State Office of Ad1ninistrative Hearings - TABC Home … Office of Ad1ninistrative Hearings May 24, 2016 ... application for a Wine and Beer Retailer's On-Premise Permit, ... 2015,

State Office of Ad1ninistrative Hearings

May 24 2016

Sherry Cook Administrator

Lesli G Ginn

Chief Administrative LaV Judge

Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 7873 l

VIA REGULAR MAIL

RE SOAH Docket No 458-16-1927 Texas Alcoholic Beverage Commission vs Ruth Van Der Plas dba Aqua World USA

Dear Ms Cook

Please find enclosed a Proposal for Decision in this case It contains my recommendation and underlying rationale

Exceptions and replies may be filed by any party in accordance with 1 TEX AD1IN

CODEsect 155507(c) a SOAH rule which may be found at wwwsoahstatetxus

Sincerely

Jeanette Green Administrative Law Judge

JGme Enclosure

Xe Edgar Korzeniowski Staff

Attorney Texas Alcoholic Beverag1 Commission 427 W 201 Street Suite 600 Houston Texas 77008-VIA REGULAR MAIL Bridget Bateman Attorney at Law 2 4 E College Athens l exas 757) - VIA R[GULAR MAIi

8700 N Stemmons Suite 1X L)illas Tcxa 75217 21-12-3260 (Mam) 2 l-962-366 (Fax)

www soallloas f_OV

DOCKET NO 458-16-1927

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Petitioner

v

RUTH E VAN DER PLAS DBA AQUA WORLD USA PERMIT NO BG90659

Respondent

HENDERSON COUNTY TEXAS (TABC CASE NO 635585)

sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARING

PROPOSAL FOR DECISION

The Staff of the Texas Alcoholic Beverage Commission (Petitioner) brought this

forfeiture action against Ruth E van der Plas (Respondent) 1 Petitioner seeks forfeiture of

Respondents conduct surety bond (CSB) Respondent filed the CSB in conjunction an

application for a Wine and Beer Retailers On-Premise Permit which was subsequently granted

by Petitioner as No BG906591 (Permit) for the premises Aqua World USA (Aqua World)

Petitioner canceled the Permit for cause effective September 2 2015 This proposal finds that

Respondent was not a principal ofa CSB permittee andor holder of the Permit on September

2 2015 therefore Respondent does not have a CSB Petitioner can forfeit

1 Respondent testified that her and her husbands surname is correctly spelled van der Plas however various documents including the style of this case misspelled both of their surnames (eg Van Der Plas Van De Plas Van der Plas Vandeplas andor Vanderp]as) The spelling of the surname and the identity of the parties were not at issue in this hearing therefore for purposes of this Proposal for Decision the spelling of the surname provided by Respondent will be used and applied to Respondent and her spouse

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

As jurisdiction and notice were not contested they are addressed in the Findings of Fact

and Conclusions of Law below

SOAH DOCKET NO 458-16-1927 PROPOSAL FOR DECISION Page 2

On March 4 2016 a hearing was convened before Administrative Law Judge Jeanette

Drescher Green with the State Office of Administrative Hearings (SOAH) at the Smith County

Courthouse Annex Building 200 E Ferguson l 51 Floor Tyler Texas 75702 Petitioner was

represented by Staff Attorney Edgar M Korzeniowski Respondent was represented by attorney

Bridget Bateman The hearing concluded on the same day Each party submitted written

arguments and the record closed on March 25 2016

II APPLICABLE LAW

Forfeiture of a conduct surety bond is governed by 16 Texas Administrative Code (TAC)

sect 3324 which provides in part that Petitioner may seek forfeiture of a bond required by Texas

Alcoholic Beverage Code (Code) sectsect 1111 and 6113 when a license or permit has been

cancelcd 2 Furthermore a licensee or permittee may request a hearing on the question of

whether the criteria established by Alcoholic Beverage Codesect 1111 andsect 6113 and by this

section for forfeiture of the bond have been satisfied3

16 Texas Administrative Code (TAC)sect 3324(a) and (1)

16 TACsect 3324(1)(2)

Petitioner Exhibit 2 at 5 Although form L-ON states that it is a five-page fonn Petitioner only offered the first page of the fonn into evidence

