STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

COUNTY OF DURHAM ADMINISTRATIVE HEARINGS

11 ABC 02087

NC Alcoholic Beverage Control Commission, )

Petitioner )

)

v. ) DECISION

)

CK2, LLC, )

T/A Quick Mart, )

Respondent )

This contested case was heard before Donald W. Overby, Administrative Law Judge, Office of Administrative Hearings, on August 15, 2011, in Raleigh, North Carolina.

APPEARANCES

For Petitioner: K. Renee Cowick

Assistant Counsel

NC ABC Commission

Raleigh, NC

For Respondent: Robert C. Ekstrand

Law Offices of Ekstrand & Ekstrand, LLP

Durham, NC

STATUTES AND RULES

N.C.G.S. §18B-104(a)

N.C.G.S. §18B-302(a)(1)

N.C.G.S. §18B-1005(a)(3), (b)

4 NCAC 2S.0208, .0213

N.C.G.S. 14-435

N.C.G.S. 14-269.3

N.C.G.S. Chap. 90

EVIDENCE

Petitioner introduced into evidence one CD and one DVD as illustrative of the testimony concerning a box of purported counterfeit CDs and DVDs. There is only one copy of the CD and DVD and they are not to be reproduced.

Respondent introduced a copy of the surveillance DVD.

ISSUES

1. Whether Respondent’s employees and corporate officers, Cassandra Adkins and Kuldeep Singh, failed to superintend in person or through a manager the business for which a permit was issued (to wit, drug, weapons and counterfeit goods violations), on or about April 16, 2010, at 1:00 PM, in violation of G.S. §18B-1005(b).

2. Whether Respondent’s employee, Mark Adkins, did possess counterfeit CDs and DVDs, while on the licensed premises, on or about April 16, 2010, at 1:00 PM, in violation of G.S. §14-435 and §18B-1005(a)(3).

3. Whether Respondent’s employee, Stephanie Moore, possessed a controlled substance or other illegal drug in violation of Chapter 90 of the North Carolina General Statutes, while on the licensed premises (to wit, morphine), on or about April 16, 2010, at 1:00 PM, in violation of ABC Commission Rule 4 NCAC 2S.0208.

4. Whether Respondent’s employee, Mark Adkins, did carry a gun, rifle or pistol into an establishment in which alcoholic beverages are sold, on or about April 16, 2010, at 1:00 PM, in violation of G.S. §14-269.3 and §18B-1005(a)(3).

5. Whether Respondent’s employee, Mark Adkins, knowingly possessed drug paraphernalia 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 April 16, 2010, at 1:00 PM, in violation of G.S. §18B-1005(a)(3) and §90-113.22(a).

6. Whether Respondent’s employee, Mark Mathews Adkins, interfered or failed to cooperate with Investigator Husketh, an officer engaged in the performance of his duties, on or about April 16, 2010, at 1:00 PM, in violation of ABC Commission Rule 4 NCAC 2S.0213.

7. Whether Respondent’s employee, Narinder Singh, sold a malt beverage to Andrew Hall and Stephen Mihaich, persons less than 21years old, while on the licensed premises, on or about October 29, 2011, at 9:46 PM, in violation of G.S. §18B-302(a)(1).

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the exhibits admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge makes the following Findings of Fact. In making these Findings of Fact, the Administrative Law Judge has weighed all the evidence and assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to, the demeanor of the witnesses, any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with other believable evidence.

FINDINGS OF FACT

1. Respondent has held permanent Malt Beverage, Unfortified Wine and Fortified Wine ABC permits since October 2008 for an establishment located at 3801 North Duke Street, Durham, North Carolina (hereinafter “licensed premises”).

2. Cassandra Adkins and Kuldeep Singh are the owners of the licensed premises. At all relevant times herein, neither Ms. Singh nor Ms. Adkins were present on the licensed premises.

3. On April 16, 2010, at approximately 1:00 pm, Durham Police Department Investigators Brian Black (“Black”) and Jerry Husketh (“Husketh”) participated in the execution of a search warrant at Respondent’s establishment. The search warrant was for illegal gambling devices.

4. Black went to the back office and saw a cigar box sitting in front of Respondent’s employee, Mark Adkins (“Mr. Adkins”). Black asked Mr. Adkins to exit the back office while the search was being conducted. Black then opened the cigar box and found a fully loaded Taurus handgun.

