STATE OF NORTH CAROLINA_



STATE OF NORTH CAROLINA |IN THE OFFICE OF | |

| |ADMINISTRATIVE HEARINGS |

|COUNTY OF CUMBERLAND |FILE NO. 06 ABC 1730 |

|N.C. ALCOHOLIC BEVERAGE CONTROL COMMISSION, | |) | |

|Petitioner, | |) | |

| | |) | |

|vs. | |) | |

| | |) | |

|NASHWAN DAAN SALEH, | |) |DECISION |

|T/A CIRCLE B 3 | |) | |

|802 Bragg Boulevard | |) | |

|Fayetteville, NC 28301 | |) | |

|Respondent. | |) | |

| | |) | |

| | |) | |

On January 17, 2007, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Fayetteville, North Carolina. At the close of the hearing, the undersigned ruled for Petitioner, and asked Petitioner’s counsel to draft a proposed Decision. On February 19, 2007, Petitioner filed a proposed Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: LoRita K. Pinnix

Assistant Counsel

4307 Mail Service Center

Raleigh, NC 27699-4307

For Respondent: Failed to Appear

ISSUE

Whether the Respondent’s employee, Mohomed Hizam Anabeeb, knowingly possessed drug paraphernalia used to inject, inhale or otherwise introduce into the body a controlled substance which would be unlawful to possess, while upon the licensed premises on or about October 15, 2005, in violation of N.C. Gen. Stat. §§18B-1005(a)(3) and - 90-113.22(a)?

STATUTES AND RULES INVOLVED

N.C. Gen. Stat. § 18B-1005(a)(3)

N.C. Gen. Stat. § 90-113.22(a)

FINDINGS OF FACT

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

1. On October 15, 2005, the Respondent held off-premise Malt Beverage, Fortified Wine and Unfortified Wine permits from the Petitioner for its business located at 802 Bragg Boulevard in Fayetteville, North Carolina.

2. On October 15, 2005, Cumberland County Alcohol Law Enforcement Agents J. Matthews and T. Morris entered Respondent’s business located at 802 Bragg Boulevard in Fayetteville, North Carolina to conduct an inspection of the ABC permitted premises. Respondent’s employee, Mohamed Hizam Anaheed, was behind the cash register in the business.

3. During the inspection, the agents located behind the register and within reach of Anaheed, six glass pipes with pieces of copper scrub pads inserted into the pipes. The only purpose of these pipes and copper pads so assembled is to smoke “crack” cocaine, a controlled substance.

4. The Agents also located marijuana-smoking bowls, digital scales, and containers used to hide controlled substances on the licensed premises.

5. On December 15, 2006, Respondent, Nashwan Daan Saleh, was served with a Notice of Hearing from the Office of Administrative Hearings notifying him of the January 17, 2007 hearing.

6. Neither permittee Saleh nor his representative appeared at the January 17, 2007 contested case hearing.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge concludes as follows:

1. The Office of Administrative Hearings has subject matter and personal jurisdiction in this contested case.

2. North Carolina General Statute § 18B-1005(a)(3) provides, in pertinent part:

(a) Certain Conduct. - It shall be unlawful for a permittee … or employee...to knowingly allow any of the following kinds of conduct to occur on his licensed premises: …

(3) Any violation of the controlled substances … statutes…

3. North Carolina General Statute § 90-113.22(a) provides in pertinent part:

It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to … inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.

4. On October 15, 2005, Respondent’s employee, Mohamed Hizam Anabeeb, knowingly possessed drug paraphernalia used to inject, inhale, or otherwise introduce into the body a controlled substance. Possession of such paraphernalia on the alcoholic beverage licensed premises is unlawful as it violates N.C. Gen. Stat. § 18B-1005(a)(3) and N.C. Gen. Stat. § 90-113.22(a).

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent’s ABC permits should be suspended for ten days, and Respondent should pay a fine of $500.00.

ORDER AND NOTICE

The North Carolina Alcoholic Beverage Control Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This is the 19th day of February, 2007.

______________________________

Melissa Owens Lassiter

Administrative Law Judge

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