Instead of paying a $5 cover charge, the man who visited the newest downtown bar on a busy November Saturday night flashed his badge.
That’s according to Doug Nava and Mark England, co-owners of The Blue Rooster, who say he then walked with a practiced stumble as he headed up the stairs from the basement bar, where, in a previous incarnation of the night hotspot, a stripper pole decorated the dance floor.
A server, they say, alerted other employees of the man’s stagger, and a bartender refused to serve him alcohol.
“If I ever wanted to kiss somebody in my life, it was that night,” says Nava, “because God bless my staff for paying attention.”
The badge wasn’t that of a local cop, but from the New Mexico Department of Public Safety’s Special Investigations Division, a police unit with statewide jurisdiction to enforce the Liquor Control Act—marking at least the second time SID darkened the door since the bar’s grand opening in early October, say the owners.
Owners of downtown’s newest bar, The Blue Rooster, say they’ve had visits from SID at least twice since opening in October.
Like many interviewed in the industry, the owners of The Blue Rooster say they see the need for SID’s role in a state with a poor track record for drunken driving. But Nava, a lifetime local with a tattoo of Don Diego de Vargas to prove it, says he wishes the investigators would put on the shoes of a bar owner who must ensure each of the thousands of liquor sales conforms with the rigid provisions of the state law.
“They should be educators,” Nava says of the division, “not witch hunters.”
Capt. Tim Johnson took command of the division in August 2013 from Bill Hubbard. He says his agents were “not involved” in the November visit to Blue Rooster, but they do have records of a visit on Halloween, when SID found two violations and gave the bar time to come back into compliance.
It’s part of what he describes as the “balanced approach” SID is taking between education and enforcement. He says he’s not the official who “walks around pounding his chest every time we have to take an enforcement action on a licensee.”
An SFR analysis found SID has drastically shifted enforcement tactics in Santa Fe County in the last year alone, issuing citations against pubs, liquor stores, restaurants and gas stations across the jurisdiction more than it has since at least 2010. At the same time, those citations have been less punitive than in the past.
Alcohol retailers say troublesome conflict remains in the relationship. They point to controversial enforcement tactics—which have included paying minors to attempt to purchase alcohol, stealthily video-recording sales to people agents perceive to be intoxicated or even sitting down in a bar, sometimes for over an hour, waiting for a violation.
Still, alcohol-abuse prevention advocates argue that the powerful liquor industry’s bottom line is driven by a harmful substance. They say it’s consequences—not warnings—that will keep things in check, especially in a year that’s seen a slight uptick in DWI-related crashes in the area.
Johnson couches enforcement interactions in much less antagonistic terms than what operators of a licensed liquor business have come to expect. Some in the industry welcome that change.
He’s aware that some tactics, like sting operations, cause liquor licensees “grief,” but he maintains they’re a necessary part of slowing the “DWI and alcohol-related quagmire that we find ourselves in.”
He says it’s frustrating that punishments attract more attention than SID’s educational efforts, which included at least 4,500 inspections at liquor establishments across the state in 2014, more than four times the number of premise inspections conducted last year, says Johnson. SID agents have discretion to give businesses time to come into compliance rather than issuing fines, he says, and in many cases, giving businesses 30 days to fix violations.
"I guess they’ve got a job to do, and I’ve got a job to do"
“Obviously, with alcohol-related problems in the state, we can ill-afford to have adversarial relationships with the licensees and their staff,” he says. “And we believe that premise inspections [are] the first step to creating those partnerships based on the common goal of the responsible sale of alcohol.”
But ask area servers and owners to talk about SID, and they’re unlikely to comment on the record. Nava and England are among the few industry insiders interviewed in Santa Fe who would share their thoughts publicly about the agency. Others feared retaliation for openly criticizing the division.
Nick Klonis, owner of the 45-year-old downtown, rock-‘n’-roll, cash-only bar Evangelo’s, shook his head when asked one night to comment on SID’s enforcement. “I guess they’ve got a job to do, and I’ve got a job to do,” he says. “That’s all.”
