STATE OF IOWA BEFORE THE DEPARTMENT OF COMMERCE ALCOHOLIC BEVERAGES DIVISION

Transcription

1 STATE OF IOWA BEFORE THE DEPARTMENT OF COMMERCE ALCOHOLIC BEVERAGES DIVISION IN RE: DOCKET NO. A DIA NO. 09DOCBL074 Chops Old, Inc. d/b/a Chops Old Bank th PROPOSED DECISION Liquor License No. LC On March 27, 2009, the Alcoholic Beverages Division (division) sent two letters denying the renewal application filed by Chops Old, Inc. d/b/a Chops Old Bank (licensee) for Liquor License No. LC The reasons given for the denial were that the licensee s corporation had been administratively deleted by the Iowa Secretary of State and that it was delinquent in the payment of sales taxes. The licensee filed a timely appeal and was granted timely filed status. A hearing was held before Administrative Law Judge Margaret LaMarche on June 23, 2009 at 3:00 p.m. in the hearing room at the Alcoholic Beverages Division, 1918 S.E. Hulsizer, Ankeny, Iowa. Assistant Attorney General John Lundquist represented the division. The licensee was served with the notice of hearing by certified mail on June 1, 2009 but failed to appear for hearing. THE RECORD The record includes the Acknowledgement of Appeal; Notice of Hearing; testimony of the witnesses; and the following exhibits: Division Exhibit 1: Division Exhibit 2: Division Exhibit 3: Renewal Application Notices of Permit Denial with proof of service Summary Re: Chops Old, Inc., Iowa Secretary of State Online Corporation Database Division Exhibit 4: Certification of Dissolution, 8/11/08 Division Exhibit 5: Notice of Appeal

2 Page 2 FINDINGS OF FACT 1. On or about March 9, 2009, Chops Old, Inc. d/b/a Chops Old Bank (licensee) filed a renewal application for Liquor License No. LC for the premises located at th in Waukee, Iowa. (Division Exhibit 1; Testimony of Debra Harlan) 2. Upon receipt of the renewal application, division staff consulted the Secretary of State s website to determine the corporation s current status. The licensee s corporation was inactive and had been administratively dissolved on August 11, 2008 for failure to deliver its 2008 Biennial Report as required by Iowa Code section (1) and On March 27, 2009, the division sent the licensee a letter denying its renewal application on the grounds that the corporation had been administratively deleted by the Iowa Secretary of State. As of June 22, 2009, the Secretary of State had not reinstated the licensee s corporation. (Division Exhibits 2, 3, 4; Testimony of Debra Harlan) 3. On March 27, 2009, the division sent the licensee a letter denying its renewal application on the grounds that the corporation was delinquent in the payment of sales taxes. As of June 23, 2009, the licensee still owed $7, for delinquent taxes for the last quarter of 2007 and for the first three quarters of This delinquency was based on sales tax returns filed by the licensee. The licensee has apparently entered into a payment plan with the Department of Revenue. The licensee made two payments of $ to the Department of Revenue on June 8 and June 18, The licensee still has a valid sales tax permit. (Division Exhibit 2; Testimony of Norman Cason) CONCLUSIONS OF LAW Iowa Code section (1)(a)(2009) provides that a liquor control license may only be issued to a person who is of good moral character as defined by the statute. Iowa Code section 123.3(26) provides the following relevant definitions for good moral character : 26. "Person of good moral character" means any person who meets all of the following requirements: a. The person has such financial standing and good reputation as will satisfy the administrator that the person will comply with this

3 Page 3 chapter and all laws, ordinances, and regulations applicable to the person's operations under this chapter c. Notwithstanding paragraph "e", the applicant is a citizen of the United States and a resident of this state, or licensed to do business in this state in the case of a corporation... The division s rules provide that the administrator may consider the licensee s record of prompt payment of local or state taxes due when it evaluates financial standing. 185 IAC 4.2(4) a. The licensee s failure to pay delinquent sales taxes provides a legal basis to deny the renewal application (1)(a); 123.3(26)(a)(2009); 185 IAC 4.2(4) a. In addition, the licensee s corporation was administratively dissolved by the Iowa Secretary of State on August 11, 2008, pursuant to Iowa Code section (1) and , for failure to file its 2008 biennial report. Unless the licensee s corporation is licensed to do business in this state through the Iowa Secretary of State, it cannot meet the good moral character requirements for holding a liquor license. Iowa Code sections (1)(a); 123.3(26)(c)(2009). The preponderance of the evidence established that Chops Old, Inc. d/b/a Chops Old Bank does not currently meet the statutory "good moral character" requirements to hold a liquor license in Iowa. Therefore, the renewal application must be denied. There has been no indication from the parties that the licensee s delinquent sales taxes have been paid or that the licensee s corporation was reinstated following hearing. DECISION AND ORDER It is therefore ORDERED that the renewal application for Liquor License No. LC , filed by Chops Old, Inc. d/b/a Chops Old Bank, is hereby DENIED. Motion to Vacate Default 185 IAC 10.22(3) provides that default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within 15 days after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 10.27(17A). A motion to vacate must state all facts relied

4 Page 4 upon by the moving party which establish that good cause existed for that party's failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion. Appeal on the Merits 185 IAC 10.27(1) and (2) provide that any adversely affected party may appeal a proposed decision to the Administrator of the Alcoholic Beverages Division within thirty (30) days after issuance of the proposed decision. In addition, the Administrator may initiate review of a proposed decision on the Administrator's own motion at any time within thirty (30) days following the issuance of a proposed decision. Requests for review shall be sent to the Administrator of the Alcoholic Beverages Division, 1918 S.E. Hulsizer, Ankeny, IA Unless otherwise ordered, each appealing party may file exceptions and briefs within thirty (30) days of the notice of appeal or order for review. Within thirty (30) days thereafter, any party may file a responsive brief. The Administrator may shorten or extend the briefing period as appropriate. The Administrator may resolve the appeal on the briefs or provide an opportunity for oral argument. 185 IAC 10.27(6). The administrator may affirm, reverse or modify the proposed decision. A party who is adversely affected by the proposed decision shall not be deemed to have exhausted administrative remedies unless the adversely affected party files a request for review of the proposed decision within the time provided and the Administrator has reviewed the proposed decision and has affirmed, reversed, or modified the proposed decision. Dated this 17 th day of July, Margaret LaMarche Administrative Law Judge Department of Inspections and Appeals Division of Administrative Hearings Wallace State Office Building-Third Floor Des Moines, Iowa 50319

5 Page 5 Lt. Douglas Mollenhauer ISP, District #1 260 N.W. 48 th Place Des Moines, Iowa City Clerk City Hall 230 Highway 6 Chief Larry Phillips Waukee Police Department 1300 L.A. Grant Pkwy, PO Box 757 Pat Neal IA Department of Revenue & Finance Hoover Bldg 1305 E. Walnut St. Des Moines, Iowa Karen Freund Licensing Manager Iowa Alcoholic Beverages Division 1918 SE Hulsizer Ankeny, Iowa Gary Sayre Chops Old, Inc. d/b/a Chops Old Bank th