III EVIDENCE

A Petitioners Evidence

Petitioners Exhibit 2 contained portions of Respondents On-Premise Prequalification

Packet (Prequalification Packet) and Business Packet The Prequalification Packet filed on

Petitioners Form L-ON and received by Petitioner on March 25 2015 reflected Respondents

request for a BG Wine and Beer Retailers Permit for Aqua World as the individual owner and

applicant of the watersports business4 The Business Packet filed on Petitioners Form L-B also

showed Respondent as the individual owner and applicant for Aqua World The first page of

Form L-B contained questions and responses regarding both Respondent and her spouse and was

SOAH DOCKET NO 458-16-1927 PROPOSAL FOR DECISION Page3

not dated or file-stamped 5 Respondent signed an affidavit on April 6 2015 which stated

Respondent was the sole owner of Aqua World and that she was applying for a Wine and Beer

Retailers Permit only6

Respondent applied for a CSB through her insurance agent Lana Mock on April 27 2015

SureTec the surety on the CSB in the amount of $5000 assigned the CSB the number 5198727

which stated on its face that Respondent was the principal and holder of a Wine and Beer

Retailer Permit in Seven Points Henderson County Texas (Bond I) 7

On July 24 2015 Jacob Jacques van der Plas signed [amended] CSB number 5198727

(Bond 2) representing that he was the principal and holder of a Wine and Beer Retailer Pennit in

Seven Points Henderson County Texas 8 On July 30 2015 SureTec provided Petitioner with a

cover letter and rider to Bond 1 stating [i]n consideration of the premium charged it is

understood and agreed that effective July 30 2015 the bond shall be amended to reflect Updating

Principal name to Jacques Van der Plas The rider was signed by Ms Mock for SureTec and

Mr van der Plas for Aqua World

On August 24 2015 Petitioner initiated an investigation of Aqua World regarding an

employee who had allegedly been in an accident on August 23 2015 The investigator spoke to

Respondent who advised him that she was going through a divorce and Mr van der Plas was

running Aqua World per an agreement worked out by their attorneys She also stated that she

signed an Indemnity and Hold Harmless Agreement per the advice of her attorney pending the

divorce 9 The investigator found that the Respondent violated Code sect 1105 10 On September 2

5 Petitioner Exhibit 2 at 4 Petitioner did not offer into evidence the second page ofthe fonn or the referenced Form L-402 (personal history sheet) 6 Petitioner Exhibit 2 at 3

Petitioner Exhibit I at 7

Petitioner Exhibit 5 at 4 9

On August 19 2015 Respondent signed an Indemnity and Hold Harmless Agreement (Indemnity Agreement) with Mr van der Plas stating that Respondent would turn over an unidentified 1ABC Ucense in Respondents name doing business as Aqua World for placement at Aqua World I owever this case docs not involve a license 10 1 ex Alco Bev Code (Code) ~ 1105 states that No pennittee may consent to or allow the use or display of his permit by a person other than the person to whom the permit was issued


2015 the investigator advised Respondent that an administrative case for subterfuge would be

filed against her 11 On the same date Respondent signed a Settlement Agreement and Waiver

Agreement (Agreement) canceling the Permit as of September 2 2015 12 Respondent put her

initials on the Agreement after the statement set forth in the following type and style (tJhis

agreement may result in the forfiiture of any conduct surety bond I have on file 13 On

September 8 2015 a Waiver Order was signed by the Commissions Executive Director

adopting the Agreement and canceling the Permit as of September 2 2015 On October 8 2015

Respondent requested a hearing regarding the forfeiture l--1

Two separate affidavits from Petitionermiddot s custodian of records were admitted into

evidence Each affidavit indicated the Permit was issued to Ruth E van der Plas doing business

as Aqua World in Seven Points Henderson County Texas on May 4 2015 and was canceled on September 2 2015 middot The Permit was issued for the business Aqua World and listed

Respondents name under the name of the business located at 2001 E Cedar Creek Parkway

Seven Points Texas 75142 (premises) 16

Stephanie Moore testified on behalf of Petitioner and stated that the CSB had never been

released forfeited or a payment submitted in lieu of the CSB Ms Moore also stated that there

was no record that the Bond had been terminated or that the surety had been released

