STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 01 ABC 1821

N.C. ALCOHOLIC BEVERAGE )

CONTROL COMMISSION, )

Petitioner, )

)

v. ) DECISION

)

CIRCLE K STORES, INC., )

T/A CIRCLE K #8220 )

1040 E. Lexington Avenue )

High Point, NC 27262 )

Respondent. )

This matter was heard before James L. Conner, II, Administrative Law Judge, on February 28, 2002 in High Point, North Carolina. Proposed Findings of Fact and Conclusions of Law were submitted by Respondent by electronic mail on April 2, 2002.

APPEARANCES

For Petitioner: LoRita K. Pinnix, Assistant Counsel,

North Carolina Alcoholic Beverage

Control Commission, Raleigh, North

Carolina appearing.

For Respondent: THE EDMISTEN & WEBB LAW FIRM,

Attorneys at Law, Raleigh, North Carolina;

William Woodward Webb appearing.

ISSUE

1. Whether Respondent committed a violation of North Carolina General Statute Section 18B-302 (a)(1) by selling alcoholic beverages to a minor under 21 years of age.

2. If so, whether the Respondent presented a valid defense to said violation under North Carolina General Statute Section 18B-302(d).

STATUTES AND RULES INVOLVED

North Carolina General Statute Section 18B-302

WITNESSES

For Petitioner: Erin Marie Henton,

Marc Fatigati

Detective L.D. Bowman

Detective T.L. Perry

For Respondent: Donald Lee Schilling, Jr.

FINDINGS OF FACT

From official documents in the file, sworn testimony and assessed credibility of the witnesses and other competent and admissible evidence, it is found as a fact that :

1. On August 23, 2001 at approximately 11:10 p.m. the Respondent’s employee, Donald Lee Schilling, Jr. (“Schilling”), sold malt beverages to Erin Marie Heaton (“Heaton”), a person 19 years of age, at its store located at 1040 East Lexington Avenue, High Point, North Carolina.

2. On August 23, 2001 the Respondent held off - premise Malt Beverage, Fortified Wine and Unfortified Wine permits from the Petitioner for its store located at 1040 East Lexington Avenue, High Point, North Carolina.

3. On August 23, 2001 at approximately 11:10 p.m. Heaton came into the Respondent’s store, with her friend, Marc Fatigati, and purchased from Schilling, the clerk on duty, a 20 pack of Bud Light beer.

4. Heaton, by her own testimony, was a regular customer of the Circle K store located at 1040 East Lexington Avenue, High Point, North Carolina, and according to Schilling had purchased alcoholic beverages there several times in the past using what is now regarded as a fraudulent Virginia driver’s license to establish that she was 21 years of age or older. Heaton in response to a direct question on cross-examination did not deny using a fraudulent form of identification to purchase alcoholic beverages, and, in fact, invoked her constitutional right against self-incrimination in this regard.

5. Schilling did not request to see Heaton’s identification on February 27, 1999 since he remembered her from the past prior transactions when he had examined her identification to establish that she was of an age to purchase alcoholic beverages. The court finds this testimony to be credible. First, Schilling presented as a credible witness. Second, both Heaton and Fatigati called Schilling by a familiar name during their testimony, indicating their familiarity with Schilling. Third, Schilling testified that he especially remembered Heaton because she was “pretty,” and the court finds both that this was an accurate description of Heaton and that it was plausible that Schilling would remember Heaton for this reason.

6. The driver’s license presented by Heaton to Schilling in the past appeared authentic, established that Heaton was 21 years of age or older and bore a photograph of a female bearing a physical description of the person named on the license who appeared to be Heaton.

7. Schilling has a history of examining driver’s licenses and other forms of identification to establish the ages of youthful looking customers; he has undergone training from the Alcoholic Beverages Control, High Point Police Department to assess identification cards from youthful looking customers and he has involved such law enforcement agencies regarding attempted underage purchase of alcoholic beverages. Schilling also has a good record as an employee of Circle K Stores, Inc. and was credible in his testimony particularly since he is not now employed by the Respondent, having been terminated because of the instant incident, and, therefore, has no incentive to be other than truthful.

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

CONCLUSIONS OF LAW

1. The Petitioner has the burden of proof to establish by a preponderance of the evidence that a violation of law was committed by the Respondent in its sale of alcoholic beverages to a minor.

2. The Respondent has the burden of proof to establish by a preponderance of the evidence that a valid defense exists to the violation of law in the sale of alcoholic beverages to a minor.

3. North Carolina General Statute Section 18B-302(a)(1) provides:

(a) Sale.--- It shall be unlawful for any person to:

(1) Sell or give malt beverages or

unfortified wine to anyone less

than 21 years old;

4. North Carolina General Statute Section 18B-302(d)(2) provides, in pertinent part:

(d) Defense.--- It shall be a defense to a violation of subsection (a) of this section if the seller:

(1) Shows that the purchaser produced a driver’s license . . . showing his age to be at least the required age for purchase and bearing a physical description of the person named on the card reasonably describing the purchaser;

5. The underage purchaser, Heaton, had presented in the past to Respondent’s clerk (Schilling) a driver’s license “showing her age to be at least the required age for purchase and bearing a physical description of the person on the [license] reasonably describing” Heaton in the past on several occasions, and Schilling was familiar with Heaton as a person who was over the age of 21 based on this identification.

6. The Respondent has established by a preponderance of the evidence a valid defense under North Carolina General Statutes Section 18B-302(d)(2) to a violation of North Carolina General Statutes Section 18B-302(a)(1).

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is determined that Respondent did not violate the ABC law on this occasion and the court finds in favor of 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 decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

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

This the 14th day of May, 2002.

______

James L. Conner, II

Administrative Law Judge