NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

PITT COUNTY 03 ABC 0233

______

NC ALCOHOLIC BEVERAGE )

CONTROL COMMISSION, )

Petitioner, )

) DECISION GRANTING

) INVOLUNTARY DISMISSAL

vs. )

)

PANTANA BOB’S, INC., )

T/A PANTANA BOB’S, )

Respondent. )

______

This contested case was heard before the undersigned Administrative Law Judge Julian Mann, III, on August 20, 2003, in Raleigh, North Carolina. At the end of Petitioner’s evidence, Respondent moved for Directed Verdict, which was converted to a Motion for Involuntary Dismissal under Rule 41(b) of the NC Rules of Civil Procedure, and that Motion was allowed.

APPEARANCES

PETITIONER: Lorita K. Pinnix

Assistant Counsel, NC ABC Commission

RESPONDENT: William H. Potter, Jr.

Sink & Potter, L.L.P.

ISSUE

Did Petitioner present competent and material evidence of the primary elements of the charged violation of 4 NCAC 02S .0233(a) and did the elements in fact occur [did Permittee’s employee knowingly allow a person under the age of 21 to possess (and) consume an alcoholic beverage on the licensed premises]?

From the Petition, the Stipulations of the Parties, the conduct of the August 20, 2003, hearing, and the testimonial evidence presented by Petitioner at hearing, the undersigned makes the following:

FINDINGS OF FACT

1. Respondent operates a business that holds ABC Permits in Greenville, North Carolina.

2. The Petition alleges two violations of ABC Commission Regulations.

3. The second alleged violation [of 4 NCAC 025 .0233(b)] was dismissed by Stipulation of Petitioner, because of lack of evidence.

4. The remaining alleged violation, as set out in Petitioner ABC Commission’s formal Notice of Alleged Violation (incorporated into the Petition), reads as follows:

“permittee’s employee, Chris Laggis, knowingly allowed Ray Hopkins, Jr., a person less than 21 years old, to possess and/or consume an alcoholic beverage upon the licensed premises, on or about August 24, 2003, at 11:44 p.m. in violation of ABC Commission Rule 4 NCAC 025 .0233(a).”

[On Respondent’s oral Motion to Compel an Election, Petitioner stipulated that the charge is “possess and consume”.]

5. The cited regulation reads as follows:

A.0233 CONSUMPTION BY UNDERAGE PERSONS

“(a) Consumption by Persons Under Age. No permittee or his employee shall knowingly allow a person under the age of 21 to possess or consume any alcoholic beverage on the licensed premises.”

6. Ray Hopkins, Jr. was on the licensed premises on August 24, 2002, and he was less than 21 years old on that date.

7. Hopkins possessed and consumed a “tan colored liquid” from a “clear plastic cup” in an interior room of the business premises on the night in question; Mr. Hopkins testified that “I believe” the liquid may have contained “vodka”, but that “I’m not sure.” Petitioner did not present any other direct evidence that there was, in fact, any amount or type of alcohol in the cup.

8. Chris Laggis, an employee of Respondent and an acquaintance of Mr. Hopkins, allowed Mr. Hopkins to obtain an orange wristband (indicating the wearer is 21) when he entered the business premises.

9. Mr. Hopkins knew Mr. Laggis from playing on the same community college baseball team and that Mr. Laggis may have been familiar with Mr. Hopkins’ age “to a point”; freshmen and sophomores are usually 18 to 20 years old, but some players are older, maybe 22 or 23; and he never told Mr. Leggis his age or showed him his ID. Petitioner did not present any direct evidence that Mr. Leggis had any actual information or knowledge that Mr. Hopkins was less than 21 years old.

10. Mr. Laggis was at the entrance of the business premises on the night in question, at a position where he could not see Mr. Hopkins in the room where he held and consumed the tan liquid from a cup. Petitioner did not present any evidence that Mr. Laggis saw Mr. Hopkins after he left the front entrance, or any direct evidence that Mr. Laggis had any actual information or knowledge that Mr. Hopkins possessed or consumed an alcoholic beverage, or any kind of beverage.

11. Terms are defined in statutory law concerning alcoholic beverage permits, in G.S. 18B-101. Definitions, as follows:

* * * * * *

(4) “Alcoholic beverage” means any beverage containing at least one-half of one percent (0.5%) alcohol by volume, including malt beverages, unfortified wine, fortified wine, spirituous liquor, and mixed beverages.

* * * * * *

(10) “Mixed beverage” means . . .

a. A drink composed in whole or in part of spirituous liquor . . . .”

12. Other than the qualified and uncertain reference to vodka as perhaps being in the liquid in Mr. Hopkins cup, Petitioner did not offer any evidence that the liquid in question contained any spirituous liquor or met the definition of an alcoholic beverage; Petitioner presented no evidence of a chemical analysis, odor of alcohol, taste of alcohol, or other evidence to establish the content of this beverage.

Based on the Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1) In cases without a jury, after the party with the burden of proof has completed the presentation of its evidence, the responding party may move for dismissal on the grounds that on the facts and the law there has been no showing of a right to relief. See Rule 41. Dismissal of Actions, subsection (b), NC Rules of Civil Procedure.

2) Under Rule 41(b), the presiding administrative law judge can give judgment against Plaintiff not only because his proof has failed in some essential aspect to make out a case, but also on the basis of facts as he may then determine them to be from the evidence before him. Helms v. Rea, 282 NC 610, 194 SE 2d 1 (1973) and Fearing v. Westcott, 18 NC App 422, 197 SE 2d 38 (1973).

3) Petitioner’s evidence was insufficient to be the basis of any finding that Respondent Permittee’s employee, Mr. Laggis, knew that Mr. Hopkins was less than 21 years old on August 24, 2002.

4) Consequently, there is no basis for any finding that an employee knowingly allowed possession and consumption by an underage Mr. Hopkins.

5) Petitioner’s evidence was insufficient to be the basis of any finding that Mr. Hopkins in fact possessed and consumed an alcoholic beverage.

6) Petitioner’s evidence was insufficient to be the basis of any finding that Permittee’s employee Mr. Laggis knew that Mr. Hopkins possessed and consumed an alcoholic beverage on Respondent’s premises on August 24, 2002.

7) Consequently, there is no basis for any finding of knowingly allowed possession and consumption of any alcoholic beverage.

8) Petitioner has failed to establish the existence of three necessary elements of the cited regulation and charged violation; there has not been any showing of alcoholic beverage, not any showing of knowledge of or allowing possession and consumption of alcoholic beverages, and not any showing of knowledge of or allowing possession and consumption by underage.

9) Both charges against Respondent in the Petition should be dismissed.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned dismisses both alleged charges against Respondent.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 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 of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina ABC Commission.

This the 3rd day of October, 2003.

______

Julian Mann, III

Chief Administrative Law Judge

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