B Respondents Evidence

Respondent testified that she had been in business with Mr van der Plas since 2006 was

married to Mr van der Plas when they opened Aqua World at the premises in April 2015 and

then became estranged from him in May 2015 Respondent and Mr van der Plas agreed that Mr

11 Petitioner Exhibit 1 at 11


IJ Petitioner Exhibit 1 at 10

1~ Petitioner Exhibit 2 at 2

15 Petitioner Exhibits 1 and 2 at 1



van der Plas would run Aqua World and seek a new permit and Respondent would operate their

other business Respondent had physical custody of the Permit through the end of June 2015

when her nephew took the Permit from Respondent without her knowledge or consent and

placed it at Aqua World Respondent then requested Ms Mock to cancel her insurance and CSB

(Bond I) for Aqua World and signed a cancelation notice to that effect on July I 2015

Ms Mock subsequently notified Respondent that Bond I was transferred to Mr van der Plas

name by amendment on July 30 2015 (Bond 2) Respondent was not divorced from Mr van der

Plas as of September 2 2015 when the Agreement was signed

Respondent introduced several exhibits into evidence a Cancellation RequestPolicy

Release regarding a request to cancel SureTec insurance for Aqua World signed by Respondent

and Ms Mock on July I 2015 17 a July 6 2015 e-mail from Ms Mock to Respondent stating in

part that the middotsurety bond company had been notified that you arc no longer associated with

Aqua World and they have documented their files accordingly I believe that takes care of all

the loose ends from your standpoint Ruth 18 and the same documents in Petitioner Exhibit 4 at

2-5 19

IV ANALYSIS

The Code defines the terms that are relevant to this matter Applicant means a person

who submits or files an original application with the commission for a license or

pennit20 Permittee means a person who is the holder of a permit provided for in this code

or an agent servant or employee of that person21 Licensee means a person who is the

holder of a license provided in this code or an agent servant or employee of that person22

Person means a natural person or association of natural persons trustee receiver partnership

17 Respondent Exhibit I 18 Respondent Exhibit 3

19 Respondent Exhibit 2 211 Code sect 104 (9) 21 Codesect 104 (11) 12 Codesect 104(16)


corporation or the manager agent servant or employee of any of them23 Premises has the

meaning given it in Section 1149 of this code24 where middotpremises is defined as the grounds

and all buildings vehicles and appurtenances pertaining to the grounds including the adjacent

premises if they are directly or indirectly under the control of the same person25

A CSB is required as set forth in Code sect 1111 which states in part

(a) an applicant for a permit or a holder of a permit issued under (1) Chapter 25 26

of this code shall file with the commission a surety bond in the amount of $5000 conditioned on the applicants or holders conformance with alcoholic beverage law (b) [a] surety bond under this section shall contain the following statements on the face of the bond (I) that the holder of the permit will not violate a law (2) that the holder of the permit agrees that the amount of the bond shall be paid to the state if the permit is revoked 27

Furthermore 16 TAC sect 33 24 is applicable to this case

When a conduct surety bond is required under the Alcoholic Beverage Code it must be executed only on forms prescribed by this agency with the licensee or permittee as principal a qualified surety company doing business in this state as surety and the state as payee28

The forfeiture of a CSB is also covered under the above section It states

(I) [w]hen a license or permit is cancelled the commission shall notify the licensee or permittee in writing of its intent to seek forfeiture of the bond (2) [t]he licensee or permittee may request hearing on the question of whether the criteria established by Alcoholic Beverage Code sect 1111 and sect 6113 and by

2 Code sect104(6)

21 Codesect l04 (19) 2

Code sect 1149 2 Code ch 25 applies to Wine and Beer Retailers Permit (BG Penn) and is thus applicable

7 Code sect 1111 Also sec Code sect 2504 which states that provisions applying to the cancclation of a retail dealers

on-premise license (BE license) also apply to the cancelation ofa BG permit A CSB for a BE license issued under Code ch 69 is governed by Codesect 6113 Thus Codesect 613 which is almost identical to Codesect 111 l also applies to this case

~ l6TACsect3324(b)


this section for forfeiture of the bond have been satisfied29

The uncontradicted evidence showed that Respondent and Mr van der Plas were married

at the time they owned Aqua World and at the times the Permit was in effect Respondent and

