State, airlines prepare for liquor license trial

Tom Sharpe | The New Mexican

10/11/2008 - 10/7/08

US Airways contends federal government regulates interstate transportation
US Airways and New Mexico are getting ready to go to trial early next year over the state's insistence that airlines flying into the state abide by its alcohol regulations.

The Arizona-based airline, now part of America West Airlines, sued the state last year in U.S. District Court after it was cited for serving alcohol to an already drunk passenger.

That passenger, Dana Pabst of Tesuque, was returning from Sacramento, Calif., on Nov. 11, 2006. After having drinks on a flight to Albuquerque, he stopped in Bernalillo to buy beer, then drove the wrong way on Interstate 25 near Santa Fe, colliding head-on with another car and killing five members of a Las Vegas, N.M., family and himself.

In February, a clerk at a Bernalillo convenience store was acquitted of charges of selling a six-pack of Bud Light to an already drunken Pabst, whose blood-alcohol content was 0.32 — four times the limit for driving.

US Airways also was cited for improperly serving alcohol to Pabst, but the state didn't prosecute the case because US Airways didn't have a New Mexico liquor license. The state also banned US Airways from serving alcohol on its New Mexico flights until it obtained a state liquor license.

In November, state Regulation and Licensing Department Director Edward Lopez Jr. and Alcohol and Gaming Division Director Gary Tomada denied US Airways' application for a liquor license, citing two cases other than Pabst's in which the airline allegedly served alcohol to intoxicated passengers en route to the Albuquerque Sunport.

US Airways' complaint filed last December argues that no state liquor license is needed because the federal government, not states, regulates interstate transportation: "These (state) laws, if allowed to stand, threaten to enmesh the nation's airlines in a crazy quilt of regulation in which each state is allowed to preside over a unique jurisdictional patch of its own making."

The most recent action in the case came Aug. 12 when U.S. District Magistrate Lorenzo Garcia ordered US Airways to produce copies of any liquor licenses it had been issued or denied in any other state. Garcia declined to order the firm to produce other documents sought by the state, but said most of these are public records that can be obtained if state attorneys "deem the information worth the time, trouble, and expense."

U.S. District Judge M. Christina Armijo has set March 9 for a bench trial. Lopez, who has since taken a job with Coca Cola, has been replaced as a defendant by Kelly O'Donnell, the new superintendent of the New Mexico Regulation & Licensing Department.

David Thomson, an assistant attorney general representing the state, and Tracy Genesen, a San Francisco lawyer for US Airways, said they expect the next step in the case will be the submission of requests for summary judgments later this month with a possible hearing on those requests in January.

Contact Tom Sharpe at 986-3080 or tsharpe@sfnewmexican.com.