STATE OF NORTH CAROLINA
COUNTY OF FORSYTH / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
10 ABC 3716
NC Alcoholic Beverage Control Commission,
Petitioner,
v.
AMR Bowling Centers, Inc.
T/A AMF Winston-Salem Lanes 123,
Respondent. / )
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) DECISION
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This contested case was heard before J. Randall May, Administrative Law Judge, in the Office of Administrative Hearings, on January 27, 2011, in High Point, North Carolina.

APPEARANCES

Petitioner:K. Renee Cowick

Assistant Counsel

NC ABC Commission

Raleigh, NC

Respondent:Joshua H. Bennett

Bennett & Guthrie, PLLC

Winston-Salem, NC

ISSUES

  1. Whether Respondent’s employee, John Belk, servedmixed beverages to Joshua Burns, a person less than 21 years old, while on the licensed premises, on or about May 5-6, 2009 in violation of NCGS §18B-302(a1)(2)?
  1. Whether Respondent has a valid defense to the service of mixed beverages to Joshua Burns pursuant to NCGS §18B-302(d), in that the alcohol wristband worn by Burns at the time of service was a fact that reasonably indicated that he was at least of the required age?

FINDINGS OF FACT

The undersigned Administrative Law Judge finds the following facts:

1.Respondent holds permanent Malt Beverage and Unfortified wine ABC permits at a business known as AMF Winston-Salem Lanes located at 811 Jonestown Road, North Carolina27103.

2.Respondent has held those ABC permits since November 1996. During that time, Respondent has never received any citation or other reprimand for any violation of those permits.

3.As the time of the incident complained of, Respondent had employed John Belk (“Belk”)as a bartender for approximately one year.

4.Prior to his hiring, Belk attended and graduated from the Professional Bartending Institute in Greensboro, North Carolina, where he completed the alcohol safety course work.

5.Once hired by the Respondent, the Respondent required to Belk complete the Training for Intervention Procedures (TIPS training), which reinforced the training he had completed at the Professional Bartending Institute and emphasized the prevention of underage drinking.Belk completed the TIPS training.

6.On the night of May 5-6 2009, Respondent was using a system of “alcohol wristbands” to identify patrons who couldlegally purchase and consume alcohol. Under that system, after a patron showed a bartender or waiter his or her identification card showing that he or she was at least 21 years old, that patron would be issued an “alcohol wristband.” Thereafter, a patron wearing an alcohol wristband was not required by AMF to show identification before purchasing alcohol.

7.At the hearing of this matter, the Respondent called as a witness Sue Wyrick (“Wyrick”), the owner and director of the Professional Bartending Institute previously attended by Belk. (Transcript p. 9, ln17-25). Wyrick was the only witness called by either party.

8.Wyrick testified that she has an extensive employment history in the bartending profession and in the training of bartenders in particular. This training includes alcohol safety work such as recognizing and preventing underage drinking.

9.Wyrick also testified specifically that through her work experience she was familiar with methods of preventing underage drinking, including alcohol wristband systems such as that utilized by the Respondent. (Transcript p. 15, ln 4-18).

10.After her testimony regarding her work experience, this Court admitted Wyrick to testify as an expert on identification of underage drinkers. (Transcript p. 19, ln 23-25).

11.Wyrick was questioned by both Respondent’s counsel and by Petitioner’s counsel regarding whether or not alcohol wristband systems such as that utilized by the Respondent were used by establishments throughout the State to prevent underage drinking. She testified that such systems were widely and commonly used.(Transcript p. 25, ln 7-13).

12.Wyrick was questioned by Respondent’s counsel regarding whether or not alcohol wristband systems such as that utilized by the Respondent were acceptable methods to prevent underage drinking. She testified that such systems were reasonable and acceptable. (Transcript p. 22, ln 2-8)

13.Wyrick further testified that in her experience it would be reasonable for a server not to check a patron’s photo identification, as long as that patron was wearing an alcohol wristband, because that wristband would be reasonable evidence that that patron’s age had already been verified. (Transcript p. 22, ln 9-22)

14.Wyrick was further questioned by Respondent’s counsel regarding whether or not the specific alcohol wristband systemutilized by the Respondent’s system was an acceptable methods to prevent underage drinking. She testified that the Respondent’s system was reasonable and acceptable.

15.Wyrick testified that it was reasonable for Belk to believe that Joshua Burns was of age and to serve him, given that he was wearing an alcohol wristband. (Transcript p. 23-24, ln 21-25, 1-2).