Mr van der Plas thus ovmed Aqua World as a married couple and not as one of the specified

business entities named on Petitioners application Bond l reflects Respondent was both the

principal and holder of the [soon to be granted] Wine and Beer Retailer Permit The Permit was

issued May 4 2015 and was set to expire on May 3 2017 There was no evidence that the

location of the premises ever changed

Respondent became estranged from Mr van der Plas in May of 2015 and agreed at some

point to allow Mr van der Plas to run the business and seek the documents he needed to operate

Aqua World pending their divorce As such Mr van der Plas could be considered an agent for

Respondent and thus a pennittee

On July L 2015 Respondent requested cancclation of SureTecs insurance and Bond 1

on Aqua World through her agent Ms Mock On July 6 2015 Ms Mock notified Respondent

that SureTec was aware of her request On July 30 2015 Respondent received documents from

Ms Mock that Bond I had been amended by a rider and notice to Petitioner Ms Mocks notice

to Petitioner showed the principal of Bond I was amended by a rider to Mr van der Plas The

face of Bond 2 was also amended to show Mr van der Plas as the principal and holder of the

Permit The bond number on Bond I and Bond 2 were identical

Therefore on July 30 2015 per the face of the Bond 2 Respondent was no longer the

principal holder or permittee of Bond 2 which as an amendment replaced Bond 1 There was

no evidence that Petitioner rejected Bond 2 In fact there was no evidence that Bond 2 was not

in full force and effect as of July 30 2015 Petitioner provided evidence that the CSB (either

Bond 1 or Bond 2) was not middotterminated or released by Petitioner prior to the Agreement

Furthermore there was no evidence that SureTec as the surety notified the Commission that it

wished to cancel Bond 1 andor Bond 2 Accordingly Bond 2 was the only CSB in effect on

16 TAC 3324(1)


September 2 20 I 5 and Respondent was not a principal holder andor permittee on Bond 2

Thus the possible forfeiture of Bond I in which Respondent was once named as principal

holder andor permittee was moot as of September 2 2015 the effective date of the Agreement

because it had been amended and replaced by Bond 2 As such Petitioner failed to prove the

allegations in the Notice of Hearing Furthermore Petitioner failed to prove the criteria

established by 16 Texas Administrative Code sect 3324 applied to Respondent andor was

satisfied

V FINDINGS OF FACTS

1 Ruth E van der Pas (Respondent) applied to the Texas Alcoholic Beverage Commission (Commission) for a Wine and Beer Retailers Permit on April 27 2015 as an individual owner of Aqua World USA (Aqua World) located at 2001 E Cedar Creek Parkway Seven Points Texas 75142 in Henderson County Texas

2 Petitioner granted Respondents Wine and Beer Retailers On-Premise Permit BG90659l (Permit) which became effective on May 4 2015 with an expiration date of May 3 2017

3 Respondent was the applicant for Permit as defined in the Code

4 Respondent was married to Jacob Jacques van der Plas between April 2015 and September 2 2015

5 There was no evidence that either Respondent or Mr van der Plas owned Aqua World as a corporation limited liability company partnership limited partnership limited liability partnership trust joint venture citycountyuniversity or any other business entity listed on Plaintiffs application form

6 Respondent owned Aqua World with Mr van der Plas beteen April 2015 and September 2 2015

7 The Wine and Beer Retailer On-Premise Permit application process required Respondent to provide information about herself as well as certain information about her spouse which was provided

8 Respondent provided the Commission with a conduct surety bond (CSB) numbered 5198727 from SureTec Insurance Company (SureTec) dated April 27 2015 (Bond I) which identified Respondent as principal and holder of a Wine and Beer Retail Permit contingent on the Commissions approval

9 Bond 1 became effective upon the Commissions issuance of the Permit


10 The Permit issued to Respondent was for Aqua World located at the premises set forth in Finding of Fact No 1 which did not change during the time-period referenced in this proceeding

11 Respondent was the permittee for Aqua World from May 4 2015 until the end of June 2015

12 The Permit was taken from Respondents physical possession to Aqua World without Respondents consent in July 2015

13 The action in Finding of Fact No 12 caused Respondent to contact her insurance agent Laura Mock and request the cancelation of Respondents insurance on Aqua World and to take her name off of Bond las principal holder andor and permittee

