11-2404-12689-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF PUBLIC SAFETY
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In the Matter of the Retailer’s License of Terry Thompson d/b/a/ Funkley Bar & Grill
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FINDINGS OF FACT CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on Tuesday, February 15, 2000, at 9:30 a.m. at the Gambling Control Board, 1711 West County Road B, Suite 300 S, Roseville, Minnesota 55113. E. Joseph Newton, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, Minnesota 55103-2106, appeared on behalf of the Department of Public Safety Alcohol and Gambling Enforcement Division ("the Department"). There was no appearance by or on behalf of the Respondent, Terry Thompson d/b/a Funkley Bar & Grill, 9490 267th Street, Lakeville, MN 55044. The record closed at the conclusion of the hearing on February 15, 2000.
This Report is a recommendation, not a final decision. The Commissioner of Public Safety will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. Parties should contact the Commissioner of Public Safety, 1000 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (tel. 651-296-6642), to ascertain the procedure for filing exceptions or presenting argument.
STATEMENT OF ISSUE
The issue in this case is whether the Respondent purchased alcoholic beverages from other licensed retailers while he was placed on the Liquor Delinquent Tax Posting List in violation of Minn. R. 7515.0520, and whether the Respondent provided an alcoholic beverage in a package other than its original package for consumption in violation of Minn. Stat. § 340A.405 and 340A.101, subd. 20; and, if so, whether the Respondent’s license should be subjected to discipline or whether a civil penalty should be imposed upon the Respondent pursuant to Minn. Stat. § 340A.415.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The Respondent, Terry Thompson d/b/a Funkely Bar & Grill, is licensed by the City of Funkley, Minnesota, and the Alcohol & Gambling Enforcement Division of the Department of Public Safety as a retailer of intoxicating liquor. The licensed premises are located in Funkley, Minnesota.
2. The Notice of and Order for Hearing and the Statement of Charges in this matter were served upon the Respondent on January 11, 2000, by certified mail and first class U.S. mail addressed to 9490 267th Street, Lakeville, MN 55044. The certified mail letter was returned to the Department as unclaimed. The letter sent by U.S. mail was not returned to the Department. (Exs. 1-3.)
3. The Notice of and Order for Hearing served on the Respondent contained the following informational notice:
Failure to appear at the hearing may result in the allegations contained in the Statement of Charges being taken as true, or the issues set out being deemed proved, and the Board may take disciplinary action against Respondent’s lawful gambling license without further proof pursuant to Minn. R. 1400.6000.
4. The Notice of and Order for Hearing scheduled the hearing for February 15, 2000, at 9:30 a.m. at the Gambling Control Board, 1711 West County Road B, Suite 300 S, Roseville, Minnesota 55113. The Respondent did not file any Notice of Appearance with the Administrative Law Judge or make any request for a continuance or any other relief prior to the February 15, 2000, hearing. The Respondent did not appear at the hearing scheduled for February 15, 2000, or have an appearance made on his behalf. He also did not contact the Administrative Law Judge between February 15, 2000, and the date on which this Report was issued.
5. Because the Respondent failed to appear at the hearing in this matter, he is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing and Statement of Charges are hereby taken as true and incorporated into these Findings of Fact.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Minnesota Department of Public Safety and the Administrative Law Judge have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 340A.415.
2. The Department has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law and rule.
3. The Respondent, having made no appearance at the hearing and not requesting any continuance or relief, is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing and Statement of Charges are hereby taken as true.
4. The Respondent has violated Minn. Stat. §§ 340A.405 and 340A.101, subd. 20, and Minn. R. 7515.0520. The Respondent is subject to discipline of his license and/or civil penalties pursuant to Minn. Stat. § 340A.415.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RESPECTFULLY RECOMMENDED that the Commissioner of Commerce take disciplinary action against the Respondent’s license as a retailer of intoxicating liquor and impose an appropriate civil penalty.
Dated: February 16, 2000
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BARBARA L. NEILSON
Administrative Law Judge
Reported: Tape recorded; one tape.
Under to Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.