STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 02 ABC 1882

N. C. ALCOHOLIC BEVERAGE CONTROL COMMISSION,
Petitioner,
v.
FAST FARE, INC., T/A FAST FARE NC 576,
Respondent. / )
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) / DECISION

THIS MATTER was heard before Beecher R. Gray, Administrative Law Judge, on August 6, 2003 in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Fred A. Gregory, Chief Deputy Counsel

N. C. ABC Commission

4307 Mail Service Center

Raleigh, NC 27699-4307

For Respondent: James N. Jorgensen

Bode, Call & Stroupe, LLP

P.O. Box 6338

Raleigh, NC 27628-6338

ISSUE

What administrative penalty should be imposed by the North Carolina ABC Commission against Respondent for Respondent’s sale of a malt beverage to Amethyst H. Hammac, a person less than 21 years of age, on the licensed premises on or about May 29, 2002, at 7:18 p.m., in violation of North Carolina General Statute 18B-302(a)(1)?

WITNESSES

Mr. Dowda Jack, Manager of Fast Fare No. 576

Ms. Daniela Brooks, former clerk of Fast Fare No. 576

Mr. Jack Pritchard, District Development Manager of Fast Fare No. 576

STIPULATED FINDINGS OF FACT

Pursuant to NCGS § 150B-31, Petitioner and Respondent agreed and stipulated to the following facts, which were used as evidence at the hearing and remain binding on the parties, and are hereby recognized and found as a fact as follows:

1. On May 29, 2002, the North Carolina Alcohol Law Enforcement Division’s District IV office conducted an alcoholic beverages compliance check program in Wake County.

2. The case agent for the compliance check was Brian House and the covert agent was Assistant Supervisor Herbert Battle.

3. The underaged person who was instructed to attempt to purchase a malt beverage was Amethyst H. Hammac.

4. On May 29, 2002, Amethyst Hammac was eighteen years old. Her date of birth as shown on her North Carolina Driver’s License (see Exhibit A) and her Mississippi Certificate of Live Birth was February 9, 1984 (see Exhibit B).

5. Amethyst Hammac’s picture was taken on May 29, 2002 by Assistant Supervisor Herb Battle (see Exhibit C).

6. During the undercover operation with Ms. Hammac, 25 locations with ABC permits were checked. Seven locations sold alcoholic beverages to the underaged person (see Exhibit D).

7. As part of the operation, Ms. Hammac would enter an ABC licensed premises with the covert agent and attempt to purchase alcoholic beverages. Ms. Hammac was instructed to produce her North Carolina Driver’s License if asked (Exhibit A) and to tell any clerks or store personnel her correct age if asked.

8. At approximately 7:18 p.m. on May 29, 2002, Ms. Hammac and covert agent Herb Battle entered Fast Fare 576, an ABC licensed establishment, located at 3029 Western Boulevard, Raleigh, North Carolina. Fast Fare 576 holds an off-premise Malt Beverage permit.

9. Upon entering the store, Ms. Hammac walked to the beer cooler, picked up a 473 milliliter Budweiser malt beverage and walked to the checkout counter.

10. Daniela Latisha Brooks was the clerk for Fast Fare 576 behind the counter.

11. Ms. Hammac placed the Budweiser malt beverage on the counter and the clerk, Daniela Latisha Brooks, asked to see Ms. Hammac’s identification.

12. Ms. Hammac produced her valid North Carolina Driver’s License (Exhibit A) and Ms. Brooks looked at the license for a few seconds, rang up the purchase and asked for $1.27 for the malt beverage.

13. Ms. Hammac gave Ms. Brooks a $5 bill and received back $3.73 in change from Ms. Brooks.

14. Ms. Hammac exited the outlet with the 473 milliliter Budweiser.

15. Ms. Brooks was then approached by covert agent Herb Battle and was issued a North Carolina Uniform Citation for selling a malt beverage to a person less than 21 years old.

16. Fast Fare 576, located at 3029 Western Boulevard, Raleigh, North Carolina has held ABC permits since March 3, 1982.

17. Prior to the hearing of this matter on August 6, 2003, Fast Fare 576 admitted and stipulated that the sale to Ms. Hammac was in violation of N. C. G. S. _18B-302(a)(1).

18. During the hearing of this matter, the Commission stipulated that Respondent’s Exhibit 13 is a true and accurate copy of the ABC General Guidelines for Offers in Compromise Negotiations.

ADDITIONAL FINDINGS OF FACT

From official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, it is found as a fact that:

19. Prior to and during the May 29, 2002 sale to Ms. Hammac, Ms. Brooks believed that Ms. Hammac was the required age to purchase alcohol. When Ms. Brooks inspected Ms. Hammac’s driver’s license and saw that her date of birth was February 9, 1984, Ms. Brooks, in calculating the sufficiency of Ms. Hammac’s age for the purchase, mistakenly referred to and relied upon a nearby display calendar for tobacco sales, which listed the date by which a purchaser must be born as May 29, 1984. Ms. Hammac, as indicated on her driver’s license, was born prior to May 29, 1984.

