State of North Carolina in the Office Of s9

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF MECKLENBURG 05 ABC 0209

N. C. Alcoholic Beverage Control ) Commission ) Petitioner ) ) vs. ) DECISION ) Nuntia Ester Davis ) T/A N and R Grocery 2 ) Respondent )

On August 2, 2005, Administrative Law Judge Melissa Owens Lassiter conducted an administrative hearing in this contested case in Charlotte, North Carolina.

APPEARANCES

For Petitioner: James R. Lovett P O Box 12763 Charlotte, NC 28220-2763

For Respondent: LoRita K. Pinnix Assistant Counsel 4307 Mail Service Center Raleigh, NC 27699-4307

Whether Petitioner Davis purchased malt beverages from someone other than a licensed wholesaler who maintains a place of business in this State, in violation of N.C. Gen. Stat. § 18B- 1006(h)?

FINDINGS OF FACT

1. At all times relevant to this case, Petitioner Nuntia Esther Davis held off-premise malt beverage, unfortified wine, and fortified wine permits for N and R Grocery 2, 2210 West Morehead Street, Charlotte, NC.

2. During 2003 and 2004, the Charlotte Mecklenburg Police Department (“CMPD”) conducted an operation in Charlotte to target suspected fencing operations, for selling and receiving stolen goods. As part of that operation, CMPD’s ABC officers identified locations to target during this operation. CMPD Detectives Rita Vinson, Charles Witherspoon, and Hank Sur compiled a notebook detailing information on approximately 30 target locations for this operation. This notebook listed the name and location of each business, and posted a copy of computerized photo image from NC DMV of the “owner” or suspect of each establishment.

3. Petitioner Davis’ DMV photograph image and information was listed in this notebook alongside the information for N and R Grocery 2.

4. At approximately 10:45 p.m. on June 6, 2003, Officer Temple was working in an undercover capacity for CMPD’s fencing campaign. Temple was wearing surveillance equipment, and could contact other officers by radio. Temple’s instructions were to enter the business and attempt to sell stolen goods to the owner.

(a) Officer Temple parked his car in front of N and R Grocery 2, entered the establishment, and walked over to the front counter. An older black female with dark complexion, wearing a tan top and tan pants, was standing behind the counter and the cash register. This female was later identified as Petitioner Davis. Temple also saw an older black male sitting behind the counter.

(b) Officer Temple identified himself as Tray and advised the female and male that he had just stolen beer from a warehouse and needed to sell them right away. The female asked, “How much are you selling them for, let me see what you have.” Officer Temple returned to his vehicle, retrieved a 24 pack of Bud Light beer, and walked back into the business. He placed the beer on the counter in front of the woman. The female and Temple negotiated “back and forwards” about the price for about 4-5 minutes. During this conversation, the female asked Temple if he was a cop. Temple replied, “Hell no.”

(c) Temple retrieved two additional 24 packs of Budweiser beer from his vehicle, and carried them inside the business. Once Officer Temple returned inside the store for the third time, the female agreed to purchase all three 24 packs of beer for $12.00 in US currency. The female reached into the cash register, pulled out $12.00, and handed it to Temple. Temple handed all of the beer to the female in exchange for the money. Officer Temple left the store, and walked to his vehicle. He contacted the cover officers via radio, and informed them of what had occurred. This transaction lasted approximately 10 minutes.

5. On June 6, 2003, Officer Temple did not possess a wholesale license to see malt beverages in North Carolina.

6. Within two weeks of June 6, 2003, CMPD Detective Rita Vinson showed Officer Temple the notebook of targeted locations and owners that she had complied for this operation. Officer Temple examined Petitioner Davis’ photograph, and identified Petitioner Davis as the female who bought the stolen beer from him on June 6, 2003 at N and R Grocery 2.

7. Officer Eric Mickley is a local ABC officer with the CMPD. On August 4, 2004, Officer Eric Mickley conducted an ABC inspection at N and R Grocery 2, and spoke with Petitioner Davis. Petitioner Davis gave Officer Mickley her official driver’s license photograph,

2 and Mickley identified Davis as the permittee of the establishment. During that inspection, Officer Mickley observed other CMPD officers arrest Petitioner Davis for criminal charges related to the June 6, 2003 incident.

8. At the administrative hearing, Officer Temple identified Petitioner Davis as the female he had sold stolen beer to at N and R Grocery 2 on June 6, 2003.

9. Petitioner’s sister, Ms. D. Johnson, has worked for Petitioner Davis at N and R Grocery 2 for several years. She currently works at N and R Grocery 2 every day. When asked on cross- examination if she was working at the business on June 6, 2003, Ms. Johnson did not appear to understand the question. The undersigned notes that Ms. Johnson spoke English in a broken pattern. It is questionable whether she understood when she took an oath to tell the truth, and why she was testifying in this matter. Ms. Johnson and Petitioner Davis are recognizably sisters with similar facial features. However, Petitioner Davis is thinner in statute than Ms. Johnson, appearing to weigh considerably less than Johnson.

10. Petitioner failed to present sufficient evidence to prove that Ms. Johnson, not Petitioner Davis, was the person who bought stolen beer from Officer Temple on June 6, 2003. Assuming arguendo that Ms. Johnson was that person, Petitioner Davis would still be responsible for allowing her employee to purchase beer from a person other than a licensed wholesaler.

CONCLUSIONS OF LAW

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

2. N.C. Gen. Stat. § 18B-1006(h) provides:

A retail permittee may purchase malt beverages, unfortified wine, or fortified wine only from a wholesaler who maintains a place of business in this State and has the proper permit.

3. On June 6, 2003, Petitioner Davis, a retail permittee with a malt beverage permit, purchased three 24 packs of malt beverages from a person who was not a licensed wholesaler who maintains a business in North Carolina in violation of N.C. Gen. Stat. § 18B-1006(h).

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the Respondent should impose a 120-day active suspension of Petitioner’s ABC permits. The last 60 days of such suspension may be avoided by paying a $1000.00 fine.

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

3 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 the 13th day of September, 2005.

______Melissa Owens Lassiter Administrative Law Judge