14 On July 1 2015 at Respondents request Ms Mock filed an insurance cancclation request with SureTec regarding Aqua World as to Respondent only

15 On or before July 6 2015 Ms Mock notified Respondent that SurcTec received Respondents request to cancel Bond l as to Respondent only as well as liability insurance for Aqua World

16 Mr van der Plas signed the Commissions CSB form stating he was the principal ofthc conduct surety bond for Aqua World as of July 30 2015 and the holder of the Permit with the same number as Bond 1 (Bond 2)

17 On or about July 30 2015 Bond I was amended to Bond 2 by the rider and cover Jetter SureTec sent to Petitioner and the face of Bond 2 showed Mr van der Plas as the principal and holder of the Permit

18 SureTec amended Bond 1 to Bond 2 by naming Mr van der Plas as the principal and holder of the Permit on the face of the CSB with the same number from Bond I

19 My amending Bond 1 to Bond 2 on July 30 2015 SureTec kept a CSB in effect for Aqua World without cancelation termination revocation or suspension of the CSB

20 Ms Mock notified the Commission of the rider and amendment to Bond I by Jetter on July 30 2015 and Petitioner did not amend cancel reject or revoke Bond 2

21 There was no evidence the Commission was required to approve SureTecs rider or the amendment to Bond 1 which became Bond 2 the only CSB for Aqua World

22 Petitioner did not cancel suspend or revoke Bond I during the time-period Respondent was principal holder andor permittee on Bond I

23 There was no evidence that the Commission canceled terminated or revoked Bond 2


between July 30 2015 and September 2 2015

24 Bond I numbered 5198727 was replaced by amendment and became Bond 2 therefore Bond 1 was no longer in full force and effect on September 2 2015 and Respondent was no longer the principal holder andor permittee for Aqua World

25 Bond 2 also numbered 5198727 was in full force and effect on September 2 2015

26 The face of Bond 2 states that Mr van der Plas was principal and holder of the permit to Aqua World at the premises set forth in Finding of Fact No l

27 As a result of the Commissions investigation of an alleged incident regarding an employee of Aqua World on August 23 2015 the Commission notified Respondent of Petitioners allegation of subterfuge

28 Respondent signed the Commissions Settlement Agreement and Waiver (Agreement) on September 2 2015

29 The Permit for Aqua World was canceled pursuant to the Agreement Respondent signed on September 2 2016

30 Respondents Agreement specifically stated in the following text and style that fthis agreement mav result in the forfeiture o(any conduct surety bond I have on file

31 By Agreement Petitioner limited its ability to only forfeit the CSB Respondent had on file with Petitioner as of September 2 2015

32 On September 2 2015 Bond I which named Respondent as the principal and holder of the Permit was not on file with Petitioner

33 On September 2 2015 Bond 2 was on file vvith Petitioner but Respondent was not named as a principal holder andor permittee on the face of Bond 2

34 On September 8 2015 a Waiver Order was signed by the Commissions Executive Director adopting the Agreement and canceling the Permit as of September 2 2015

35 Bond I was not on file as a conduct surety bond filed with the Commission on September 2 2015 thus there is no conduct surety bond for the Commissions to forfeit per the Agreement

36 On October 8 2015 the Commissions Staff notified Respondent of its intent to seek forfeiture of Respondents CSB based on the Commissions canceiation of the Permit

37 Respondent requested a hearing to determine whether the CSB should be forfeited

38 The Notice of Hearing informed Respondent of the time date and location of the

SOAII DOCKET NO 458-16-1927 PROPOSAL FOR DECISION Page t I

hearing the legal authority and jurisdiction under which the hearing was to be held the particular sections of the statutes and rules involved and the allegations asserted

39 The hearing convened on March 4 2016 before the State Office of Administrative Hearings (SOAH) Administrative Law Judge Jeanette Drescher Green Edgar M Korzeniowski Staff attorney represented Petitioner Respondent was represented by attorney Bridget Bateman The record closed on March 25 2016

40 The Notice of Hearing only applied to Respondent not to Respondents spouse thus Bond 2 cannot be forfeited

VI CONCLUSIONS OF LAW

I The Commission has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) ch 5

2 SOAH has jurisdiction to conduct the administrative hearing in this matter and to issue a proposal for decision containing proposed findings of fact and conclusion of law pursuant to Texas Government Code ch 2003

