STATE OF IOWA

BEFORE THE DEPARTMENT OF COMMERCE

ALCOHOLIC BEVERAGES DIVISION

IN RE: DOCKET NO. D-2010-00024

DIA NO. 10DOCBL013

Triple C, Inc.

d/b/a Triple C 1-Stop

301 Third St. NW

Hopkinton, Iowa 52237

PROPOSED DECISION

Beer Permit No. BC-17428

On March 3, 2010, the Iowa Department of Public Safety (DPS) filed an

administrative hearing complaint against Triple C, Inc. d/b/a Triple C 1-Stop

(licensee) alleging that on or about June 3, 2009 the licensee knowingly engaged

in illegal activity on the licensed premises, in violation of Iowa Code section

123.49(2)(j). The alleged illegal activity was assault, in violation of Iowa Code

section 708.2. [Count I] The Hearing Complaint further alleged that the licensee

used unreasonable force in obtaining a driver’s license from another person, in

violation of Iowa Code section 123.48. [Count II] A hearing was held before the

undersigned administrative law judge on June 14, 2010 at 1:00 p.m. at the office

of the Iowa Department of Commerce, Alcoholic Beverages Division, 1918 S.E.

Hulsizer, Ankeny, Iowa. Assistant Attorney General John Lundquist

represented DPS. The licensee was self-represented by two of its owners, Curtis

Bacon and Charles J. Bacon.

THE RECORD

The record includes the Hearing Complaint, the Notice of Hearing, the testimony

of the witnesses, and the following exhibits:

DPS Exhibit 1: Incident Report

DPS Exhibit 2: Voluntary Statement, TA

DPS Exhibit 3: Complaint and Order of Disposition, State v.

Charles Bacon

DPS Exhibit 4: Correspondence of Charles Bacon, 1/4/2010

DIA No. 10DOCBL013

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DPS Exhibit 5: Licensing Information Re: BC-17428

Licensee Exhibit A: Charles Bacon Letter

Licensee Exhibit B: Letter dated 6/12/2010 (Catherine Book, PAC)

Licensee Exhibit C: Letter dated 6/11/2010 (Mayor Cathy S. Harris)

Licensee Exhibit D: Letter dated 6/12/2010 (City Councilman

Robert J. Porter)

Licensee Exhibit E: Letter dated 6/11/2010 (Daniel Tucker and Judy

Tucker)

Licensee Exhibit F: Letter dated 6/12/2010 (Kevin R. Funke)

Licensee Exhibit G: Letter dated 6/11/2010 (Keith A. Kramer)

Licensee Exhibit H: Letter (Mary Helle)

Licensee Exhibit I: Letter dated 6/13/2010 (Kay Harris)

Licensee Exhibit J: Letter (Henry Fiedler)

Licensee Exhibit K: Letter dated 8/20/2009 (Kenna Marie Rickels)

FINDINGS OF FACT

Triple C Inc., d/b/a Triple C 1-Stop (licensee) is located at 301 Third Street NW in

Hopkinton, Iowa. Triple C Inc. is owned by Charles J. Bacon and his two sons,

Charles Bacon and Curtis Bacon. Charles J. Bacon has owned and operated

Triple C 1-Stop for 22 years, and he is well respected within his community.

Triple C 1-Stop sells gasoline, groceries, cigarettes, and beer. Triple C Inc. holds

Beer Permit BC-17428. (DPS Exhibit 5; Licensee Exhibits A-K; Testimony of

Linda Kirkwood; Kenna Rickels)

The incident that underlies the Hearing Complaint occurred at Triple C 1-Stop

on June 3, 2009. On that date, the Delaware County Sheriff’s Department

conducted undercover tobacco compliance checks at approximately thirteen

businesses. The purpose of the checks was to determine if the businesses would

sell tobacco products to persons under the legal age. Two underage females

participated in the compliance check under the supervision of a deputy sheriff.

Deputy Sheriff Jo Amsden was assigned to supervise the compliance checks. The

underage females were only permitted to carry their valid drivers’ licenses that

established that they were under the age of 18. None of the Delaware County

businesses sold tobacco products during the June 3, 2009 compliance checks.

(Testimony of Jo Amsden; TA; DPS Exhibit 1)

DIA No. 10DOCBL013

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The following facts are not disputed: TA, the 17 year old daughter of Deputy

Amsden, was one of the underage females participating in the compliance

checks. Deputy Amsden drove TA to Triple C 1-Stop in an unmarked squad car,

watched TA enter the store at approximately 1:28 p.m., and then parked the car

and waited for TA to come out. Kenna (Kay) Rickels was working and waited on

TA inside Triple C 1-Stop. Store owner Charles Bacon was also inside the store

at the time.

