Freeman v. Board of Alcoholic Control , 264 N.C. 320 ( 1965 )

141 S.E.2d 499 (1965) 264 N.C. 320

Bruce R. FREEMAN, t/a Bruce's Tavern, Seabreeze Beach, Wilmington, North Carolina, Petitioner,
v.
BOARD OF ALCOHOLIC CONTROL, State of North Carolina, Respondents.

No. 519.

Supreme Court of North Carolina.

April 28, 1965.

T. W. Bruton, Atty. Gen., George A. Goodwyn, Staff Attorney, Raleigh, for respondent-appellant.

Addison Hewlett, Jr., Wilmington, for petitioner-appellee.

HIGGINS, Justice.

The record of the proceedings before the hearing officer disclosed that two ABC employees (apparently engaged in undercover work) purchased from Bruce Freeman three drinks of whiskey for which they paid $1.50 and later in the evening they purchased two drinks from Walter Freeman, in the presence of Bruce Freeman, for which they paid $1.00. In each instance the drinks were served in cups and from a bottle taken from beneath the counter. There was some discrepancy in the testimony of the officers as to whether Bruce Freeman or Walter Freeman sold the first drinks and the hour of the sales. On two prior occasions the retail beer license of Bruce Freeman had been suspended for lack of supervision of his premises in that he had permitted whiskey to be sold thereon.

On the foregoing evidence, which was uncontradicted, the hearing officer found the facts to be as testified to by the two undercover men. The State Board of Alcoholic Control reviewed the findings and conclusions, adopted them as its own, and entered the order revoking the permit effective May 15, 1964.

Authority to conduct a hearing and determine whether a State retail beer permit should be revoked is lodged in the State Board of Alcoholic Control by G.S. § 18-78. An aggrieved party may appeal to the Superior Court of Wake County after exhausting his administrative remedies. G.S. § 143-309. The review is before the judge, G.S. § 143-314, and the scope thereof is set forth in the next succeeding section. An aggrieved party may appeal to the Supreme Court for a review of Superior Court judgment. G.S. § 143-316.

The duty to weigh the evidence and find the facts is lodged in the agency that hears the witnesses and observes their demeanor as they testify—in this case the Board of Alcoholic Control. Its findings are conclusive if supported by material and substantial evidence. Campbell v. North Carolina State Board of Alcoholic Control, 263 N.C. 224, 139 S.E.2d 197; Thomas v. State Board of Alcoholic Control, 258 N.C. 513, 128 S.E.2d 884. "Courts will not undertake to control the exercise of discretion and judgment on the part of the members of a commission in performing the functions of a state agency." Town of Williamston v. Atlantic Coast Line R. Co., 236 N.C. 271, 72 S.E.2d 609. "When discretionary authority is vested in such commission, the court has no power to substitute its discretion for that of the commission; and, in the absence of fraud, manifest abuse of discretion or conduct in excess of lawful authority, the court has no power to intervene." Pharr v. Garibaldi, 252 N.C. 803, 115 S.E.2d 18. "Hence it is that the findings of the board, when made in good faith and supported by evidence, are final." In re Hastings, 252 N.C. 327, 113 S.E.2d 433.

We hold that the evidence before the State Board of Alcoholic Control was sufficient to sustain the findings that Bruce Freeman had allowed whiskey to be sold on his retail licensed premises and had failed properly to supervise them. The findings are based on the positive assertions of two witnesses whose testimony was not contradicted. The criminal trials were independent proceedings in which the results did not bind the Board of Alcoholic Control. The rules of evidence in criminal cases require proof of guilt beyond a reasonable doubt. Sometimes juries have doubts about the testimony of undercover witnesses. At any rate the rule of double jeopardy has no application. The verdict of the jury in a criminal prosecution does not have the effect of reversing the decision of the Board of Alcoholic Control. The evidence before the Board does not permit the conclusion its action was arbitrary. The judgment of the Superior Court is

Reversed.