BOARD OF LICENSE COMMISSIONERS FOR MONTGOMERY COUNTY Tae Hyung Kim Licensee RESOLUTION 10-29 Proceedings On March 4, 2010, the Board of License Commissioners for Montgomery County (the Board) held a hearing to show cause why the Beer, Wine and Liquor license, Class B, Hotel/Restaurant, On Sale Only, issued to Tae Hyung Kim, for the premises known as Red Rock Cafe, located at 385 Muddy Branch Road, Gaithersburg, Maryland, should not be suspended or revoked, or why other sanctions permitted by law, including but not limited to fines and penalties, should not be imposed for alleged violations of the Rules and Regulations of the Board of License Commissioners, as stated in a letter dated February 16, 2010. In the letter dated February 16, 2010, it was alleged that on January 8, 2010, certain alcoholic beverages were found on the licensed premises which were not purchased by this licensee from the Montgomery County Department of Liquor Control (DLC), in violation of Chapter 6, Prohibited Practices, Section 6.9, ‘Storage, of the Board's Rules and Regulations. In the letter dated February 16, 2010, it was further alleged that on January 8, 2009, there were incomplete records (invoices) available for inspection when requested of all alcohol purchases in violation of the Rules and Regulations of the Board of License Commissioners, Chapter 5, Standards of Operations, Section 5.5(a) Records ~ Alcoholic Beverage Purchases. Brian Kim was sworn in as interpreter for the licensee who spoke Korean. At the outset of the proceeding, the licensee denied that on January 8, 2010, there were certain alcoholic beverages on the licensed premises which were not purchased from the Montgomery County Department of Liquor Control. The licensee also denied that on January 8, 2010, there were incomplete records (invoices) on the licensed premises. The applicable sections of the Rules and Regulations of the Board of License Commissioners — Section 6.9, Storage (a), (b), and (c), and Section 5.5, Records (a) were translated by the Interpreter for the licensee.‘The Board then held a disposition hearing to review the applicable facts and determine the appropriate sanctions. During the course of the hearing, the Board received testimony and documentary evidence from witnesses including the licensure file and inspection reports. Evidence Presented The Board received the following evidence: Lee Williams, Alcohol/Tobacco Enforcement Specialist: Inspector Williams introduced the case as originating from a monthly inspection conducted at Red Rock Café on Friday, January 8, 2010 by himself and Inspector Carlos Grajeda, and involving a violation of Section 6.9, Storage and a violation of Section 5.5 Records of the Board’s Rules and Regulations. Inspector Williams testified that he went to Red Rock Café on December 11, 2009, to conduct a final compliance inspection prior to the issuance of the license, At that time, the licensee did not have the required permits (Use and Occupancy certificate, sales & use tax number, and food service permit) and Inspector Williams spoke to Mr. Tae Hyung Kim, the licensee, and told Mr. Kim what he needed to get before he could be issued the liquor license. Inspector Williams stated that because there was no Use and Occupancy certificate on the premises Inspector Williams called the City of Gaithersburg from the facility and found the correct person for Mr. Tae Kim to speak with about obtaining that certificate. Inspector Williams further stated that he advised Mr. Tae Kim at that time that, under Maryland Law, there is a 60-day limit to transfer alcohol from an old business to a new business, Because the facility had been closed since May 2009 and this was December 2009, the 60-day period had passed and Inspector Williams stated that he told Mr. Tae Kim that all alcohol from the previous business that remained at the facility would have to be disposed of and could not be used in the new business. Inspector Williams further testified that, on December 22, 2009, he returned to Red Rock Café and found that the facility had the required permits. At that time, Inspector Williams spoke with Mr. Tae Kim’s wife and daughter since Mr. Tae Kim was not at the facility. Inspector Williams further stated that, on December 22, 2009, there was still a good amount of alcohol on the premises. He stated that he spoke on the phone from the facility with a woman named Grace and asked her about the alcohol that was left and Grace told him it was gone. Inspector Williams stated that he told Grace it was not gone, that it was right in front of him. He further stated that there were young men at the facility who started moving the alcohol out of the building. Inspector Williamsstated that he completed a Final Compliance Inspection Report for Red Rock Café; he entered a copy into evidence as Exhibit A. Inspector Williams stated that, on the Final Compliance Inspection Report dated December 22, 2009 (Exhibit