Kenna Rickels saw TA with her mother in the parking lot before she entered the

store. Ms. Rickels recognized Deputy Amsden, and she assumed that TA was

part of a compliance check, but she did not communicate her suspicion to

anyone. After TA entered the store, she went up to the counter and asked Kenna

Rickels for a pack of Marlboro Light cigarettes. Ms. Rickels asked to see TA’s

driver’s license, which TA handed over. Triple C 1-Stop had a device for

screening driver’s licenses. After swiping TA’s driver’s license through the

device, Ms. Rickels told TA that she “missed it by a year” and refused the sale.

As Kenna Rickels was handing the driver’s license back to TA, Charles Bacon

came over, grabbed TA’s driver’s license, and threw it on a table. At the same

time, Charles Bacon was yelling at Ms. Rickels to call 911 and have them send

someone to get both the driver’s license and the girl. (Testimony of TA; Charles

Bacon; Kenna Rickels; State Exhibit 2; Licensee Exhibits A, K)

However, the three witnesses to the incident provided some conflicting reports

and testimony concerning some of the details of the incident. Their reports and

testimony are summarized below:

TA left the store and told her mother that she would have to go inside to

get her license back because “some old guy” had taken her license and

“won’t give it back.” She told her mother that after the sale was refused

and her driver’s license was returned to her, the “old guy” came out from

nowhere behind the counter, pushed the clerk aside and lunged over the

counter towards her. In the process, he grabbed TA’s hand that was

holding the license. TA showed her mother where her hand had been

grabbed, but Deputy Amsden did not see any marks on her daughter’s

hand. TA further reported to her mother that she was scared and let go of

the driver’s license. TA further reported that the “old guy” was irate, told

her he could get fined by her buying cigarettes and she could get fined as

well, and told her if she wanted her “fucking” license back then someone

DIA No. 10DOCBL013

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would have to come and get it. (State Exhibit 1; Testimony of Jo Amsden)

Deputy Amsden took TA to the sheriff’s department where she prepared

a written statement. (State Exhibit 2) TA also testified by telephone at

hearing. TA’s written statement and testimony were consistent. TA

reported that the “old guy,” later identified as Charles Bacon, grabbed her

hand between the thumb and the forefinger. (Testimony of TA).

Kenna Rickels prepared a written statement on August 20, 2009 (Licensee

Exhibit K) and testified in person at hearing. Charles Bacon testified at

hearing and presented a written statement (Licensee Exhibit A) Both

Kenna Rickels and Charles Bacon deny that Charles pushed Kenna Rickels

and both deny that he lunged over the counter towards TA. They both

report that Charles grabbed the driver’s license out of Rickel’s hand before

she could hand it back to TA. Ms. Rickels testified that Mr. Bacon was

yelling at her for starting to hand the license back to TA and telling her

that was not what they were supposed to do. Neither of them believed

that Charles Bacon grabbed TA’s hand. (Testimony of Charles Bacon,

Kenna Rickels) In addition, Ms. Rickels testified that after Charles Bacon

threw the driver’s license on the table and told her to call 911, she told him

“Chuck, it’s a sting.” He told her he did not care she should still call 911.

(Testimony of Kenna Rickels)

Charles Bacon and Kenna Rickels both reported that prior to this incident

they had recently reviewed a pamphlet or paper describing cigarette and

alcohol laws. They recalled that the paper stated that if an underage

person attempts to buy alcohol or cigarettes, they should seize the driver’s

license from the underage person, call 911, and wait for the sheriff to

arrive. Based on their review of the paper, both of them believed that

Charles Bacon had the legal right to seize TA’s driver’s license. They did

not bring a copy of this paper to the hearing. (Testimony of Charles

Bacon, Kenna Rickels; Licensee Exhibit K)

Based on a review of the entire record, it is more probable than not that Charles

Bacon did make some physical contact with TA’s hand when he grabbed the

driver’s license. His intention, however, was to seize the driver’s license. He did

not intend to touch or hurt TA. It is also unlikely that he intended to frighten TA

although he clearly wanted to dissuade TA from ever attempting to purchase

cigarettes illegally again.