“Businesses try desperately to fit within the law and do the right thing,” says Carol Wight, CEO of the New Mexico Restaurant Association, “and they’re scared to death of these citations.”
Public records detailing citations issued by SID to Santa Fe County liquor establishments from Jan. 1 to Oct. 28 demonstrate the dramatic enforcement shift under Johnson. The citations more than tripled from the previous year. And if history is any guide, citations are sure to spike in the next few weeks as agents monitor the busy holiday season.
Yet, it’s a markedly different type of enforcement.
While officials issued 68 citations so far this year, a jump from 21 in all of 2013, warnings made up a much bigger portion of citations than in past years.
Nick Klonis mans the door at his downtown bar, Evangelos, where patrons pay cash only.
Many of the warnings stem from increased site visits by the division, like the one The Blue Rooster received on Halloween night, when the owners say a “polite” official from the division showed up during peak hours on the holiday to check on paperwork regulations—such as whether the liquor license was properly displayed on the premise.
Ben Lewinger, executive director of the New Mexico chapter of Mothers Against Drunk Driving, says his group has worked closely with Johnson over the past year. “The new director is really looking to take a balanced and fair approach to compliance,” he says.
Johnson notes that in January, SID assigned two agents and a sergeant to the county, a change from the past when Albuquerque agents would also cover Santa Fe. “That increased activity that you see in Santa Fe County, it really boils down to stability of having personnel there,” he says.
Johnson says he’s taken seriously the three complaints from operators about conducting site inspections during holidays and rushes.
“I apologize to them—the agents are just doing their job,” he says. “We do try hard to ensure that we’re not doing our inspections during their peak hours.”
Wight says members of the New Mexico Restaurant Association report they’ve received citations for administrative issues that hadn’t come up before in the past. She says she thinks the “new director was put in place and told to be less lenient on those paperwork violations.”
In all of the 22 cases where a Santa Fe County liquor establishment failed to produce “required documents,” the state issued an establishment a warning rather than a fine this year, the records through Oct. 28 show.
About 64 percent all citations issued here in that time period ended in warnings, which also helps explain why the state had only collected $16,250 in fine revenue from Liquor Control Act violations in Santa Fe County by the end of October. Meanwhile, from 2010-2013, the state collected an average of $32,000 each year from the county’s liquor establishments.
“I think from a strategic point of view it makes sense to have a wider breadth of citations issued, so you’re interacting with more license holders and just cracking down on a few ,” Lewinger says.
Yet some in the prevention community worry that any perceived relaxation in enforcement will lead to more alcohol-related harms. Linda Atkinson, executive director of the Albuquerque-based nonprofit DWI Resource Center, says, “The laws might be there,” but that the state is “taking the path of least resistance” against liquor establishments.
“The incentive is to sell, sell, sell; that’s where the enforcement needs to come in,” she says. “I don’t think you get that with singing ‘Kumbaya’ and issuing warnings.”
She prefers a “tough-love approach” focused on deterrence that she posits will lead people to be aware of and obey laws.
More citations, more warnings
Between 2010 and 2013, a liquor establishment here was most likely to be cited by SID for selling alcohol to a minor or to an intoxicated person. Those violations constituted nearly three-fourths of 115 total citations during that four-year period. But in the first 10 months of this year, those citations constituted just one-third of violations.
The percentage change is not because SID officials are issuing fewer citations against county establishments for those more serious offenses, but because they’re issuing more citations for what amount to paperwork violations this year. As of Oct. 28 in Santa Fe County, SID issued 14 citations for sale to a minor and nine citations for sale to an intoxicated person, the second and third most common citation behind “records violations.”
But there’s one notable shift in enforcement of the major violations of the Liquor Control Act: In the nine times SID issued a citation against a county liquor-license holder for sale to an intoxicated person, it fined only two establishments. The rest received warnings.
In years past, warnings weren’t the rule of the day. For the previous three years, records show, only three of the 27 citations against a Santa Fe County liquor establishment for sale to an intoxicated person resulted in a warning or dismissal. Most everyone else paid penalties ranging from $1,000 and suspension of liquor sales for at least a day to $10,000 in fines and revocation of a liquor license.
