Monsour v. North Carolina State Board of Alcoholic Control , 5 N.C. App. 482 ( 1969 )

Beitt, J.

Petitioner contends that the court erred in affirming the finding of fact that Cassie Young was “working” for petitioner in Rick’s Lounge (petitioner’s establishment) while intoxicated on 23 March 1968 at 10:10 p.m., because the finding that she was working at that time is not supported by material and substantial evidence. He also contends that the court erred in affirming the finding of fact that petitioner failed to give his retail licensed premises the proper supervision on or about 23 March 1968 at 10:10 p.m., in violation of G.S. 18-78, for the reason that this finding is not supported by material and substantial evidence.

In Freeman v. Board of Alcoholic Control, 264 N.C. 320, 141 S.E. 2d 499, in an opinion by Higgins, J., we find the following:

“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. ABC Board, 263 N.C. 224, 139 S.E. 2d 197; Thomas v. ABC Board, 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 members of a commission in performing the functions of a State agency.’ Williamston v. R. R., 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 [sic], 252 N.C. 327, 113 S.E. 2d 433.”

The summarization of evidence by the hearing officer reveals, among other things, the following: At about 9:45 p.m. on 23 March 1968, Fayetteville Police Officers DeVane and Knight visited Rick’s Lounge, one of petitioner’s places of business. In the establishment they observed Cassie Young waiting on tables and specifically observed her going to the bar, securing three opened bottles of beer and delivering them to some young men seated at a table. Cassie Young acted differently from her usual conduct and appeared slightly unsteady and there were indications that she had been drinking. Petitioner was absent from the premises at the time. The officers left the establishment and returned some 25 minutes later and again observed Cassie Young. She was standing near the table of the parties to whom she had previously delivered the three bottles of beer; she was loud and boisterous. Upon seeing the officers, she walked over to them and made the statement that she was drunk. Petitioner was not present at that time. The officers arrested her and took her outside the establishment onto the sidewalk, at which time petitioner appeared and remarked that she was drunk, that she knew better than to drink when she was working, and that she was on duty. Cassie Young was indicted for and pleaded guilty to public drunkenness on the occasion in question and paid a fine and the court costs.

Although petitioner presented testimony showing that he was only temporarily absent from his place of business for the purpose of eating dinner at the time of the incidents complained of, that Cassie Young was off duty at the time and that she was not drunk, it was the province of the hearing officer to weigh the credibility of the testimony and to find the facts from the evidence presented.

We fully agree with the conclusion of Judge McKinnon that the findings of fact and decision of the respondent are supported by competent, material and substantial evidence, and the judgment affirming respondent Board’s suspension order as to Rick’s Lounge is

Affirmed.

MallaRD, C.J., and PaeicbR, J., concur.