DIA No. 10DOCBL013

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After speaking to TA, Deputy Amsden entered Triple C-1 Stop to retrieve the

driver’s license. Deputy Amsden was wearing her deputy’s badge and a white t-

shirt with a law enforcement emblem on the front and back. She observed that

the clerk, Kenna Rickels, was on the phone. (Testimony of Jo Amsden; State

Exhibit 1) Kenna Rickels had called 911 as instructed by Charles Bacon, and the

dispatcher was just informing Rickels that an officer was entering the store to

speak to her. (Testimony of Kenna Rickels) Jo Amsden identified herself to

Kenna Rickels and asked for TA’s driver’s license. Ms. Rickels gave Deputy

Amsden the driver’s license and pointed out Charles Bacon as the owner of the

store. (Testimony of Jo Amsden; Kenna Rickels; State Exhibit 1; Licensee Exhibit

K)

Charles Bacon was sitting at a table in the back of the store with an elderly man,

Henry Fiedler. Deputy Amsden identified herself and told Charles Bacon that

she was conducting tobacco compliance checks. Using profanity, Mr. Bacon told

Deputy Amsden that what she was doing was illegal and he was going to call the

Attorney General. He also told her that he was going to give TA’s driver’s

license to the state. (Testimony of Jo Amsden; Charles Bacon; State Exhibit 1)

According to Deputy Amsden, when Charles Bacon saw that she already had

TA’s license, he started to stand up and lean towards her hand while stating

“give it back.” When Deputy Amsden refused to give it to him, Mr. Bacon

started swearing at her. After Charles Bacon started swearing at her, Deputy

Amsden told him to “have a nice day” and left the store. She never told Mr.

Bacon that TA was her daughter. (Testimony of Jo Amsden; State Exhibit 1)

Charles Bacon admitted that he may have used a swear word when he spoke to

Deputy Amsden but denies that he ever stood up or that he took his hands off

the table. (Testimony of Charles Bacon). Both Henry Fielder and Kenna Rickels

provided written statements stating that Charles Bacon never got up from the

table when he was talking to Deputy Amsden. Henry Fiedler’s statement stated

that Charles Bacon never took his hands off the table. (Licensee Exhibits J, K)

Henry Fiedler is now deceased. (Testimony of Charles Bacon)

Deputy Amsden prepared a written incident report and turned the case over to

Deputy Michael Wilson. (Testimony of Jo Amsden; State Exhibit 1) Deputy

Michael Wilson called Charles Bacon a few hours later and asked him to come to

the sheriff’s department to discuss the incident. Mr. Bacon refused and told the

deputy to come to him if he wanted to talk about it. Deputy Wilson signed two

DIA No. 10DOCBL013

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criminal complaints against Charles Bacon on June 3, 2009. One of the

complaints charged Charles Bacon with Interfering with Official Acts, in

violation of Iowa Code section 719.1, based on his statements to Deputy Amsden

and his alleged attempt to grab the driver’s license from her. The second

complaint charged Charles Bacon with Assault, in violation of Iowa Code section

708.2(6), a simple misdemeanor, based on the allegation that he grabbed TA’s

hand by the thumb and forefinger and took the license from her. The sheriff’s

department never interviewed Charles Bacon or Kenna Rickels concerning the

incident. (Testimony of Charles Bacon; Kenna Rickels; State Exhibit 3)

On January 4, 2010, Charles Bacon sent TA a written apology stating:

I am sorry for disturbing or upsetting you. I am very protective of

my business and did not know you were operating as a police

assistant while in my store.

(State Exhibit 4; Testimony of Charles Bacon) On January 10, 2010, the criminal

charges against Charles Bacon were dismissed. (State Exhibit 3-3)

CONCLUSIONS OF LAW

Count I

Count I of the Hearing Complaint alleges that on or about June 3, 2009, the

licensee violated Iowa Code section 123.49(2)(j) by knowingly engaging in illegal

activity, i.e. assault, on the premises covered by liquor license number BC-17428,

in violation of Iowa Code section 708.2.

Iowa Code section 123.49(2)(j) (2009) provides:

2. A person or club holding a liquor control license or retail

wine or beer permit under this chapter, and the person's or club's

agents or employees, shall not do any of the following:

...

j. Knowingly permit or engage in any criminal activity on the

premises covered by the license or permit.

The burden of going forward with evidence to show a violation is on the

Department of Public Safety, but the burden of proving compliance with the

DIA No. 10DOCBL013

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statute is on the licensee. See McCrea v. Iowa Department of Transportation, 336

N.W.2d 427 (1983); Iowa Code section 17A.18(3)(2009).

Iowa Code section 708.2, which is cited in the Hearing Complaint, provides the

penalties for different classes of assaults. Assaults not otherwise specified in the

first five subsections are considered simple misdemeanors under Iowa Code

section 708.2(6). Charles Bacon had been criminally charged with a simple

misdemeanor assault of TA. Although the criminal assault charge was dismissed

by the Delaware County District Court, that dismissal does not prevent the

Department of Public Safety from filing an administrative hearing complaint

seeking sanctions against the licensee for an administrative violation of Iowa

Code section 123.49(2)(j) based on the same allegations. The standard of proof in

an administrative hearing (preponderance of the evidence) is less demanding

than the standard of proof in a criminal case (beyond a reasonable doubt).