Sale to an intoxicated person is perhaps the most controversial requirement state law imposes on liquor sellers. The industry argues that, despite mandatory training for servers, it’s not always “obvious” when someone is intoxicated, while alcohol-abuse prevention advocates counter that because alcohol impairs a person’s judgment, a server needs to ensure that it’s sold responsibly.
“Maybe [a] person has had two shots in the last five minutes, one right next door, one right across the way, and is now going to get their third shot,” says Cesar Fort, partner in another of the city’s happening basements, The Matador. “I look at them and they’re fine. They’re not slurring or anything. The alcohol is still in their stomach, you know? And here I serve them their third shot. And two minutes later, they stumble over drunk, and I’m like, ‘There was no way where I could anticipate how much they’ve had to drink.’”
Wight agrees with the improbable success of such assessments. “This is the one place in the law where basically the government deputizes private citizens to carry out the law,” she says.
Fort says SID’s enforcement has led to a change from the days of unregulated alcohol consumption when “anyone was allowed to pretty much get drunk to where they could fall off a stool and just wander out in the street, cause havoc, drive, whatnot.”
“Bars do not overserve in the way that used to be more typical,” he says.
The division’s general conduct has gotten a lot better, he says, because going after smaller citations and working with bars to ensure they comply with the law sends an effective message. To Fort, that’s better than criminalizing servers based on subjective guesses about the intoxication level of a patron.
“In addition to other commonly recognized tests of intoxication,” state rules say a server can tell a person was overserved if his or her blood-alcohol content is at 0.14 or higher on breath or blood tests taken 90 minutes after the “sale, service or consumption of alcoholic beverages”—evidence that the person was intoxicated at the time of the last sale. Obviously, it’s not a practice for bars to administer the tests.
A patron pounds a bottle of water below decks at The Matador.
SID probes of overserving have led to some of the state’s most serious fines of $10,000 against establishments in high-profile DWI-related fatalities in Santa Fe’s recent history, including against Blue Corn Brewery & Café for serving James Ruiz three beers and three shots the night in 2010 that he crashed his truck into the vehicle of a San Juan family, killing sisters Del Lynn and Deshauna Peshlakai, ages 19 and 17. It took more than three years for the fine to be issued.
The state also fined Cowgirl BBQ $10,000 in 2012 after Kylene Holmes drove the wrong way on I-25, slamming her car into an ambulance at speeds estimated to exceed 100 miles per hour. The state alleged the Cowgirl served Holmes, who died in the 2010 crash, four vodka martinis. Cowgirl employees refused her another drink and called authorities when her and a passenger, who lived, stumbled into the car.
Both establishments were also forced to suspend liquor sales temporarily.
Case like these are part of the reason why SID continues to conduct source investigations of incidents, in which officials examine receipts from drivers to determine where the last alcohol sales were made.
But it has other—more controversial—enforcement methods to ensure those tragedies aren’t repeated. Sometimes SID agents will simply sit down at the table of an establishment to look for violations, as in the night of Jan. 26, 2013, at Junction bar in the Santa Fe Railyard when Paul Varela, “for unknown reasons,” struck up a conversation with two SID agents sitting at a nearby table, according to an incident report.
Varela told the agents he had been drinking since 2 pm that day, first at the ski basin, then at Five Star Burgers and “openly admitted to being ‘fucked up.’” The agents cited a Junction server after he sold Varela, whose speech was reportedly slurred, another beer. For evidence, they put Varela through a variety of sobriety tests, including a Breathalyzer test in which he allegedly blew 0.26. Agents reported that the server told them he was mad that they let him serve someone they knew to be intoxicated, but one agent replied that, “It was his responsibility to recognize and not serve intoxicated persons.”
The $1,000 fine and one-day suspension of alcohol sales has been Junction’s only fine for overserving from 2010 to November 2014.
