. State v. Robbins, 2009 UT 23, ¶ 16, 210
P.3d 288 (explaining that in reviewing a criminal conviction, an
appellate court may disregard a witness’s testimony if that
testimony is “inherently improbable”). Accordingly, we defer to
DABC’s determination that these witnesses were credible.
¶8 City Club also argues that no evidence was presented to the
hearing officer that the drink served to Witness by the Brewskis
bartender was an alcoholic beverage. An alcoholic beverage is
defined by the Act to include, among other things, any drink that
“contains at least .5% alcohol by volume” and “is suitable to use for

City Club, Inc. v. Department of Alcoholic Beverage Control
20120637-CA 5 2014 UT App 110
beverage purposes.” Utah Code Ann. § 32A-1-105(2)(c), (32)(a)(i).
City Club relies on DeFusion Co. v. Utah Liquor Control Commission
for the proposition that a long island iced tea is not necessarily an
alcoholic beverage under the Act. See 613 P.2d 1120, 1124–25 (Utah
1980). In DeFusion, our supreme court dismissed an order of the
Liquor Control Commission imposing a license suspension against
a private club for serving alcohol to a nonmember. Id. at 1125. The
court explained that, while the testimony did establish that an
undercover agent obtained two “‘screwdriver’ drinks” as a
nonmember, “[n]o evidence was offered as to the contents of a
‘screwdriver’ drink as served at [the] club.” Id. at 1123. The court
concluded that evidence of the ingredients or alcohol content of a
drink was necessary to establish that the drink met the statutory
definition of an alcoholic beverage. Id. at 1123–24.
¶9 City Club asserts that no evidence was offered regarding
whether or not there was alcohol in the drinks Witness received at
Brewskis. However, DABC elicited testimony from Manager about
the contents of a long island iced tea as prepared at Brewskis.
Manager testified that a long island iced tea contains
approximately an ounce of vodka and an ounce of an alcoholic
flavoring in a fifteen-ounce drink. Thus, unlike in DeFusion,
sufficient evidence was offered here to show that a long island iced
tea as served at Brewskis meets the statutory definition of an
alcoholic beverage.
¶10 We therefore conclude that evidence of substance supports
DABC’s finding that City Club served or furnished alcohol to
Witness on the night in question, and we decline to disturb that
finding.
¶11 City Club also challenges the sufficiency of the evidence
supporting DABC’s finding that City Club failed to verify proof of
age of a person appearing to be under the age of thirty-five. Utah
law requires a social-club licensee like City Club to “verify proof of
age . . . before an individual who appears to be 35 years of age or
younger” enters into or procures an alcoholic beverage on its

City Club, Inc. v. Department of Alcoholic Beverage Control
20120637-CA 6 2014 UT App 110
premises. Utah Code Ann. § 32A-1-304.5(3) (LexisNexis Supp.
2009). The validity of the proof of age must be verified
electronically as provided by DABC rules—in this case by scanning
the proof of age with an electronic scanner. See id. § 32A-1-304.5(4).
Again, we may not disturb DABC’s finding on this point if it is
“supported by any evidence of substance in the record.” Id. § 32A-
1-120(2).
¶12 Our review of the record persuades us that ample evidence
supports DABC’s finding that City Club failed to verify Witness’s
proof of age. Witness’s and Driver’s March 18, 2010 statements
both indicated that they had entered Brewskis earlier that evening,
and that nobody was checking identification at the door. Witness
testified that she was not asked for identification and she did not
see others asked for identification. Agent Thomas testified that
during his investigation, Witness told him that she had “just
walked in” to the bar and was not checked for proof of age.
Trooper Cannon also testified that Witness and Driver told him
that they had walked into the bar and that neither was asked for
identification. Witness’s testimony is further corroborated by Agent
Thomas’s and Trooper Cannon’s reports. With respect to Witness’s
appearance, Trooper Cannon characterized Witness as a “younger
looking female” at the time of the traffic stop. Trooper Cannon’s
report from the night of the traffic stop states, “[Witness] looked to
be under the age of 21.” It is undisputed that Witness was only
nineteen at the time. Finally, as discussed above, see supra ¶¶ 6–10,
Witness was served an alcoholic beverage on the premises.
¶13 There is evidence of substance to support DABC’s finding
that Witness was admitted to Brewskis without being asked for
proof of age, that Witness appeared to be under the age of thirty-
five at the time, and that Witness obtained an alcoholic beverage on
the premises. City Club again challenges the credibility of the
witnesses on this issue, but we defer to DABC’s determination that
all the witnesses were “credible and believable.” See Questar
Pipeline Co. v. Tax Comm’n, 850 P.2d 1175, 1178 (Utah 1993). Thus,
we decline to disturb DABC’s findings on this point.