A), he wrote in the Comments section: “All alcohol (beer, wine, liquor) must be removed and cannot be re-used in the facility — Licensee advised that if previous alcohol is brought back into facility, fine is $200/bottle.” He also stated that he wrote “Alcohol invoices must be available for inspection at all times.” Inspector Williams further testified that, on January 8, 2010, at approximately 6 p.m., he went to Red Rock Café to conduct their first monthly inspection. He stated that he was accompanied by Inspector Grajeda. He spoke with Mr. Tae Kim on that occasion and asked for the invoices. Inspector Williams stated that Mr. Tae Kim did not have any invoices from purchases from the DLC warehouse but that he did have invoices from a DLC retail store. Inspector Williams further stated that when he started to examine the beer in the cooler, he immediately noticed the Budweiser beer had a manufacturing date of 3/25/09. He stated that he asked Mr. Kim, the licensee, if this was from the stock of the previous owner and Mr. Kim agreed that it was. Inspector Williams stated that Inspector Grajeda examined the date codes on the Heineken and Corona beer at the facility. Meanwhile, Inspector Williams reviewed the DLC retail store receipts for this licensee and found that there were no receipts for one 1.5 liter bottle of Jack Daniels Whiskey, one 1.0 liter bottle of Dekuyper Sloe Gin, one 1.5 liter bottle of Gallo Chardonnay wine, one 1.5 liter bottle of Gallo Cabernet wine, one 1.0 liter bottle of Grand Marnier liquor, and two 75 ml bottles of Jagermelster,. Inspector Williams showed the Board these bottles at the hearing. He further stated that he then confiscated these seven bottles of alcohol and 120 bottles (5 cases) of three brands of beer (24 bottles of Bud Lite, 66 bottles of Heineken, and 30 bottles of Corona) and told licensee Tae Kim that he needed to keep all invoices on the premises. Inspector Williams further testified that, on Monday, January 11, 2010, he went to the Muddy Branch DLC store when licensee Tae Kim purchases alcohol to attempt to find receipts for the items he had confiscated. The only receipts the store had for this licensee were the same ones Inspector Williams had seen at the facility; there were no additional receipts. Inspector Williams introduced into evidence a picture of the confiscated products as Exhibit B and a picture of the beer in the cooler as Exhibit C. In response to questions from the Board, Inspector Williams stated that he did not know if this alcohol can be traced to the past owner but that state lawprohibits the transfer of the alcohol. He further stated that the previous owners of Red Rock Café closed abruptly just after renewal time in May 2009, and this licensee started in business in December 2009. Carlos Grajeda, Alcohol/Tobacco Enforcement Specialist: Inspector Grajeda testified that he supports the testimony of Inspector Williams. He stated that in regards to Inspector Williams’ testimony that he (Inspector Grajeda) was investigating the Corona and Heineken beer code dates, Inspector Grajeda explained he found these beers were stale, out of code, and expired. Inspector Grajeda stated that he asked licensee Kim why he would have expired beer in the facility and Tae Kim told him that he purchased all his alcohol from the County. Inspector Grajeda noted that he found it strange that Montgomery County DLC would deliver stale or expired beer to an establishment. He went to a female employee in Red Rock Cafe and asked her whether the alcohol was from the previous owners. Licensee Kim then thought about it and admitted to Inspector Grajeda that some of the alcohol did come from the previous owner of the facility. Inspector Grajeda stated that he thanked licensee Kim for his honesty and asked him to point out the alcohol that was from the previous owner. At this point, licensee Kim identified the beer that had been in the cooler in the back rear as being from the previous owner; this beer was then confiscated. Inspector Grajeda stated that he used the assistance of a bilingual employee during this conversation to ensure licensee Kim understood what he was asking him. Inspector Grajeda further stated that there were some other bottles of alcohol that did not have invoices and licensee Kim said he would try to get the invoices for the inspectors. Based on follow-up conversations with Inspector Williams, Inspector Grajeda stated that he does not believe that Tae Kim ever provided the invoices. Lee Williams, Alcohol/Tobacco Enforcement Specialist: Inspector Williams clarified that this was a new license, not a transfer license. The product that was confiscated included 24 bottles of Bud Lite beer, 66 bottles of Heineken beer, 30 bottle of Corona beer, and seven bottles of liquor. Tae Hyung Kim, licensee: Mr. Tae Kim informed the Board that he has moved to a new address one month ago: 401 Westside Drive, Apt. 402, Gaithersburg, Maryland 20878.