16.Wyrick’s specifically testified that there is no age verification system in existence of which she is aware that is perfect and unbeatable. (Transcript p. 24, ln 3-7).

17.Under cross examination by Petitioner’s counsel, Wyrick maintained that the Respondent’s system was an acceptable method to prevent underage drinking. (Transcript p. 25, ln 14-25).

18.Under cross-examination, Wyrick further testified that nowhere in either the statutory or ABC Guidelines is there any language that prohibits the use of an alcohol wristband system for age verification. (Transcript p. 27, ln 1-4). Further, she testified that since the incident in question in this matter, the ABC Commission has not updated its Guidebook to prohibit the use of alcohol wristband systems for age verification. (Transcript p. 27, ln 19-24).

19.The Petitioner called no expert witness and presented no evidence to respond to or refute any of Wyrick’s opinion testimony.

20.On the night of May 5-6, 2009, Joshua Burns (“Burns”) visited Respondent’s establishment with Travis Carroll (“Carroll”).

21.Burn’s date of birth is November 17, 1988, making him 20 years of age on May 5-6, 2009.

22.During that evening, Carroll presented Belk with military photo identification and Carroll was thereafter issued an alcohol wristband by Belk in accordance with the Respondent’s alcohol wristband policy.

23.Shortly thereafter, Burns and Carroll twice entered the restroom together in a very short time. The second time they left the restroom, Carroll no longer wore his alcohol wristband, while Burns now wore Carroll’s alcohol wristband, which had been given to him by Carroll while they were in the restroom.

24.Later in the evening, Burns was served several alcoholic beverages by Belk. None of Respondent’s employees had checked Burns’ identification.

25.On each occasion that he was served alcoholic beverages by Belk, Burns was visibly wearing the alcohol wristband that he had obtained from Carroll.

26.It is undisputed that at no time did Belk or any other of Respondent’s employees have actual knowledge that Burns was under 21 years of age.

27.North Carolina General Statute §18B-302(a1) states that “It shall be unlawful for any person to: (2)Givefortified wine, spirituous liquor, or mixed beverages to anyone less than 21 years old; . . .” NCGS §18B-302 is a criminal law statute, with criminal law sanctions imposed for violations of its terms and conditions.

28.North Carolina General Statute §18B-302(d) states that “It shall be a defense to a violation of subsection (a) of this section if the seller: (2) produces evidence of other facts that reasonably indicated at the time of sale that the purchaser was at least the required age.”

29.North Carolina General Statute §18B-302 is made applicable to Respondent, a retail establishment selling alcohol through a valid permit issue by Petitioner, through Article 10 of Chapter 18B, entitled Retail Activity; more particularly §18B-1005(a) which states “It shall be unlawful for a permittee or his agent or employee to knowingly allow any of the following kinds of conduct to occur on his licensed premises: (1) Any violation of this Chapter; . . .” (emphasis added).

30.North Carolina General Statute §18B-1005 requires “knowledge” by the permittee. “Knowledge means ‘an impression of the mind, the state of being aware; . . . Generally speaking, when it is said a person has knowledge of a given condition, it is meant that his relation to it, his association with it, his control over it and his direction of it are such as to give him actual information concerning it.’” Underwood v. State Board of Alcoholic Control, 278 N.C. 623, 181 S.E.2d 1 (1971). This requirement of knowledge, of awareness, does not allow for a permittee becoming willfully blind to events of which he is aware.

31.Underwood was decided under thestatutory authority that was predecessor to Chapter 18B, which likewise had the requirement of “knowledge”.The Court recognizes the authority of the Board (now Commission) to revoke or suspend the permit of a licensee for any violation of the law or controlling regulations.The Supreme Court goes further to state in Underwoodthat the licensee was making “a reasonable effort in good faith” to comply with the laws and regulations.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following Conclusions of Law:

1.The Office of Administrative Hearings has jurisdiction in this matter.

