STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 04 ABC 2225

| | | |

|SPORTS DIMENSIONS, INC. d/b/a CLUB DEEP OROS, |) | |

| |) | |

|Petitioner, |) | |

| |) | |

|v. |) |DECISION |

| |) | |

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

| |) | |

|Respondent. |) | |

| |) | |

| |) | |

This matter was heard before Beecher R. Gray, Administrative Law Judge, on February 16, 2005 in Charlotte, North Carolina.

APPEARANCES

For Petitioner: Joseph L. Ledford, Esq.

Attorney at Law

130-A North McDowell Street

Charlotte, North Carolina

For Respondent: LoRita K. Pinnix, Esq., Assistant Counsel

N.C. Alcoholic Beverage Control Commission

Raleigh, North Carolina

ISSUES

Whether Respondent’s denial of Petitioner’s application for on-premises malt beverage and mixed beverages private club permits because of evidence which would tend to show that Petitioner would not comply with the ABC laws and whether the operation of his business at that location would be detrimental to the neighborhood as provided by N.C.G.S. 18B-901(c)(8) is supported by the evidence.

FINDINGS OF FACT

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

The parties received notice of hearing more that fifteen (15) days before the hearing.

Petitioner, Sports Dimensions, Inc., trading as Club Deep Oros, is a business located at 421 East Sugar Creek Road in Charlotte, North Carolina. Marc Hubbard is the president, manager and 100% shareholder of the business.

Petitioner submitted an application to Respondent for on-premises malt beverage and mixed beverages private club permits in May 2004.

Petitioner held temporary on-premise malt beverage and mixed beverages private club permits from July 21, 2004 until October 4, 2004.

On October 4, 2004, an Official Notice of Rejection was sent by Respondent to Petitioner, disapproving Petitioner’s application for on-premise malt beverage and mixed beverages private club permits. The stated reasons for the rejection were:

a. On or about September 18, 2004 at 10:45 p.m., the applicant’s employee, Rosa Sanchez, sold a malt beverage to Kenia Marisol Medrano, a person under the age of 12 years, in violation of N.C.G.S. 18B-302(a)(1);

b. On or about September 18, 2004 at 10:45 p.m., the applicant’s employee, Rosa Sanchez, sold a malt beverage to Ashley Marie Lopez, a person under the age of 21 years, in violation of N.C.G.S. 18B-302(a)(1);

c. On or about September 18, 2004 at 10:45 p.m., the applicant’s employees failed to limit the use of the facilities of this private club solely to persons who were members or the bona fide guest of a member in violation of 4 NCAC 02S .0107(a)(1);

d. On or about September 30, 2004 at 11:40 p.m., the applicant’s employee, Meghan Nelson, sold a malt beverage to Jessica Leigh Sheppard, a person under the age of 21 years, in violation of N.C.G.S. 18B-302(a)(1);

e. On or about September 30, 2004 at 11:41 p.m., the applicant’s employee, Meghan Nelson, sold a malt beverage to Jessica Lee Blackmon, a person under the age of 21 years, in violation of N.C.G.S. 18B-302(a)(1);

f. On or about September 30, 2004 at 11:30 p.m., the applicant’s employees failed to limit the use of the facilities of this private club solely to persons who were members or the bona fide guest of a member in violation of 4 NCAC 02S .0107(a)(1);

On February 1, 2005, an Amended Official Notice of Rejection was sent by Respondent to Petitioner disapproving Petitioner’s application for on-premise malt beverage and mixed beverages private club permits. The additional stated reasons for the rejection were:

a. On or about January 22, 2005 at 11:00 p.m., the applicant’s employee sold malt beverages without first obtaining the applicable ABC permit and revenue licenses, in violation of N.C.G.S. 18B-304(a);

b. On or about January 22, 2005 at 11:00 p.m., the applicant’s employee and sole corporate officer, Marc Hubbard, possessed more than 80 liters of malt beverages for sale without a permit authorizing such possession, in violation of N.C.G.S. 18B-304(b)(1); and

c. On or about January 22, 2005 at 11:00 p.m., the applicant’s employee and sole corporate officer, Marc Hubbard, failed to keep the sales tickets and delivery receipts furnished by the wholesaler, pursuant to 4 NCAC 02T .0502, as well as all other records of purchase of malt beverages filed separate and apart from all other records as required by 4 NCAC 02T .0602(d).