City Club, Inc. v. Department of Alcoholic Beverage Control
20120637-CA 7 2014 UT App 110
¶14 City Club next argues that it was denied due process
because it was not notified of disciplinary proceedings by DABC
until April 14, 2010, nearly a month after the violation occurred. As
a result, City Club argues that it was unable to preserve security
camera footage and the contents of its identification scanners to
disprove DABC’s allegations of serving a minor and failure to
verify proof of age. City Club claims that due process required
notice of DABC action “within [a] reasonable seven-day period”
after Trooper Cannon initially contacted SBI to report the alleged
violation.
¶15 “The requirements of due process depend upon the specific
context in which they are applied,” V-1 Oil Co. v. Department of
Envtl. Quality, 939 P.2d 1192, 1196 (Utah 1997), because “unlike
some legal rules, [due process] is not a technical conception with a
fixed content unrelated to time, place, and circumstances,” Cafeteria
Workers Union v. McElroy, 367 U.S. 886, 895 (1961) (citation and
internal quotation marks omitted). Evaluating the requirements of
due process in a particular context requires a balancing of three
factors: “the private interest that will be affected by the official
action”; “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards”; and “the
Government’s interest, including the functions involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” Mathews v. Eldridge, 424 U.S.
319, 335 (1976); see also V-1 Oil, 939 P.2d at 1196.
¶16 We decline to disturb DABC’s order on due process grounds
because City Club has failed to adequately brief this claim. An
appellate court has “discretion to not address an inadequately
briefed argument” that is “asserted without the support of legal
reasoning or authority.” See Angel Investors, LLC v. Garrity, 2009 UT
40, ¶¶ 35–36, 216 P.3d 944. City Club does not attempt to apply the
Mathews framework or identify the relevant considerations that
would enable this court to evaluate its claim that earlier notice from
DABC was constitutionally required. City Club does not explain

City Club, Inc. v. Department of Alcoholic Beverage Control
3. Indeed, it is not self-evident that identification-scanner data
would necessarily be helpful to City Club in defending against the
allegations that it failed to verify Witness’s proof of age and served
her alcohol. In most circumstances, the scanner data would reveal
only that no identification associated with Witness was scanned.
Such evidence would be neutral at best because it equally supports
DABC’s contention that Witness entered the club without her proof
of age verified and City Club’s implicit argument that Witness was
never at Brewskis that night or entered with fraudulent
identification.
4. For similar reasons, we reject City Club’s claim that its due
process rights were violated when Witness testified over the
telephone rather than appearing in person. City Club failed to
perform a Mathews analysis or cite any authority supporting its
argument. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Legally
unsupported assertions are insufficient to carry City Club’s burden
of demonstrating a due process violation. Angel Investors, LLC v.
Garrity, 2009 UT 40, ¶¶ 35–36, 216 P.3d 944.
20120637-CA 8 2014 UT App 110
how a seven-day notice period would decrease the risk of error,
because City Club does not explain how preserving the scanner
data would improve its ability to defend against the alleged
violations. Neither does City Club discuss the additional fiscal and3
administrative burdens that would be placed on police officers, SBI,
and DABC if preliminary investigation of violations were
constitutionally required to take place within seven days of the
alleged violation. City Club also fails to explain how its own
decision to discard security-camera footage after four days should
impose upon DABC an obligation to act before City Club destroys
that evidence.4
¶17 Also fatal to City Club’s claim is its failure to address the
statute governing the time in which DABC must bring a
disciplinary proceeding based on a violation of the Act. See Utah
Code Ann. § 32A-1-119.5 (LexisNexis Supp. 2009). The Act

City Club, Inc. v. Department of Alcoholic Beverage Control
20120637-CA 9 2014 UT App 110
specifically allows a non-DABC enforcement agency such as SBI to
report a violation to DABC within eight business days of
completing an investigation of a violation, with no apparent
limitation placed on the duration of the investigation. See id. § 32A-
1-119.5(3)(a). And DABC need only give a licensee notice of a
disciplinary proceeding within eight business days of receiving a
report from a separate enforcement agency or completion of an
internal DABC investigation. Id. § 32A-1-119.5(3)(b), (4)(a). City
Club has not addressed this portion of the Act or argued that the
time given enforcement agencies to investigate and respond to
alleged violations of the Act does not properly balance the
competing concerns of due process. See Mathews, 424 U.S. at 335. To
address City Club’s argument would require this court to evaluate
the constitutionality of this statute without the benefit of a properly
raised or briefed challenge. See Winward v. State, 2012 UT 85, ¶ 18
n.4, 293 P.3d 259. We decline to do so.
¶18 Evidence of substance supports DABC’s findings that City
Club served alcohol to a person under twenty-one years of age and
failed to verify proof of age for a person appearing to be under
thirty-five years of age. City Club has failed to adequately brief its
due process claims to enable this court to address them. We decline
to disturb DABC’s order.