STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 11 ABC 07107
N. C. Alcoholic Beverage Control Commission,Petitioner,
vs.
Trianlge Food and Fun LLC,
T/A Six Forks Pub,
Respondent. / )
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) / DECISION
This contested case was commenced by the filing of a petition on June 3, 2011. On June 9, 2011, an Order for Prehearing Statements was issued to both parties requiring that prehearing statements be filed by both parties on or before July 10, 2011. Petitioner filed its prehearing statement on July 6, 2011. Respondent did not respond to the Order for Prehearing Statements. On July 21, 2011, an Order was issued extending the time for Respondent to file its prehearing statement through August 3, 2011. In this Order, Respondent was advised that sanctions would be entered should Respondent not file its prehearing statement as required. Respondent has not filed a prehearing statement as of the date of this Decision.
Petitioner filed a Motion for Sanctions on September 2, 2011, under G.S. 150B-33 (b)(10) and G.S. 150B-36 (c)(3), asking that the allegations by the ABC Commission be deemed proven without further evidence as a sanction for Respondent’s noncompliance with applicable procedural rules and its failure to prosecute.
Having considered the Motion for Sanctions filed by Petitioner in the light most favorable to the nonmovant, together with the documents of record, I find that Petitioner’s Motion for Sanctions should be, and the same hereby is, ALLOWED. Lesser sanctions have been considered and found unavailing. The following alleged violations are deemed proved by Petitioner without further evidence:
Permittee’s employee, Gregory Dent, a mixed beverage permittee, failed to file financial reports on a quarterly basis, as of April 11, 2011, regarding the sale of alcohol and other related information, as requested by the Audit Division of the NC ABC Commission, from November 1, 2009 through December 31, 2010, in violation of ABC Commission Rule 4 NCAC 2S.0520(d).
Based upon the foregoing evidence of record and in the discretion of the Commission, Respondent’s Mixed Beverage Restaurant ABC Permit is suspended for three (3) years and Respondent is assessed a civil penalty in the amount of seven hundred fifty dollars ($750.00).
NOTICE
The North Carolina Alcoholic Beverage Control Commission is the agency that will make the Final Decision in this contested case. As the final decision-maker, that agency is required to give each party an opportunity to file exceptions to this proposal for decision, to submit proposed findings of fact, and to present oral and written arguments to the agency pursuant to N.C. Gen. Stat. § 150B-40(e).
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).
This the 16th day of September, 2011.
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Beecher R. Gray
Administrative Law Judge