The definition of assault is found at Iowa Code section 708.1, which provides, in

relevant part:

708.1 Assault defined.

An assault as defined in this section is a general intent crime. A

person commits an assault when, without justification, the person

does any of the following:

1. Any act which is intended to cause pain or injury to,

or which is intended to result in physical contact which will be

insulting or offensive to another, coupled with the apparent ability

to execute the act.

2. Any act which is intended to place another in fear of

immediate physical contact which will be painful, injurious,

insulting, or offensive, coupled with the apparent ability to execute

the act.

…

Although assault is defined by statute as a general intent crime, the Iowa

Supreme Court has consistently held that in order to prove assault, the state

must demonstrate not only that the defendant intended to make physical contact,

but that the defendant intended that physical contact to be insulting or offensive.

Wyatt v. Iowa Department of Human Services, 744 N.W.2d 89, 94 (Iowa 2008); State

v. Keeton, 710 N.W.2d 531, 533-534(Iowa 2006).

DIA No. 10DOCBL013

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There is insufficient evidence in the record to establish that Charles Bacon had

the requisite intent to make physical contact with TA, that he intended to make

physical contact that would be insulting or offensive to her, or that he intended

to place her in fear of immediate physical contact that would be painful,

injurious, insulting, or offensive. Based on this record, it appears that Charles

Bacon only intended to seize TA’s driver’s license and did not intend to touch or

grab her hand. Based on TA’s testimony and consistent reports, it is likely that

Charles Bacon made some physical contact with TA’s hand when he grabbed the

driver’s license. However, it appears that any physical contact with TA was

accidental or inadvertent and was not intentional. No marks were left on TA’s

hand, and neither Mr. Bacon nor Ms. Rickels realized that he touched TA at all.

It is significant that Charles Bacon, unlike his clerk, did not realize that TA was

participating in a tobacco compliance check until after he grabbed the driver’s

license and told Rickels to call 911. Charles Bacon believed that he was dealing

with an underage person trying to illegally purchase cigarettes from his business.

In addition, Mr. Bacon was under the mistaken, though apparently sincerely held

belief that if a driver’s license was used in an attempt to illegally purchase

tobacco, then the retailer was required to seize the driver’s license and call law

enforcement. He did not understand that he was only authorized to seize a

driver’s license if it had been falsified or altered or if it belonged to another

person. See Iowa Code section 123.48. He believed he was legally entitled to

seize TA’s driver’s license.

The fact that Charles Bacon actually believed that he had a right to seize the

driver’s license was corroborated by his employee, who shared this mistaken

belief, and by the fact that he immediately told the employee to call 911. The

preponderance of the evidence failed to establish that Charles Bacon knowingly

engaged in illegal activity, i.e. assault of TA, on the licensed premises.

This conclusion should not in any way be interpreted as approval for Charles

Bacon’s demeanor and language when he interacted with TA and with Deputy

Amsden. Liquor licensees and beer permittees are required to cooperate with

law enforcement officers in the performance of their duties to enforce the

provisions of Iowa Code chapter 123. 185 IAC 4.7(2). Mr. Bacon used very poor

judgment throughout this incident, both in his use of profane language and in his

verbal challenge of Deputy Amsden. However, the evidence failed to establish

that he assaulted TA on the licensed premises.

DIA No. 10DOCBL013

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Count II

Count II charges the licensee with using unreasonable force to obtain a driver’s

license from another person, in violation of Iowa Code section 123.48. Iowa Code

section 123.48(2009) provides, in relevant part:

123.48 Seizure of false or altered driver’s license or nonoperator

identification card.

1. If a liquor control licensee or wine or beer permittee

or an employee of the licensee or permittee has a reasonable belief

based on factual evidence that a driver’s license as defined in

section 321.1, subsection 20A, ….offered by a person who wishes to

purchase an alcoholic beverage at the licensed premises is altered

or falsified or belongs to another person, the licensee, permittee, or

employee may retain the driver’s license or nonoperator

identification card. Within twenty-four hours, the card shall be

delivered to the appropriate city or county law enforcement

agency of the jurisdiction in which the licensed premises is

located…

2. Upon taking possession of an identification card as

provided in subsection 1, a receipt for the card with the date and

hour of seizure noted shall be provided to the person from whom

the card was seized.