3 Proper and timely notice of the hearing was provided to Respondent but not to Mr van der Plas as required by the Administrative Procedure Act Texas Government Code sectsect 2001051-052

4 Respondent is applicant for a Wine and Beer On-Premise Retail Permit BG906591 (Permit) for Aqua World USA (Aqua World) dated April 27 2015 which is governed by Code ch 25

5 The conduct surety bond in effect on May 4 2015 (Bond I) was amended on July 30 2015 removing Respondent as principal holder of the Permit andor permittee of the Permit for Aqua World and naming Mr van der Pas on the face of the conduct surety bond as principal and holder of the Permit

6 The Commission requires either the applicant or holder of the Permit issued pursuant to Code ch 25 to file a conduct surety bond in the amount of$5000

7 The face of the SureTec conduct surety bond number 5198727 regarding Aqua World which was in effect on or after July 30 2015 (Bond 2) clearly shows Mr van der Plas as the principal holder of the Permit andor pennittee for Aqua World

8 Staff failed to prove that that all of the criteria established by Code sectsect 1111 and 6113 by 16 Texas Administrative Code 3324 was satisfied as to Respondent

9 Bond I ceased to be in effect as of July 30 2015


10 Respondent does not have a surety bond for Petitioner to forfeit

11 Mr van der Plas was not included in the Notice of Hearing and thus Bond 2 cannot be forfeited at this time

SIGNED May 24 2016

Jp1~1yJ~_ ~ DnbullsclllT (lrcn d mini ~trnti middotc Ia I udg Stall (lffitc oi dminitrati~ I earing~

DOCKET NO 635585

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591

HENDERSON COUNTY TEXAS

(SOAH DOCKET NO 458-16-1927)

BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER

CAME ON FOR CONSIDERATION this 31st day of March 2017 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge (ALJ) Jeanette Drescher Green presiding

The hearing on the merits convened on March 4 2016 and the SOAH record closed on March

25 2016 The Administrative Law Judge issued a Proposal for Decision containing Findings of

Fact and Conclusions of Law on May 24 2016 The Proposal for Decision was properly served

on all parties and the parties were given an opportunity to file exceptions and replies as part of

the record herein Petitioner filed exceptions to the Proposal for Decision on May 25 2016 The

ALJ filed a Response to Petitionerrsquos Exceptions on June 29 2016

After review and due consideration of the Proposal for Decision Petitionerrsquos Exceptions

to the Proposal for Decision and the ALJrsquos Response to Petitionerrsquos Exceptions I adopt the

Findings of Fact and Conclusions of Law of the Administrative Law Judge that are contained in

the May 24 2016 Proposal for Decision as modified in the ALJs June 29 2016 letter and

incorporate those Findings of Fact and Conclusions of Law into this Order as if such were fully

set out and separately stated herein Specifically the modifications to the May 24 2016

Proposal for Decision that were made by the ALJ in the June 29 2016 letter and adopted

herein are 1 Delete Finding of Fact No 11

2 Amend Finding of Fact No 12 to read

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________

The permit was taken from Respondents physical possession to Aqua World

without Respondents consent in June 2015


Bond 1 numbered 5198727 was replaced by amendment and became Bond 2

therefore Bond 1 was no longer in full force and effect on September 2 2015


The Notice of Hearing specifically stated that Respondents CSB was subject to

forfeiture and that the cancelation of Respondents permit on September 2 2015

subjected Respondents CSB to forfeiture therefore Bond 2 is not subject to

forfeiture in this hearing as neither Respondent nor Mr Van der Plas was placed

on proper notice that Petitioner was seeking the forfeiture of a CSB in Mr Van

der Plas name or that was related to Aqua World

5 Amend Conclusion of Law No 5 to read

Bond 1 which became effective on May 4 2015 was amended by a rider which

replaced Respondents name on Bond 1 with Mr Van der Plas name and by the

filing of Bond 2 with Petitioner on or about July 30 2015 thus the face of CSB

No 5298727 or Bond 2 which was in effect on September 2 2015 identified Mr

Van der Plas not Respondent as the principal holder of the permit and permittee

for the CSB for Aqua World

THEREFORE IT IS ORDERED that NO ACTION be taken based on this hearing

This Order will become final and enforceable on the 26th day of April 2017 unless a

