State of North Carolina s54

STATE OF NORTH CAROLINA IN THE OFFICE ADMINISTRATIVE HEARINGS COUNTY OF RUTHERFORD 03 ABC 1246 ______

N.C. Alcoholic Beverage Control ) Commission, ) Petitioner, ) ) ) vs. ) DECISION ) ) Lake Point Restaurant Inc. ) T/A Larkins on the Lake Bay Front ) Bar and Grill, ) Respondent. ) ______

THIS MATTER was heard before John C. Hunter, Temporary Administrative Law Judge, on October 8, 2003, in Asheville, North Carolina.

APPEARANCES

For Petitioner: Fred A. Gregory, Chief Deputy Counsel N.C. ABC Commission 4307 Mail Service Center Raleigh, NC 27699-4307

For Respondent: Mark D. Hammond, President Lake Point Restaurants, Inc. P.O. Box 681 Lake Lure, NC 28746

Whether Permittee’s employee, Randy Wayne Elliott, sold a malt beverage to Matthew Justin Cox, a person less than 21 years old, on or about November 2, 2002, at 8:40 p.m., in violation of N.C. G.S. 18B-302(a)(1).

WITNESSES ALE Agent John Pace Matthew Justin Cox

FINDINGS OF FACT

Based on the evidence presented at the hearing on October 8, 2003, the administrative law judge finds the following facts:

1. That Respondent, Larkins on the Bay Front Bar & Grill, is located at 1020 Memorial Hwy, Lake Lure, NC, and holds the following ABC permits: mixed beverage restaurant, on-premise malt beverage, unfortified and fortified wine permits.

2. That on November 2, 2002, ALE Agent John M. Pace conducted an undercover compliance check in Rutherford County, NC, to detect sales of alcoholic beverages to persons less than 21 years of age.

3. As part of the compliance check, Agent Pace used underage person Matthew Justin Cox. On November 2, 2002, Matthew Cox was 18 years old, date of birth, January 9, 1984 (See Petitioner’s Exhibit # 1, birth certificate).

4. Prior to the undercover compliance check, Matthew Cox was age tested pursuant to ALE guidelines and was approved for such use.

5. That at approximately 8:40 p.m., Matthew Cox entered Larkins on the Lake Bay Front Bar and Grill and was instructed by Agent Pace to attempt to purchase an alcoholic beverage.

6. That Matthew Cox approached the bar and ordered a Bud Light malt beverage from bartender Randy Elliott (See Petitioner’s Exhibit #2).

7. That permittee’s employee, Randy Elliott, retrieved a 355-milliliter bottle of Bud Light from the cooler and requested to see Matthew Cox’s identification.

8. That Matthew Cox presented his North Carolina driver’s license to Randy Elliott, who then examined the driver’s license, carried on some conversation with Matthew Cox, and returned the driver’s license to Matthew Cox.

9. Matthew Cox then paid Randy Elliott $2.50 for the malt beverage. Randy Elliott rung up the purchase and placed the malt beverage in front of Matthew Cox. Matthew Cox then walked away from the bar and left the establishment.

2 10. That Agent John Pace, who observed the transaction, then informed Randy Elliott of the violation, grabbed the Bud Light and requested Randy Elliott to step outside the establishment. Mr. Elliott was cited for selling a malt beverage to a person under 21 years old.

11. That on November 2, 2002, hours prior to the undercover compliance check with Matthew Cox, ALE Agent John Pace visited Larkins on the Lake Bay Front Bar and Grill and informed the permittee that ALE had received a complaint concerning underage consumption on their premises. Furthermore, permittee was informed that a compliance check would be forthcoming.

12. That a photocopy of Matthew Cox’s North Carolina driver’s license that was shown to Permittee’s employee, Randy Elliott, on November 2, 2002, was received into evidence (See Petitioner’s Exhibit #3).

13. That on October 8, 2003, only hours prior to the contested case hearing in Asheville, NC, Matthew Cox went to the NC Department of Motor Vehicles and got a new driver’s license. Thus, the original license viewed by the employee was not available at the hearing.

14. That the birth date year on the photocopy of Matthew Cox’s driver’s license received into evidence is not legible. It is unclear from an inspection of the photocopy whether the birth date year was legible on the original driver’s license used in this undercover operation conducted by ALE.

15. That the picture of Matthew Cox on the driver’s license photocopy shows “under 21” but that without knowledge of the year of the birth date it would be impossible for a Permittee to tell if, in fact, Mr. Cox was under 21 at the time of the purchase.

16. That according to the testimony of both witnesses for the Petitioner, it was very busy at the bar during the time Mr. Cox purchased the malt beverage.

17. Upon being confronted by ALE Agent Pace concerning the sale to Cox, Permittee’s employee stated that he had checked the ID and believed Mr. Cox to be over 21 years of age.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned finds the following Conclusions of Law:

1. The Office of Administrative Hearings has jurisdiction in this matter and both parties have been properly noticed for this hearing.

3 2. North Carolina General Statute Section 18B-302(a)(1) provides in pertinent part: It shall be unlawful for any person to sell or give malt beverages … to anyone less than 21 years old.

3. On November 2, 2002, at approximately 8:40 p.m., Respondent’s employee, Randy Elliott, sold a malt beverage, Bud Light, to Matthew Justin Cox, a person less than 21 years old on the licensed premises, in violation of N.C. G.S. 18B-302(a)(1).

4. General Statute 18B-302(d)(1)(2) provides a defense for selling alcoholic beverages to persons less than 21 years old. If the facts showed that Matthew Cox presented identification showing that he was of the required age to purchase alcoholic beverages or other facts that reasonably indicated at the time of sale Matthew Cox was at least the required age, then Respondent would be entitled to said defense.

5. Pursuant to ABC Commission Rule 4 NCAC 02S .0233(b):

It shall be the duty of the permittee and his employees to determine the age of any person consuming or possessing alcoholic beverages on the licensed premises …

6. The evidence in this hearing indicates that the ALE intentionally sent a minor into the Permittee’s premises for the express purpose of attempting to purchase a malt beverage; that the ALE allowed the minor to carry and present an ID that did not clearly indicate his date of birth; that the Permittee’s employee asked for and inspected the ID carried by the minor, and that based upon that inspection the employee believed the minor to be over the age of 21 years. Given the condition of the ID as presented at the hearing, and given that the ALE created the possibility of confusion on the central issue of the age of the minor by allowing an ID to be used which did not clearly show the birth date of the minor, the undersigned finds that the Permittee is entitled to the defenses available in General Statute 18B-302(d).

DECISION

Based upon the above Findings of Fact and Conclusions of Law, the undersigned recommends that no action be taken concerning the subject permits.

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).

4 NOTICE

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’ attorney on record and to the Office of Administrative Hearings.

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

This the 7th day of January, 2004.

______John C. Hunter Temporary Administrative Law Judge