FINAL ORDER

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Introduction

This case was brought on for hearing before the Kentucky Alcoholic Beverage Control Board on January 13, 2005, pursuant to Orders directing the Licensee to show cause, if any it could, why its alcoholic beverage license should not be suspended or revoked because of alleged violations of: (1) KRS 244.080(1) Sale to a Minor; and, (2) KRS 243.500(5), Tax Delinquency.

Chairman John W. Clay presided at the hearing and Malt Beverage Administrator John Barton was also present and completed a quorum. The Licensee was not present or represented by counsel, despite having notice by receiving notice of the hearing by certified mail, return receipt requested. The Hon. David W. Barr represented the Office of Alcoholic Beverage Control, (hereinafter “Office”).

Findings of Fact/Conclusions of Law

On June 12, 2004, at approximately 6:40 p.m., an Operation Zero Tolerance detail was conducted at Mark’s Mountain BBQ, LLC, d/b/a Mark’s Mountain BBQ. The detail was conducted by Investigators Ghomer Prater, John Adkins, and Ray Roberts, as well as Ky. ABC Investigative Aide 097-AL-6 (hereinafter “IA”). The IA was subjected to the standard pre-OZT checklist. The IA was wired with a tape recording device, and his photograph was taken. The IA was checked for I.D. and all I.D. was confiscated. A preliminary breath test was administered that showed no presence of alcoholic beverages. The IA was instructed to tell the truth, i.e. to provide his correct age if asked and to state he had no ID if asked for ID by the licensee.

The evidence shows that, on June 12, 2004, at approximately 6:40 pm, the IA entered the licensed premises and purchased a 12 ounce bottle of Bud Light from the Licensee, by and through its employee, Kathryn Meyer (hereinafter “Meyer”). Meyer did not ask for the IA’s age or identification. Meyer was criminally cited for selling alcoholic beverages to a minor. The evidence further shows that, one June 12, 2004, the IA was only 18 years of age. The evidence shows the IA’s date of birth is June 3, 1985. The Board finds that, on June 12, 2004, the licensee violated KRS 244.080 (1).

Bradley Wilcox, Revenue Collection Agent, Kentucky Department of Revenue, also testified. Mr. Wilcox testified that the Licensee, Mark’s Mountain BBQ, LLC, currently owes $19,500.01 in taxes with penalties and interest to the Kentucky Department of Revenue. Mr. Wilcox stated that the Licensee has not refuted owing taxes, and arrangements had been made with the Licensee to set up a payment plan, but the Licensee has failed to follow these arrangements. The Licensee had until January 18, 2005, to contact the Department of Revenue. Based upon the testimony presented, the Board finds that, on June 12, 2004, the licensee violated KRS 243.500(5).

Disposition

1. IT IS, THEREFORE, ORDERED that Retail Beer License No. 119-B-6866, issued to Mark’s Mountain BBQ, LLC, DBA Mark’s Mountain BBQ, 1435 North Ky. 11, Campton, Kentucky 41301, is suspended for a period of 25 business days. The Licensee is granted the option of fine payment in lieu of the suspension at a rate of $50 per day, for a total payment of $1250.00.

2. On or before Monday, April 4, 2005, the Board Secretary must receive payment by cashier’s check, money order, or certified check in the amount of $1250.00 made payable to the Kentucky State Treasurer. If the Licensee fails to tender the fine payment on or before said date, the twenty-five (25) day suspension shall begin at the opening of business at 6:00 o’clock a.m. on Tuesday, April 5, 2005, and shall end at the opening of business at 6:00 o’clock a.m. on Wednesday, May 4, 2005.

3. The Licensee shall enter into a payment agreement with the Kentucky Department of Revenue within thirty (30) days from the date of this Final Order. Failure to do so on or before Monday, April 4, 2005, shall result in the REVOCATION of Retail Beer License No. 119-B-6866.

Appellate Rights

All final orders of the Board may be appealed to Franklin Circuit Court in accordance with KRS 13B.140(1). To appeal, you should file a petition in Franklin Circuit Court within thirty (30) days after the mailing date of this Final Order. Copies of the petition must be served upon the Office and all parties of record in this proceeding. The petition shall include the names and addresses of all parties of record in this proceeding, including the Office. The petition shall also present a statement of the grounds upon which the review is requested. A copy of this Final Order shall accompany the petition.

SO ORDERED this the _________ day of _______________, 2005.

ALCOHOLIC BEVERAGE CONTROL BOARD

_____________________________________

JOHN W. CLAY

CHAIRMAN

_____________________________________

JOHN C. BARTON

MALT BEVERAGE ADMINISTRATOR

ATTEST:

_______________________________

ANGELA F. DONAHUE

BOARD SECRETARY

SERVICE LIST:

CERTIFIED MAIL:

Mark’s Mountain BBQ, LLC

DBA Mark’s Mountain BBQ

1435 North Ky. 11

Campton, KY 41301

Mark Meyer, Process Agent

Mark’s Mountain BBQ, LLC

1435 North Ky. 11

Campton, KY 41301

REGULAR MAIL:

Raymond Hurst

Co. Judge Executive and ABC Admin.

Wolfe County Courthouse

P.O. Box 429

Campton, KY 41301

Brad Wilcox

Finance & Administration Cabinet

Enterprise Collections Branch

Division of Collections/Claims

100 Fair Oaks Lane

Frankfort, KY 40601

Investigators Prater, Adkins, Roberts

Files