State of North Carolina s72

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ROBESON 10 ABC 2512

Scooby’s Bar & Restaurant, ) Sherri Lynn Bridgeman, ) Petitioner, ) ) DECISION v. ) ) NC ABC Commission, ) Respondent. )

This contested case was heard before Beecher R. Gray, Administrative Law Judge, on July 14, 2010, in Fayetteville, North Carolina.

APPEARANCES

Petitioner: Sherri Lynn Bridgeman, appearing pro se Annette Dent 2565 E. 5th Street Lumberton, NC 28358

Respondent: K. Renee Cowick, Esq. Assistant Counsel North Carolina Alcoholic Beverage Control Commission 4307 Mail Service Center Raleigh, NC 27699-4307

Whether Petitioner’s rights substantially were prejudiced by Respondent’s rejection of Petitioner’s application for mixed beverage private club on-premises and malt beverage ABC permits because of local government objection as to the applicant and the location.

FINDINGS OF FACT

The undersigned Administrative Law Judge finds the following facts:

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. On March 16, 2010, Petitioner submitted an application for ABC permits for an establishment to be operated as a private club with mixed beverages on-premises and malt beverages located at 700 North Roberts Avenue, Lumberton, North Carolina.

1 3. Included in the application package submitted by Petitioner to Respondent was the “Local Government Opinion” form completed by Lumberton Police Chief Michael McNeill (“McNeill”). Chief McNeill indicated he did not approve of either the applicant or the location because of drunk and disruptive behavior that occurs when a business serving alcohol is operating at 700 North Roberts Avenue. Attached to the form was a letter from the Lumberton City Attorney, a memo from Chief McNeill, and a history of calls for service to the applicant address.

4. In Petitioner’s application package was an “Inspection/Zoning Compliance” form. The City of Lumberton’s Director of Planning, M. Brandon Love, completed the form. A bar business at 700 North Roberts Avenue would be non-compliant with zoning ordinances but is grandfathered or waived as a nonconforming use if the nonconforming use has been continuous, as defined in the City of Lumberton Zoning Ordinances. A restaurant business operated at the 700 North Roberts Avenue would be an allowed use under the Zoning Ordinances. There was evidence produced during this hearing that this location had been used as a bar serving alcohol for a number of years and no showing was made or offered that Petitioner’s application would be disqualified under the City of Lumberton’s zoning ordinances.

5. Based on these objections, the application was processed via a 21-day investigation wherein the applicant did not receive temporary permits during the investigation of the application.

6. Alcohol Law Enforcement Special Agent Jimmy Miller was assigned to complete the investigation. On April 5-6, 2010, Agent Miller interviewed neighbors of the applicant location, including Clifton Townsend (“Townsend”) and Maurice Britt (“Britt”).

7. Clifton Townsend has lived at 2101 Oak Street, next door to the bar at 700 N. Roberts Avenue, for 42 years. When a bar business is operating at 700 North Roberts Avenue, as has been the case for several years, Clifton Townsend stated that it is living “next door to hell.” The loud music makes his closet doors vibrate, interrupts or prevents his sleep, and bottles and other trash are thrown into his yard. He has had to replace his mailbox more than once after damage occurred to his mailbox during nights when the bar was open.

8. Maurice Britt has lived at 2201 Oak Street, in close proximity to the bar at 700 N. Roberts Avenue, for 46 years. Britt has had to replace his mailbox three times after damage occurred to his mailbox during nights when a bar business was operating at 700 North Roberts Avenue. It is difficult to sleep at 2:00 AM when the patrons of 700 North Roberts Avenue are leaving the business due to loud stereos, revving of engines, shouting, fighting and gun shots.

9. Respondent produced no evidence as to the unsuitability of the applicant in this contested case hearing and agreed on the record that suitability of the applicant, although cited in the local government objection, was not supported by any evidence submitted to Commission staff and was not considered as a grounds to deny the applications.

10. Although Petitioner Bridgeman applied for a mixed beverage private club on- premises, she testified that what she really wanted was to operate a mixed beverage restaurant

2 with full knowledge that a mixed beverage restaurant permit required that 30% of the gross revenue in that business be generated by food sales in the restaurant. Petitioner applied for the mixed beverage private club on-premises because she believed that she could gain more control over the quality of customer she admitted into her business.

CONCLUSIONS OF LAW

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

1. The parties properly are before the Office of Administrative Hearings.

2. The evidence produced in this hearing supports the issuance of temporary Mixed Beverage Restaurant and Malt Beverage ABC permits with conditions which are designed to protect the legitimate interests of the residents in the neighborhood for a trial period.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge finds that the evidence supports the issuance of temporary mixed beverage restaurant and malt beverage ABC permits for a period of six (6) months with conversion at that time to a permanent permit conditioned upon Petitioner’s demonstrated efforts and results in protecting the legitimate interests of the nearby neighbors in maintaining a relatively quiet neighborhood in and around the immediate area of the restaurant so as not to interfere with the nearby neighbors’ ability to sleep at night and to enjoy the use and benefit of their premises without undue interference from Petitioner’s mixed beverage restaurant operation.

It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearing, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with NCGS §150B-36(b).

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. NCGS §150B-36(a)

The agency is required by NCGS §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.

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

This is the 2nd day of August, 2010.

______Beecher R. Gray, Administrative Law Judge