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STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
00 ABC 0410
NORTH CAROLINA ALCOHOLIC BEVERAGE CONTROL COMMISSION,
Petitioner,
v.
A-1 STOP FOOD STORE, INC., T/A ONE STOP GROCERY,
Respondent. / )
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) RECOMMENDED DECISION
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The above entitled contested case was heard before Beecher R. Gray, administrative law judge, on July 5, 2000 in Charlotte, North Carolina. At the close of the evidence, Petitioner was requested to prepare and file a proposed recommended decision and the record was held open for its receipt. On January 5, 2001, Petitioner informed the undersigned in writing that the tape recording of the hearing was not sufficiently clear and usable to allow preparation of the proposed decision by Petitioner. The undersigned relies on testimony given at the hearing, documentary evidence admitted, and in notes taken during the hearing in the preparation of this recommended decision.

APPEARANCES

Petitioner: Fred A. Gregory, Esq.

Respondent: Joseph L. Ledford, Esq.

ISSUE

Whether Respondent violated G.S. 18B-305(a) on November 22, 1999 by selling or giving malt beverages to an intoxicated person on the licensed premises.

FINDINGS OF FACT

1.  The parties stipulated on the record that notice of hearing was proper.

2.  Respondent One Stop Grocery is a grocery store with barred windows located in an area of Charlotte known to the Charlotte Police Department as a hotspot for loitering, drugs, and violent crimes. Charlotte Police Officers Eric Duft and Nathan King went to Respondent’s store on November 22, 2000 after receiving a call from business owners requesting removal of loiterers from around the area.

3.  Upon arrival at Respondent’s store, the officers saw Robert James Mickles in the parking lot outside the store. The officers got out of the patrol car and talked to Robert James Mickles for approximately five minutes. Robert James Mickles was staggering, talking loudly, and acting boisterously. His eyes were bloodshot, glassy; he smelled of alcohol. This was not an unusual state for Robert James Mickles, known to the officers as a local wino, since he is observed by them in the same condition about every day.

4.  On November 22, 2000, the officers observed Robert James Mickles soliciting spare change from patrons or passersby. After he had accumulated enough to purchase an alcoholic beverage, the officers saw him enter Respondent’s store. Officer Eric Duft stood at the door and watched Robert James Mickles stagger past the checkout to the beer cooler where he obtained a 40 oz. King Cobra beer. Robert James Mickles took the beer to the clerk on duty, Minh Nguyen, and paid him for it. He stood 2-3 feet from the clerk as he purchased the beer.

5.  Respondent has had prior violations of Chapter 18B, the alcoholic beverage control laws, in 1999, 1997, 1994, and 1992.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I make the following Conclusions of Law.

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

2.  Robert James Mickles was intoxicated at the time he purchased a beer from Minh Nguyen, Respondent’s clerk on duty, on November 22, 1999 in Respondent’s store. This conclusion is supported by the testimonial evidence given by the Charlotte police officers who observed Robert James Mickles just prior to and during the sale transaction.

3.  Respondent, by and through its employee, Minh Nguyen, violated G.S. 18B-305 by selling a beer to an intoxicated person, Robert James Mickles, on November 22, 1999.

RECOMMENDED DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Alcoholic Beverage Commission find that Respondent violated G.S. 18B-305 as charged on November 22, 1999 and issue a fine against Respondent or suspend its ABC permits, or both, in the sound discretion of the Commission.

ORDER

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North General Statute 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. G.S. 150B-36(a).

The agency is required by G.S. 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.

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

This the 12th day of January, 2001.

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Beecher R. Gray

Administrative Law Judge