STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DAVIE 07 ABC 1644

N. C. Alcoholic Beverage Control Commission
Petitioner
vs.
Francisco Jubier Fuentes
T/A Monte del Rey
Respondent / )
))
)
)))) / DECISION

This contested case was heard before Beecher R. Gray, Administrative Law Judge, in the Office of Administrative Hearings, on March 27, 2008 in High Point, North Carolina.

APPEARANCES

For Petitioner: LoRita K. Pinnix, Esq.

For Respondent: no appearance

ISSUE

Whether Respondent, Francisco Jubier Fuentes, failed to file financial reports on an annual basis regarding the sale of alcohol and other related information as requested by the Audit Division of the NC ABC Commission, from January 2006 through May 2007, in violation of ABC Commission Rule 4 NCAC 02S.0520(d).

FINDINGS OF FACT

The undersigned Administrative Law Judge finds the following facts:

1. Respondent holds Malt Beverage on premise, Unfortified wine on premise and Mixed Beverage Restaurant permits, at a business known as Monte del Rey located at 1374 US Hwy 601 South in Mocksville, North Carolina.

2. An administrative hearing for this matter was scheduled for March 27, 2008 by the Office of Administrative Hearings. Both parties received notice of hearing in January, 2008 in this case by certified mail more than fifteen days prior to the hearing.

3. Both parties were sent a Notice of Rescheduled Hearing dated March 13, 2008, by regular mail.

4. Petitioner appeared through counsel, LoRita K. Pinnix, at the March 27, 2008 hearing with two witnesses, prepared to go forward with the hearing

5. Respondent failed to appear at the hearing.

6. On March 27, 2008 at 9:25 AM, Petitioner made a Motion for Sanctions in open court before Administrative Law Judge Beecher Gray for failure of Respondent to appear at the March 27, 2008 administrative hearing. Judge Gray granted Petitioner’s motion.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following Conclusions of Law:

1. The Office of Administrative Hearings has jurisdiction in this matter.

2. ABC Commission Rule 26 NCAC 03 .0114(a) states in pertinent part:

If a party fails to appear at a hearing ...., the Administrative Law Judge may:

(1) Find that the allegations of or the issues set out in the notice of hearing or other pleading may be taken as true or deemed proved without further evidence.

3. As Respondent failed to appear at the March 27, 2008 administrative hearing after proper notice, the allegations as set out in Petitioner’s petition are deemed proved without further evidence.

4. Respondent, Francisco Jubier Fuentes, failed to file financial reports on an annual basis regarding the sale of alcohol and other related information as requested by the Audit Division of the NC ABC Commission, from January 2006 through May 2007, in violation of ABC Commission Rule 4 NCAC 02S.0520(d).

DECISION

Based upon the foregoing Finding of Fact and Conclusions of Law, it is the decision of the undersigned Administrative Law Judge that Petitioner’s Motion for Sanctions is allowed and that Respondent’s ABC permits should be revoked.

ORDER

It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearing, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G. S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney on record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the N.C. Alcoholic Beverage Control Commission.

This is the 28th day of March, 2008.

______

Beecher R. Gray

Administrative Law Judge