Bruce v. State Board of Alcoholic Control

227 S.E.2d 298 (1976) 30 N.C. App. 492

Bruce FAY, t/a the Bowery
v.
The STATE BOARD OF ALCOHOLIC CONTROL.

No. 7610SC88.

Court of Appeals of North Carolina.

August 18, 1976. Certiorari Denied November 4, 1976.

Bailey & Gaylor by Edward G. Bailey, Jacksonville, for petitioner appellant.

Atty. Gen. Rufus L. Edmisten by Associate Attorney James Wallace, Jr., Raleigh, for the North Carolina State Board of Alcoholic Control, appellee.

Certiorari Denied by Supreme Court November 4, 1976.

PARKER, Judge.

Acting in exercise of the State's police power, our General Assembly enacted Chapter 18A of the General Statutes, entitled "Regulation of Intoxicating Liquors." By G.S. 18A-14(a) The State Board of Alcoholic Control was created. This Board is given broad powers, including the power "[t]o see that all the laws relating to the sale and control of intoxicating liquor are observed and performed," G.S. 18A-15(1), and the power to adopt "reasonable rules and regulations for the purpose of carrying out the provisions" of G.S. Chapter 18A, G.S. 18A-15(14). The statutes provide for the issuance of permits by the Board, and only those holding a permit from the Board may engage in the sale and distribution of beer. "Other than as authorized by a legally issued permit, there is no right to sell beer, wine, and other alcoholic beverages in North Carolina." Hursey v. Town of Gibsonville, 284 N.C. 522, 527, 202 S.E.2d 161, 164 (1974).

"A permit is a privilege granted only to those who meet the standards which the Board has set up and may, and should be, revoked if the permittee fails to keep faith with the Board by observing its regulations and obeying the laws of the State." Wholesale v. ABC Board, 265 N.C. 679, 681, 144 S.E.2d 895, 897 (1965). "A violation of either a statute or a regulation is sufficient to support the suspension of the license." C'est Bon, Inc. v. Board of Alcoholic Control, 279 N.C. 140, 145, 181 S.E.2d 448, 451 (1971); G.S. 18A-43(d).

In the present case the Board, after notice and hearing as provided by law, has found that the petitioner violated both a statute, G.S. 18A-34(a)(4), and Malt Beverage Regulation VIII D. 16. The statute, G.S. 18A-34(a)(4), provides as follows:

"(a) No holder of a license or permit authorizing the sale at retail of malt beverages or wine (fortified or unfortified) for consumption on or off the premises where sold, or any servant, agent, or employee of the licensee, shall do any of the following upon the licensed premises:

* * * * * *

(4) Permit on the licensed premises any disorderly conduct, breach of peace, or any lewd, immoral, or improper entertainment, conduct, or practices; or permit on the licensed premises any conduct or entertainment by nude performers or entertainers, or persons wearing transparent clothing or performances by any male or female performers simulating sexual acts or sexual activities with any person, object, device or other paraphernalia."

Malt Beverage Regulation VIII D. 0116 provides that "[n]o permittee nor his employees shall allow or permit any person to perform acts of, or acts which simulate. . . the displaying of the pubic hair, anus, vulva or genitals."

Judicial review of the Board's order suspending petitioner's retail beer permit in the present case is governed by Article 33 of G.S. Ch. 143. (For cognate statutory provisions effective 1 February 1976, see Article 4 of G.S. Ch. 150A.) "Upon such review, the ``whole record' test is applicable, and the decision of the Board may be reversed if substantial rights of the licensee are prejudiced by administrative findings, inferences, conclusions or decisions which are not supported ``by competent, material, and substantial evidence in view of the entire record as submitted.'" Underwood v. Board of Alcoholic Control, 278 N.C. 623, 629, 181 S.E.2d 1, 5 (1971). Applying the "whole record" test in the present case, we find ample, competent, material, and substantial evidence to support the Board's factual finding that petitioner "did permit improper entertainment, conduct and practices" upon the licensed premises "by allowing dancing where the dancing girl exposed her pubic area to customers." We find impersuasive the petitioner's contention that there was no competent, material, and substantial evidence to show a violation of the Board's regulation which he was charged with violating, since that regulation prohibits exposure of "pubic hair" and does not expressly prohibit exposure of the "pubic area." The Board's regulations are not criminal statutes to be strictly construed. They are civil regulations to be reasonably interpreted so as to accomplish the legitimate purposes for which they are issued. Moreover, the Board's factual findings should be understood in the light of the evidence on which they are based. Here, the Board's factual finding that "the dancing girl exposed her pubic area to customers on the licensed premises" was supported by ample, competent, direct evidence. Interpreted in the light of that evidence, that finding shows a clear violation of the Board's regulation as reasonably construed. It also shows a violation of the statutory proscription against permitting on the licensed premises "improper entertainment, conduct, or practices."

Petitioner contends that he should not be held responsible for the actions of his female employee in this case, pointing to his evidence that he attempted to exercise tight supervision over his waitresses. Petitioner, however, acts through his agents and employees and is responsible for their conduct. Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864 (1957); American Legion v. Board of Alcoholic Control, 27 N.C.App. 266, 218 S.E.2d 513 (1975). Nothing in the present record indicates that the employee here involved acted suddenly or unexpectedly or in such manner as to make it unfair to hold petitioner responsible for her conduct on the licensed premises.

Petitioner's remaining contentions have been duly considered. We find none of them persuasive.

The Judgment of the Superior Court of Wake County affirming the decision of the Board of Alcoholic Control is

Affirmed.

HEDRICK and ARNOLD, JJ., concur.