C'Est Bon, Inc. v. North Carolina Bd. of Alcoholic Control, 112

• Decision Date: 10 June 1971
• Docket Number: No. 112,112
• Citation: 279 N.C. 140,181 S.E.2d 448
• Court: North Carolina Supreme Court
• Parties: C'EST BON, INC., t/a C'est Bon v. NORTH CAROLINA BOARD OF ALCOHOLIC CONTROL.

Page 448

181 S.E.2d 448

279 N.C. 140

C'EST BON, INC., t/a C'est Bon v. NORTH CAROLINA BOARD OF ALCOHOLIC CONTROL.

No. 112.

Supreme Court of North Carolina.

June 10, 1971.

Plumides & Plumides by Michael G. Plumides, Charlotte, for petitioner appellant.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Christine Y. Denson for respondent appellee.

MOORE, Justice.

The State Board of Alcoholic Control has the authority to regulate and supervise the sale and distribution of alcoholic beverages. Only those holding a permit from the Board may engage in the sale and distribution of beer. The permit is a privilege granted to those who meet the standard which have been established by the General Assembly or regulations adopted by the Board pursuant to the authority granted by G.S. 18--78(d), and the permit may and should be revoked if the permittee violates the laws or regulations pertaining to such permit. A violation of either a statute or a regulation is sufficient to support the suspension of the license. G.S. 18--78(d); State Keg, Inc. v. Board of Alcoholic Control, 277 N.C. 450, 177 S.E.2d 861; J. Lampros Wholesale v. North Carolina ABC Board, 265 N.C. 679, 144 S.E.2d 895; Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864.

Before a permit can be suspended or revoked, G.S. 18--137 requires notice to the permittee of the time and place for a hearing with an opportunity for the permittee to offer evidence and to be represented by counsel. The charges against the permittee must be specific. The hearing may be before the Director or a Hearing Officer. After the hearing, the Hearing Officer reviews all the evidence, records his findings of fact and conclusions of law, and makes his recommendations to the Board. The Chairman of the Board causes the record, findings, conclusions, and recommendations of the Hearing Officer to be submitted to the Board for approval, modification, or rejection as the Board may find to be justified by the record. The Board makes the final decision. G.S. 18--78; G.S. 18--137; G.S. 18--138; North Carolina Board of Alcoholic Control Inspection and Enforcement Rule 3.A.8; Sinodis v. State Board of Alcoholic Control, 258 N.C. 282, 128 S.E.2d 587.

After a hearing to determine whether the permittee has violated the law or regulations, the findings of the Board are conclusive if supported by competent, material and substantial evidence. State Keg, Inc. v. Board of Alcoholic Control, supra; Freeman v. Board of Alcoholic Control, 264 N.C. 320, 141 S.E.2d 499; Campbell v. North Carolina State Board of Alcoholic Control, 263 N.C. 224, 139 S.E.2d 197; Thomas v. State Board of Alcoholic Control, 258 N.C. 513, 128 S.E.2d 884.

On appeal to the court for judicial review of the Board's decision, it is the duty of the court to review the evidence and determine whether the Board had before it any material and substantial evidence sufficient to support its findings. Wholesale v. ABC Board, supra.

In the present case the Board found as a fact, based upon the testimony of two eyewitnesses, that the permittee sold and allowed the consumption of beer on its premises at approximately 12:03 a.m. This was a violation of G.S. 18--78.1(3), which provides it is unlawful to 'sell such beverages upon the licensed premises or permit such beverages to be consumed thereon, on any day or at any time when such sale or consumption is prohibited by law,' and of G.S. 18--141 which provides that beer will not be sold between the hours of 11:45 p.m. and 7:30 a.m., and will not be consumed on the premises between 12 midnight and 7:30 a.m.

The Board further found as a fact, based upon testimony of the same eyewitnesses that the permittee allowed B. B. Jasper, and employee, to consume intoxicating beverages (whiskey) on the premises on 26 and 27 June 1970. Malt Beverage Regulation No. 30 provides:

'30. Permits authorizing the sale at retail of beverages, as defined in G.S. 18--64 and Article 5 of Chapter 18 of the General Statutes, for on or off premises consumption may be suspended or revoked upon violation of any of the following provisions upon the licensed premises:

'6. Any permittee or employee consuming intoxicating beverages on the premises. * * *'

The petitioner contends that Jasper was an independent contractor and was not an employee of the club. However, in an affidavit filed by Jasper, he states that he was informed by the management of C'est Bon that if he were caught drinking alcoholic beverages on the premises 'my Employment would be terminated; * * *' Again in his affidavit he indicates that his drinking under the table was done 'out of the sight of my Employer. * * * (Emphasis added.) In addition, Moore, the manager of C'est Bon, testified that he told Jasper that he was not allowed to drink while Employed there. We hold...