On September 18, 2004 at approximately 11:30 p.m., Kenia Medrano and Ashley Marie Lopez entered Petitioner’s business located at 421 East Sugar Creek Road in Charlotte, North Carolina. Ms. Medrano and Ms. Lopez were working with Mecklenburg County ABC Law Enforcement in an underage/undercover campaign at the time they entered the business. Before entering the business, both were instructed that if they were asked their age or for any identification, they were to tell their true age and/or show their valid identification. (T pp. 88, 93-94)

When they entered the business, both Ms. Medrano and Ms. Lopez presented a valid North Carolina Driver’s license. The date of birth of Ms. Medrano’s license was August 12, 1984 and she was twenty years old on September 18, 2004. (T p. 89). Her license had a yellow border around the picture and the statement “under 21” printed on the license. (T p. 90) Ms. Medrano is not a member of Club Deep Oros and was not the guest of a member on September 18, 2004. (T pp. 90-91) After she presented her license, not wristband was placed on Ms. Medrano and she was allowed to enter Petitioner’s business. (T p. 90) Lack of a wristband indicated that a patron was less than 21 years old. (T p. 23)

The date of birth on Ms. Lopez’s license was January 25, 1984 and she was twenty years old on September 18, 2004. (T pp. 73, 76) Her license had a yellow border around the picture and the statement “under 21” printed on the license. (T p. 94) Ms. Lopez is not a member of Club Deep Oros and was not the guest of a member on September 18, 2004. After she presented her license, no wristband was placed on Ms. Lopez’s wrist and she was allowed to enter Petitioner’s business. (T p. 95)

Mecklenburg County ABC Law Enforcement Officer Frank Lopez, the father of Ms. Lopez, entered Petitioner’s business after Ms. Medrano and Ms. Lopez. He was in the business as part of the underage/undercover campaign and in order to observe the underage persons attempt to purchase alcoholic beverages. (T p. 72) Officer Lopez is not a member of Club Deep Oros and was not the guest of a member on September 18, 2004. (T p. 73) Officer Lopez was not asked about his membership or if he was the guest of a member and was allowed to enter the private club. (T p. 74)

Once inside Petitioner’s business, both Ms. Medrano and Ms. Lopez walked up to the bar and Ms. Medrano ordered two Bud Light malt beverages from the bartender, Rosa Sanchez. (T p. 95) Ms. Sanchez did not check the identification of either Ms. Medrano or Ms. Lopez. (T pp. 75, 92, 96) Ms. Sanchez gave two cans of malt beverages to the two underage persons at which time Ms. Medrano paid for the malt beverages. (T pp. 75, 91)

On September 30, 2004 at approximately 11:30 p.m., Jessica Leigh Sheppard and Jessica Lee Blackmon entered Petitioner’s business located at 421 East Sugar Creek Road in Charlotte, North Carolina. Ms. Sheppard and Ms. Blackmon were working with Mecklenburg County ABC Law Enforcement in an underage/undercover campaign at the time they entered the business. (T p. 106) Before entering the business, both were instructed that if they were asked their age or for any identification, they were to tell their true age and/or show their valid identification. (T p. 113)

When they attempted to enter the business, both Ms. Sheppard and Ms. Blackmon presented a valid North Carolina Driver’s license. The date of birth on Ms. Sheppard’s license was May 8, 1986 and she was eighteen years old on September 30, 2004. (T p. 108) Her license had a yellow border around the picture and the statement “under 21” printed on the license. (T p. 107) Ms. Sheppard is not a member of Club Deep Oros and was not the guest of a member on September 30, 2004. When she presented her license, an orange wristband was placed on her wrist. (T pp. 103, 108) The policy of Petitioner’s business was to place a wristband on patrons who were over 21 years old. (T p. 23) After receiving the wristband, Ms. Sheppard was allowed to enter Petitioner’s business.

The date of birth on Ms. Blackmon’s license was March 1, 1985 and she was twenty years old on September 30, 2004. (T p. 114) Her license had a yellow border around the picture and the statement “under 21” printed on the license. (T p. 107) Ms. Blackmon is not a member of Club Deep Oros and was not the guest of a member on September 30, 2004. When she presented her license, no wristband was placed on her wrist and she was allowed to enter Petitioner’s business.

