State Keg, Inc. v. State Board of Alcoholic Control

177 S.E.2d 861 (1970) 277 N.C. 450

STATE KEG, INCORPORATED, t/a The Keg, Petitioner,
v.
STATE BOARD OF ALCOHOLIC CONTROL, Respondent.

No. 54.

Supreme Court of North Carolina.

December 16, 1970.

Atty. Gen. Robert Morgan, Staff Attys. Christine Y. Denson and James L. Blackburn, Raleigh, for respondent, appellant.

Broughton & Brougton, by John D. McConnell, Jr., Raleigh, for petitioner, appellee.

PER CURIAM.

Pertinent regulations adopted by the North Carolina Board of Alcoholic Control pursuant to the authority granted by G.S. § 18-78(d) are as follows:

"30. Permits authorizing the sale at retail of beverages, as defined in G.S. 18-64, and Article 5 of Chapter 18 of the General Statutes, for on or off premises consumption may be suspended or revoked upon violation of any of the following provisions upon the licensed premises:

"1. Permitting intoxicated persons to loiter on the licensed premises.

* * * * * *

"3. Permitting the use of loud, profane or indecent language by any person."

G.S. § 18-78 in part provides:

"(a) If any licensee violates any of the provisions of this article or any rules and regulations under authority of this article or fails to superintend in person or through a manager, the business for which the license was issued, or allows the premises, with respect to which the license was issued, to be used for any unlawful, disorderly, or immoral purposes * * *.

* * * * * *

"(d) The State Board of Alcoholic Control * * * may revoke or suspend the State permit of any licensee for a violation of the provisions of this article or of any rule or regulation adopted by said Board."

A violation of either Regulation or of the terms of the statute is sufficient to support the suspension of the license.

We hold that the evidence before the State Board of Alcoholic Control was sufficient to sustain the finding that on February 6, 1970 Terry Lee Delaney was intoxicated and was permitted to loiter on the licensed premises of The Keg in violation of the Board of Alcoholic Control Regulation #30(1), and that Mr. Graham Oakley, the operator of The Keg on that occasion, failed to give the premises proper supervision. Such findings were sufficient to support the order of suspension of license entered by the Hearing Officer and approved by the Board. Therefore, it is not necessary to consider the evidence concerning the loud, profane and indecent language used on the premises on February 21, 1970.

The principles governing this decision were stated by Justice Higgins in Freeman v. Board of Alcoholic Control, 264 N.C. 320, 141 S.E.2d 499:

"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 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."

Accord: Lampros Wholesale, Inc. v. ABC Board, 265 N.C. 679, 144 S.E.2d 895.

There is no evidence that the action of the Board was arbitrary or in excess of its lawful authority. The judgment of the Superior Court is reversed and the Stay Order entered by Bailey, J., on May 26, 1970, staying the operation of the Order entered by the State Board of Alcoholic Control on May 18, 1970, is vacated.

Reversed.