Motion for Rehearing is filed by the 25th day of April 2017

SIGNED this the 31st day of March 2017 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 31st day of March 2017

Page 2 of 3

__________________________________________

Martin Wilson Assistant General Counsel


Jeanette Drescher Green

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

8700 N Stemmons Suite 126

Dallas TX 75247

VIA FACSIMILE (512)322-2061

Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave

Gun Barrel City TX 75156-4200

VIA FIRST CLASS MAIL CMRRR 9171082133393794385105

Bridget Bateman

ATTORNEY FOR RESPONDENT

214 E College

Athens TX 75751


Edgar Korzeniowski

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAIL edgarkorzeniowskitabctexasgov

Page 3 of 3

DOCKET NO 458-16-1927

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Petitioner

v

RUTH E VAN DER PLAS DBA AQUA WORLD USA PERMIT NO BG90659

Respondent

HENDERSON COUNTY TEXAS (TABC CASE NO 635585)

sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARING

PROPOSAL FOR DECISION

The Staff of the Texas Alcoholic Beverage Commission (Petitioner) brought this

forfeiture action against Ruth E van der Plas (Respondent) 1 Petitioner seeks forfeiture of

Respondents conduct surety bond (CSB) Respondent filed the CSB in conjunction an

application for a Wine and Beer Retailers On-Premise Permit which was subsequently granted

by Petitioner as No BG906591 (Permit) for the premises Aqua World USA (Aqua World)

Petitioner canceled the Permit for cause effective September 2 2015 This proposal finds that

Respondent was not a principal ofa CSB permittee andor holder of the Permit on September

2 2015 therefore Respondent does not have a CSB Petitioner can forfeit

1 Respondent testified that her and her husbands surname is correctly spelled van der Plas however various documents including the style of this case misspelled both of their surnames (eg Van Der Plas Van De Plas Van der Plas Vandeplas andor Vanderp]as) The spelling of the surname and the identity of the parties were not at issue in this hearing therefore for purposes of this Proposal for Decision the spelling of the surname provided by Respondent will be used and applied to Respondent and her spouse

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

As jurisdiction and notice were not contested they are addressed in the Findings of Fact

and Conclusions of Law below








II APPLICABLE LAW








16 TACsect 3324(1)(2)


III EVIDENCE












































































2-5 19

IV ANALYSIS





















2 Code sect104(6)





~ l6TACsect3324(b)




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3








II APPLICABLE LAW








16 TACsect 3324(1)(2)


III EVIDENCE












































































2-5 19

IV ANALYSIS





















2 Code sect104(6)





~ l6TACsect3324(b)




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3




































































2-5 19

IV ANALYSIS





















2 Code sect104(6)





~ l6TACsect3324(b)




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3











































2-5 19

IV ANALYSIS





















2 Code sect104(6)





~ l6TACsect3324(b)




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3
















2-5 19

IV ANALYSIS





















2 Code sect104(6)





~ l6TACsect3324(b)




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3













2 Code sect104(6)





~ l6TACsect3324(b)




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3




























16 TAC 3324(1)








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3








satisfied

V FINDINGS OF FACTS



























































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3


















































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3



































SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3


















SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3




SIGNED May 24 2016


DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3

DOCKET NO 635585



VS

RUTH E VAN DER PLAS

DBA AQUA WORLD USA

Respondent

PERMIT BG906591



BEFORE THE TEXAS

ALCOHOLIC

BEVERAGE COMMISSION

ORDER


and numbered cause


















sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3

_________________________________________





























Page 2 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3

__________________________________________







Dallas TX 75247


Ruth Van Der Plas

dba Aqua World USA

RESPONDENT

141 A Dunaway Ave



Bridget Bateman


214 E College

Athens TX 75751


Edgar Korzeniowski


TABC Legal Division


Page 3 of 3

Documents

State Office of Ad1ninistrative Hearings - TABC Home … Office of Ad1ninistrative Hearings May 24, 2016 ... application for a Wine and Beer Retailer's On-Premise Permit, ... 2015,