5. Mrs. Adkins testified that the gun found in the office was for her protection but it was not in her possession. Mrs. Adkins properly obtained a permit to purchase the handgun and admitted she does not have a permit to carry a concealed weapon. The permit to buy does not convey any other rights concerning the weapon other than the ability to purchase. Mrs. Adkins stated that the gun remained at the store but that no one was allowed to handle or use it except her; however, she was rarely in the store and the gun was easily accessible by other employees. C. Adkins was aware prior to April 16, 2010, that Mr. Adkins had a felony conviction in another State.

6. Black testified that he observed various items which could be drug paraphernalia about the premises, including small plastic baggies, large plastic baggies, digital scales, marijuana grinders and rolling papers. No other evidence was offered to corroborate his observations, including any of the items themselves or photographs of the items or testimony from fellow officers who were present.

7. Respondent’s employee, Stephanie Yvette Moore (“Moore”), was present during the execution of the search warrant. Moore asked Black several times for her medicine for her back pain. During the interaction, Black discovered two white tablets which he identified as morphine. There is no evidence that the substance in the medicine bottle was morphine or any other narcotic medicine. Moore stated that she did not have a prescription for the medicine and that her sister had given her the tablets.

8. In addition to assisting with the search behind the counter, Husketh also provided security as the search was being conducted. A crowd gathered and was becoming unruly. Husketh contends that Mr. Adkins was verbally abusive and combative during the search, especially when officers were attempting to gain access to the store safe. According to Husketh, he asked Mr. Adkins to sit on a stool on several occasions. Husketh contends Mr. Adkins would stand up and not follow officers’ instructions. Further he contends that on one occasion when Mr. Adkins stood up in defiance of officers’ orders, he bumped into Husketh. Husketh struggled with Mr. Adkins in placing Mr. Adkins in handcuffs.

9. A video recording of the incident does not corroborate Husketh’s version of the events. While it appears to show Mr. Adkins continuing to talk, it does not show Mr. Adkins bumping Husketh. Husketh’s contentions that Mr. Adkins was going in a direction toward items which could have posed a danger likewise are not borne out by the video.

10. The search also uncovered a large box of counterfeit CDs and DVDs.

11. Alcohol Law Enforcement Special Agent P. Armstrong (“Armstrong”) and Durham ABC Board Law Enforcement Investigator Ray Richardson (“Richardson”) responded to Respondent’s establishment.

12. Richardson has been trained by representatives of the recording industry, motion picture association, Gucci, Nike, Prada, North Carolina Secretary of State and private investigators in identifying counterfeit trademarks. In late 2009, Richardson was sworn into the North Carolina Secretary of State task force regarding counterfeit trademarks.

13. Richardson gave Armstrong his opinion as to which CDs and DVDs were counterfeit and which were not. Armstrong seized the counterfeit CDs and DVDs. Armstrong was not present for the contested case hearing in that he was on active duty training with the military.

14. Mrs. Adkins admitted that she knew the CDs and DVDs were being sold in the store.

15. Respondent’s corporate officer, Mrs. Adkins, is not present at the store every day. Mrs. Adkins has no other job or source of income. All three employees and Mrs. Adkins have a key to the office.

16. On October 29, 2010, Andrew Barksdale III (“Barksdale”) and Stephen Mihaich (“Mihaich”) were working with the Durham Police Department to conduct alcohol compliance checks at locations with ABC permits. In working with the Durham Police Department on this occasion, they entered eight different stores attempting to buy alcohol.

17. Both Barksdale and Mihaich were under age to possess or purchase alcohol on October 29, 2010. Barksdale’s date of birth is December 7, 1992. Mihaich’s date of birth is August 18, 1993.

18. Barksdale and Mihaich entered Respondent’s establishment. Mihaich wore a video recording device concealed in the button of his shirt. Barksdale retrieved an Ice House malt beverage from the cooler and presented it to Respondent’s employee, Narinder Singh (“N. Singh”). N. Singh did not request to see Barksdale’s identification and did not inquire as to Barksdale’s age. N. Singh sold the malt beverage to Barksdale.