The statute regulating Cigarette and Tobacco Taxes has a nearly identical

provision permitting the seizure of certain driver’s licenses used in an attempt to

purchase tobacco products, although that statute is not cited in the Hearing

Complaint. See Iowa Code section 453A.4(2009).

Charles Bacon mistakenly believed that he had legal authority to seize any

driver’s license that was used in an attempt to buy cigarettes or alcohol illegally.

However, Iowa Code section 123.48 (and Iowa Code section 453A.4) only

authorizes liquor licensees (and holders of cigarette permits) to seize a driver’s

license if they have a “reasonable belief based on factual evidence” that the

driver’s license has been altered or falsified or that the driver’s license belongs to

another person. TA presented her own valid driver’s license when she tried to

purchase cigarettes at Triple C I-Stop. Charles Bacon did not see TA’s driver’s

license when it was presented, so he could not have formed a reasonable belief

that the driver’s license was false, altered, or belonged to another. In fact, TA

DIA No. 10DOCBL013

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would have had no reason to present a false ID that showed her to be underage.

Based on the facts presented, Charles Bacon was not legally authorized to seize

TA’s driver’s license under the authority of Iowa Code section 123.48, whether

by reasonable force or otherwise.

However, Count II does not charge the licensee with obtaining TA driver’s

license without statutory authorization. Rather, Count II specifically charges the

licensee with using “unreasonable force” to obtain the driver’s license. Iowa

Code section 123.48(3) provides:

3. A liquor control licensee or wine or beer permittee or an

employee of the licensee or permittee is not subject to criminal

prosecution for, or to civil liability for damages alleged to have

resulted from, the retention and delivery of a driver’s license or

nonoperator identification card which is taken pursuant to

subsections 1 and 2. This section shall not be construed to relieve

the licensee, permittee, or employee of the licensee or permittee

from civil liability for damages resulting from the use of

unreasonable force in obtaining the altered or falsified driver’s

license or identification card or the driver’s license or identification

card believed to belong to another person.

Based on this statute, a person who seizes a driver’s license under the authority

of the statute but uses “unreasonable force” in doing so may not escape liability

for civil damages. Presumably this provision is in place to make sure that a

licensee is financially responsible if a patron is assaulted or if the patron is

injured or their property is damaged when their license is taken. “Unreasonable

force” is not defined in the statute.

It could be argued that any forceful seizure is “unreasonable” if the person lacks

statutory authority to seize the license. Nevertheless, as already stated, the

licensee was not specifically charged with seizing the license without statutory

authority to do so. He was charged with using unreasonable force. The evidence

in the record did not establish that Charles Bacon assaulted TA when taking her

driver’s license. Any physical contact with TA was unintentional, left no injury,

and did not constitute “unreasonable force.” This record does not justify finding

a liquor license violation or imposing a sanction based on the licensee’s use of

“unreasonable force,” in violation of Iowa Code section 123.48.

DIA No. 10DOCBL013

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ORDER

IT IS THEREFORE ORDERED that the Hearing Complaint filed against Triple C,

Inc., d/b/a Triple C 1-Stop on March 3, 2010 is hereby DISMISSED.

Pursuant to the administrative rules of the division, any adversely affected party

may appeal a proposed decision to the Administrator of the Alcoholic Beverages

Division within thirty (30) days after issuance of the proposed decision. In

addition, the Administrator may initiate review of a proposed decision on the

Administrator's own motion at any time within thirty (30) days following the

issuance of a proposed decision. 185 IAC 10.27(1) and (2).

Requests for review shall be sent to the Administrator of the Alcoholic Beverages

Division, 1918 S.E. Hulsizer, Ankeny, IA 50021. Unless otherwise ordered, each

appealing party may file exceptions and briefs within thirty (30) days of the

notice of appeal or order for review. Within thirty (30) days thereafter, any

party may file a responsive brief. The Administrator may shorten or extend the

briefing period as appropriate. The Administrator may resolve the appeal on the

briefs or provide an opportunity for oral argument. 185 IAC 10.27(6). The

administrator may affirm, reverse or modify the proposed decision.

A party who is adversely affected by the proposed decision shall not be deemed

to have exhausted administrative remedies unless the adversely affected party

files a request for review of the proposed decision within the time provided and

the Administrator has reviewed the proposed decision and has affirmed,

reversed, or modified the proposed decision

Dated this 7th day of July, 2010.

Margaret LaMarche

Administrative Law Judge

Department of Inspections and Appeals

3rd Floor, Wallace State Office Building

Des Moines, IA 50319

CC: See Attached Mailing List

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