This year, the state fined Kelly’s Liquor Barn for a sale to an intoxicated person alleged to have occured on April 23—which resulted in a $1,000 fine and suspension of liquor sales for one day. The penalty is equal to as much as 20 percent of the revenue the store typically earns daily in alcohol sales, according to figures provided by store manager Hector Veleta. Add the fine to a day of suspended alcohol sales, and that’s a total revenue loss of $5,500 to $7,000 for selling one 40-ounce bottle of beer.
Veleta tells SFR he wasn’t there that night, but that a clerk, whom SID fined $250 for the transaction, sold a patron the booze. The shop attracts a lot of foot traffic from the nearby emergency homeless shelter, he notes. “Sometimes it’s really hard to tell” if a patron is intoxicated, says Veleta, who adds that customers will also send someone else to the store to purchase alcohol on their behalf.
The store hadn’t had any run-ins with SID from 2010 to 2013, data show, but it did receive another warning for sale to intoxicated person on July 17 this year—as well as two warnings for special dispenser permit violations on that same day. Veleta says the warnings stemmed from an event it catered at the Railyard.
Consequence and Liability
Any more violations for Kelly’s in 2014, and the family-owned business that’s been at its Cerrillos Road location for 12 years risks losing its liquor license.
That’s because in 2006, the three-violation threshold went into effect after a Liquor Control Task force determined that New Mexico’s five-violation threshold for pulling a liquor license was lower than neighboring states. The task force discovered that no liquor establishment’s license had been suspended since the five-violation threshold went into effect.
Keeping up with all the state regulations are avoiding confrontation with SID agents is a tall order for establishments like Kelly’s Liquor at the corner of Cerillos and Siler roads.
Since then, SID’s undercover sting operations have closed down businesses in the county and across the state. Just look to the corner of Agua Fría Road and St. Francis Drive, where a ramshackle building that used to be Matt Chavez’ House of Booze—after it took over Tony’s Liquorette—now sits empty after being fined twice in 2012 for selling to an intoxicated person and once for selling to a minor.
If the industry argues that enforcement of the state’s liquor laws has been too harsh, alcohol-prevention advocates will point to various troubling studies, like a Centers for Disease Control examination released in 2014 that found New Mexico had the highest percentage of alcohol-related deaths of adults aged 20 to 64 out of any state in the nation.
Statewide, however, New Mexico’s drunken-driving problem has improved over time, declining steadily since 2006.
In Santa Fe County, alcohol-related crashes have generally dipped from a high of 377 in 2004. Still, this year in Santa Fe County, alcohol-related crashes saw a 28 percent spike from October 2013 to October 2014 for a total of 114.
Peter Olson, DWI prevention specialist with Santa Fe County, notes it’s difficult to determine the reason for the increase. “The numbers are pretty small, so we don’t know if that’s statistically significant,” he says of the increase. “But on a personal level, it’s very significant.”
The DWI Resource Center’s Atkinson maintains that although it’s challenging to measure alcohol-related policy outcomes since policies change frequently, there’s a correlation between reduction in alcohol-related harms on the road and harsher policies for alcohol-related offenses—and vice versa—that places liability on third parties like liquor establishments.
“When you raise the perception of the risk of getting caught, behavior changes,” she says. “The research is very solid on that.”
Captain Johnson attributes the reduction in alcohol-related crashes over the past decade partly to liquor license holders making more responsible sales, calling them “part of the solution.” Back at The Blue Rooster, the music beats on a Monday night as a small group of patrons sit down at a table, adding to the handful of customers joking around the marble-coated bar. The dozen or so patrons make it one of the busier establishments Monday night—a sign of nightlife in a city whose mayor campaigned to rejuvenate it.
The owners say they try to mitigate that risk of overserving by knowing their customers, as in the case of The Matador’s Fort, who argues that local police officials are in a better position to target problems than a state agency because local authorities develop relationships with both servers and patrons.
Nava says if anyone stumbles into The Blue Rooster showing signs of overintoxication, they’ll sit them down on the couch near the front door and give them water. Sober drivers get all the free sodas they want, he says.
“I would be devastated,” Nava says, if someone the club served ended up in an alcohol-related crash. “I would be extremely crushed.”