  1. On or about May 5-6, 2009, Respondent’s employee, John Belk, gavemixed beverages to Joshua Burns, a person less than 21 years old, while on the licensed premises, in violation of N.C.G.S. §18B-302(a1)(2).
  1. The purchaser, Burns, was wearing an alcohol wristband – fraudulently obtained[1] from Carroll but without the knowledge of the Respondent – which the Respondent argues reasonably indicated at the time of service that Burns was at least the required age, in accordance with N.C.G.S. §18B-302(d)(2).
  1. At the hearing of this matter, the Respondent presented two prior decisions from the Office of Administrative Hearings, N.C. ABC Commission v. PSJL, Inc., 04 ABC 0942 and N.C. ABC Commission v. Benita, Inc., 07 ABC 1584. Both of the prior decisions support the proposition that to prove a violation of N.C.G.S. § 18B-302, the Petitioner must first show that the Respondent had actual knowledge of or was willfully blind to the fact that the patron served was not of the required age, per N.C.G.S. § 18B-1005.Both of these cases further support the proposition that asking a patron for photo identification is not required to avoid being “willfully blind” to that patron’s age.
  1. Per the legal analysis contained in the cases presented by the Respondent, N.C.G.S. §18B-302 is made applicable to Respondent, a retail permittee, by N.C.G.S. §18B-1005. N.C.G.S. §18B-1005 requires knowledge by the permit holder or his agent or employee of the violation of N.C.G.S. § 18B-302. Willful blindness of matters of which he is aware is not sufficient. Willful blindness requires a showing that the permit holder “deliberately close[d] its eyes to what would otherwise have been obvious.” N.C. ABC Commission v. PSJL, Inc., 04 ABC 0942, ¶ 6.
  1. Respondent has presented factual evidence that it has made all diligent, reasonable good faith efforts to comply with the requirements of N.C.G.S. § 18B-302 and regulations promulgated pursuant thereto, including but limited to:
  1. Employing John Belk, who had undergone alcohol safety training which including training on preventing underage drinking, as a bartender.
  1. Requiring all of its bartenders, including John Belk, to complete Training for Intervention Procedures (TIPS training), which emphasizes the prevention of underage drinking.
  1. Utilizing an alcohol wristband system for identifying which patrons are of age to consume alcohol and thereby prevent underage drinking.
  1. Respondent has also presented expert evidence that it has made all diligent, reasonable good faith efforts to comply with the requirements of N.C.G.S. § 18B-302 and regulations promulgated pursuant thereto through expert witness Sue Wyrick, who testified to the following:
  1. That age verification systems using alcohol wristbands are common and in use throughout the State.
  1. That age verification systems using alcohol wristbands are acceptable and reasonable.
  1. That the Respondent’s system of age verification using alcohol wristbands was reasonable and accepted within the industry Statewide.
  1. That nothing in the ABC Guidelines or other materials promulgated by the ABC Commission prohibitage verification systems using alcohol wristbands.
  1. That the fact that a patron is wearing an alcohol wristband is reasonable and sufficient evidence that the patron is of the required age.
  1. That Belk acted reasonably in serving Burns because Burns was wearing an alcohol wristband which reasonable indicated that he was of the required age to consume alcohol.
  1. The Petitioner called no witnesses, expert or otherwise, to respond to Wyrick’s testimony or otherwise testify that the Respondent’s age verification system was unreasonable or outside of the industry standard.Specifically, the Petitioner presented no witness to testify that an alcohol wristband is not evidence that reasonably indicates that a patron is at least the required age.
  1. Further, the Petitioner presented no statutory law, case law, or regulation promulgated by the N.C. ABC Commission which states that an alcohol wristband is not evidence which reasonably indicates at the time of service that a patron is at least the required age, per N.C.G.S. § 18B-302(d)(2).
  1. Based upon the statutory law, case law, evidence and witness presented to the Court at the hearing of this matter, at the time he served mixed drinks to Joshua Burns, John Belk had been presented with evidence that reasonably indicated that Burns was at least the required age, i.e. an alcohol wristband that Burns wore on his wrist on every occasion on which he was served by Belk in accordance with the accepted alcohol wristband system used by the Respondent. Therefore, the Respondent did not have actual knowledge of the violation and was not willfully blind to the violation and has a valid defense to that violation under N.C.G.S. § 18B-302(d)(2), as read in conjunction with N.C.G.S. § 18B-1005.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the ABC Commission DISMISS the complaint against Respondent.

NOTICE

The Agency that will make the final decision in this contested case is the North Carolina Alcoholic Beverage Control Commission.

The Agency is required to give each party an opportunity to file exceptions to the decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorneys of record and to the Office of Administrative Hearings.

In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge's decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge's decision, the agency shall set forth separately, and in detail, the evidence in the record relied upon by the agency in making the finding of fact.

This is 12thday of April, 2010.

______

J. Randall May

Administrative Law Judge

1

[1] A fact acknowledged by the Petitioner. (Transcript p. 32, ln 15-16).