19. Durham Police Department Officers Chris Andrews (“Andrews”) and Joseph M. Stewart (“Stewart”) functioned as “cover officers.” They observed Barksdale and Mihaich as they entered Respondent’s establishment and then exited approximately two minutes later with a bag. They also debriefed Barksdale and Mihaich after the visit. The description of the clerk provided by Barksdale and Mihaich was forwarded to Officer Patrick D. Dolan (“Dolan”). Dolan went to Respondent’s establishment and issued a criminal citation to N. Singh.

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.

2. Respondent contends violations of N.C.G.S. § 18B-1005(a)(3). Subsection “a” requires knowledge on the part of the “permittee, or his agent or employee.” In North Carolina a person acts “knowingly” when he or she is aware or conscious of what he or she is doing, or is aware of the circumstances around them. North Carolina does not recognize the doctrine of “willful blindness” wherein there is a deliberate avoidance of knowledge. The person must actually know, not merely “should have known.” See, Underwood v. State Bd. of Alcoholic Control, 278 NC 623, 181 S.E. 2d 1 (1971); State v. Bogle 190 NC 324 (1989).

3. Respondent’s employee, Mark Adkins, did knowingly possess counterfeit CDs and DVDs, while on the licensed premises, on or about April 16, 2010, at 1:00 PM, in violation of G.S. §14-435 and §18B-1005(a)(3). In as much as he was an employee and at times the store manager, and was acting at the very least as an employee on April 16, 2010, his knowledge is relevant, not the knowledge of the permittee.

4. Petitioner Commission has failed to prove that Respondent’s employee, Stephanie Moore, possessed a controlled substance or other illegal drug in violation of Chapter 90 of the North Carolina General Statutes, while on the licensed premises (to wit, morphine), on or about April 16, 2010, at 1:00 PM.

5. N.C.G.S. §14-269.3 specifically states that a person must carry a gun, rifle, or pistol into an establishment where alcoholic beverages are sold and consumed. (Emphasis added) Other similar statutes within Chapter 35 prohibit even the possession of weapons on various premises. This one does not. Criminal statutes are to be viewed strictly and narrowly and the plain language of this statute requires the person to carry the weapon into such a premise. While evidence may exist to find that Mark Adkins constructively possessed the weapon, there is no evidence to show that he carried the weapon into the premises in violation of G.S. §14-269.3 and §18B-1005(a)(3).

6. Petitioner Commission has failed to prove that Respondent’s employee, Mark Adkins, knowingly possessed drug paraphernalia 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 April 16, 2010, at 1:00 PM. No corroborative evidence was offered and many of the items identified, if not all, would have been legal for the store to possess and to offer for sale.

7. While there is not sufficient evidence to support a finding that Mr. Adkins bumped or resisted Husketh, and Husketh’s testimony was not corroborated by the video, there is sufficient evidence to support finding Respondent’s employee, Mark Adkins, failed to cooperate with Investigator Husketh on April 16, 2010, in violation of ABC Commission Rule 4 NCAC 2S.0213.

8. Respondent’s employee, Narinder Singh, sold a malt beverage to Andrew Barksdale and Stephen Mihaich, persons less than 21years old, while on the licensed premises, on or about October 29, 2011, at 9:46 PM, in violation of G.S. §18B-302(a)(1).

9. Respondent contends violations of N.C.G.S. § 18B-1005(b) by failure of the permittee to properly superintend in person or through a manager. Subsection “b” does not require knowledge on the part of the “permittee, or his agent or employee” as in subsection “a.”

10. Respondent’s employees and corporate officers, Cassandra Adkins and Kuldeep Singh, failed to superintend in person or through a manager the business for which a permit was issued on or about April 16, 2010, at 1:00 PM, in violation of G.S. §18B-1005(b) as follows:

a. Mr. Adkins is a convicted felon and unlawfully constructively possessed a firearm on the premises on April 16, 2010. Ms. Adkins, his wife and permit holder, was aware of these facts and circumstances and continued to leave the weapon in the office;

b. Mr. Akins possessed counterfeit CDs and DVDs on the premises and offered them for sale on April 16, 2010;

c. Mr. Singh sold malt beverage to underage persons on October 29, 2010.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge recommends that the ABC Commission suspend Respondent’s ABC permits for a period of 30 days.

ORDER AND NOTICE

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 G.S. §150B-36(b).

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. §150B-36(a)

The agency is required by G.S. §150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys on record and to the Office of Administrative Hearings.

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

This is the 29th day of February 2012.

____________________________________

Donald W. Overby

Administrative Law Judge

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