Charlotte Mecklenburg Police Department Detectives Douglas Moore and M. Temple entered Petitioner’s business after Ms. Sheppard and Ms. Blackmon. Both officers were in the business as part of the underage/undercover campaign and in order to observe the underage persons attempt to purchase alcoholic beverages. (T p. 98) Detectives Moore and Temple were not members of Club Deep Oros and neither was the guest of a member on September 30, 2004. Neither was asked by any employee of Petitioner’s business about membership and both were allowed to enter the private club. (T p. 100)

Once inside Petitioner’s business, both Ms. Sheppard and Ms. Blackmon walked up to the bar where each ordered a malt beverage from the bartender, Meghan Nelson. (T p. 109) Ms. Nelson did not check the identification of either Ms. Sheppard or Ms. Blackmon. (T pp. 101, 115) Ms. Nelson gave two beers to the two underage persons at which time Ms. Sheppard and Ms. Blackmon each paid for the malt beverages. (T pp. 104, 108)

On January 22, 2005, Officers K. D. Watkins and D. L. Cooper with the Charlotte Mecklenburg Police Department entered Petitioner’s business as part of an undercover campaign. (T p. 117) Neither Officer Watkins nor Officer Cooper were members of Club Deep Oros and neither was the guest of a member on January 22, 2005. (T pp 117-118) Both officers paid a $40.00 cover charge and were allowed to enter the private club. (T p. 118)

Once inside Petitioner’s business, Officers’ Watkins and Cooper were given malt beverages by an employee of the business. (T p. 122)

A search of Petitioner’s business of January 22, 2005 resulted in nineteen cases and 15 cans of beer being found in the office area of the licensed premises. (T pp. 80-81, 122) That amount of malt beverages exceeds 80 liters. (T p. 81)

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

CONCLUSIONS OF LAW

The Office of Administrative Hearings has jurisdiction in this matter.

North Carolina General Statute 18B-901(c)(8) provides, in pertinent part:

Factors in Issuing Permit . . . Other factors the Commission shall consider in determining whether the applicant and the business location are suitable are . . . (8) Any other evidence that would tend to show whether the applicant would comply with the ABC laws and whether operation of his business at that location would be detrimental to the neighborhood.

North Carolina General Statute 18B-302(a)(1) provides, in pertinent part – “It shall be unlawful for any person to sell or give malt beverages or unfortified wine to anyone less than 21 years old . . .

4 North Carolina Administrative Code 2S .0107(a) defines a private club as a private facility organized and operated by a person, association or corporation solely for a social, recreational, patriotic or fraternal purpose. Use of the facility shall not be open to the general public but shall be limited to members of the private club and their guests.

North Carolina General Statute 18B-304(a) provides in pertinent part that “it shall be unlawful for any person to sell any alcoholic beverage, or possess any alcoholic beverage for sale, without first obtaining the applicable ABC permit and revenue license.

North Carolina General Statute 18B-304(b)(1) provides in pertinent part that “possession of the following amount of alcoholic beverages without a permit authorizing that possession shall be prima facie evidence that the possessor is possessing those alcoholic beverages for sale: (1) More than 80 liters of malt beverages, other than draft malt beverages in kegs.

On September 18, 2004, Petitioner’s employee, Rosa Sanchez, sold malt beverages to Kenia Medrano and Ashley Lopez, persons under the age of 21 years, in violation of N.C.G.S. 18B-302(a)(1).

On September 18, 2004, Petitioner’s employees failed to limit the use of the private club to members and the bona fide guests in violation of 4 NCAC 2S .0107(a).

On September 30, 2004, Petitioner’s employee, Meghan Nelson, sold malt beverages to Jessica Lee Sheppard and Jessica Lee Blackmon, persons under the age of 21 years, in violation of N.C.G.S. 18B-302(a)(1).

On September 30, 2004, Petitioner’s employees failed to limit the use of the private club to members and the bona fide guests in violation of 4 NCAC 2S .0107(a)

On January 22, 2005 at 11:00 p.m., Petitioner’s employee and sole corporate officer, Marc Hubbard, possessed more than 80 liters of malt beverages for sale without a permit authorizing such possession in violation of N.C.G.S. 18B-304(b)(1).

Petitioner, trading as Club Deep Oros, is unsuitable to hold ABC permits because of evidence which shows that the applicant would not comply with the ABC laws and the operation of his business at the location would be detrimental to the neighborhood.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge finds that the Notice of Rejection is supported by the evidence and is AFFIRMED.

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, N.C. 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 N.C. Alcoholic Beverage Control Commission.

This the 22nd day of March, 2005.

_________________________________________

Beecher R. Gray

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download