20. At the time of the sale, Ms. Hammac was 18 years of age and eligible to purchase tobacco, but ineligible to purchase alcohol, which requires the purchaser to be 21 years of age. The tobacco calendar upon which Ms. Brooks mistakenly relied in making the alcohol sale to Ms. Hammac is substantially similar to Respondent’s Exhibit 5.

21. Ms. Brooks’ reliance upon the tobacco calendar and the resultant sale to Ms. Hammac was a mistake of mathematics and momentarily confusing the nearby display calendar for tobacco sales with the date of birth required for alcohol sales. Ms. Brooks did not deliberately or wantonly or willfully make an illegal sale to Ms. Hammac in violation of N. C. G. S. _18B-302(a)(1).

22. As a result of prior incidents at Fast Fare 576, the store’s ABC permits were suspended in a compromised settlement for three years, from February 20, 1998 to February 21, 2001.

23. The citation for the sale alleged in this case is the only citation that Fast Fare 576 has received from February 21, 2001, when Fast Fare 576’s permits were reinstated and beer sales were recommenced, to the date of the hearing of this matter, August 6, 2003, a period of approximately two and one-half years. There have been no other alleged violations of the ABC laws since Fast Fare 576's permits were reinstated on February 21, 2001.

24. Fast Fare 576 is located across the street from numerous North Carolina State University dormitories and fraternity houses and is frequented by numerous North Carolina State University students, many of whom are less than 21 years of age.

25. Since the reinstatement of its alcohol permits in February 2001, Fast Fare 576 has been engaged in an ongoing program to ensure, to the extent possible, that there are no sales of alcohol in violation of the ABC laws. Specifically, employees who work at Fast Fare 576, including Ms. Brooks, are required to and do attend classes and undergo training, conducted by Fast Fare, to learn methods and procedures to ensure that they make only legal alcohol sales and avoid illegal alcohol sales, including sales to underage purchasers in violation of N. C. G. S. _18B-302(a)(1). These classes are held during each employee’s first week of employment at Fast Fare 576 and monthly thereafter. Ms. Brooks attended such classes and received extensive training and instruction concerning legal alcohol sales and avoidance of illegal alcohol sales. During the training and classes, Ms. Brooks received and completed written tests regarding legal and illegal alcohol sales (Respondent’s Exhibits 6 and 7).

26. At the beginning of each work shift at Fast Fare 576, each employee, including Ms. Brooks, was, and remains required to review and execute a “Daily Employee Sign In Sheet for Employees in North Carolina.” (“Daily Sign In Sheet”) (Respondent’s Exhibit 10). The “Daily Sign In Sheet” contains an Employee Acknowledgment, in which Fast Fare’s alcohol sales-related policies are set forth, and in particular, that it is Fast Fare’s policy “...to ask for and check ID [age identification] of ALL customers purchasing alcoholic beverages...” (Respondent’s Exhibit 10).

27. On May 29, 2002 (the date of the alcohol sale to Ms. Hammac), Ms. Brooks reviewed and signed the “Daily Sign In Sheet” at the beginning of her shift. (Respondent’s Exhibit 10). Approximately 45 minutes before the sale to Ms. Hammac occurred, Store Manager Dowda Jack and District Development Manager Jack Pritchard, as they were leaving the Fast Fare 576 store, each verbally reminded Ms. Brooks to “check ID’s” on alcohol sales.

28. Since the reinstatement of alcohol permits to Fast Fare 576 in February 2001, numerous alcohol and tobacco sales-related signs and notices have been and continue to be posted throughout the Fast Fare 576 store, including at and near the coolers in which alcohol is refrigerated and stored and on the sales counter, at each of the two cash registers. (Respondent’s Exhibits 1, 2, 3, 4, and 5). All such signage and notices were posted in Fast Fare 576 when the sale to Ms. Hammac occurred.

29. Since the reinstatement of alcohol permits to Fast Fare 576 in February 2001, all ten of the Fast Fare stores in the District of District Development Manager Jack Pritchard, including Fast Fare 576, participated in periodic “chain calls.” A “chain call” was a telephone call from one store to another store in which the caller would warn the call recipient to “check ID’s” and not sell alcohol to underage persons and to call the next store on the list with the same message. Once all of the stores were called, the last store would immediately contact Jack Pritchard and advise him that the calls were complete.

30. Since the reinstatement of alcohol permits to Fast Fare 576 in February 2001, Store Manager Dowda Jack has repeatedly reminded employees at Fast Fare 576, including Ms. Brooks, to “check ID’s” and not to sell alcohol to an underage person. Fast Fare 576's policy was and continues to be that no alcohol is to be sold to anyone who appears to be under 40 years of age, unless that person produces legally sufficient identification showing the purchaser to be 21 years of age or older. There are no exceptions to this policy, even when an employee of Fast Fare 576 seeks to purchase alcohol or tobacco.

31. Applying a zero-tolerance policy, Fast Fare suspended Ms. Brooks’ employment because of her mistake. The suspension could only be lifted with a finding by a competent court of law that Ms. Brooks did not make an illegal sale.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearing has jurisdiction in this matter.

2. North Carolina General Statute Section 18B-302(a)(1) provides, in pertinent part:

It shall be unlawful for any person to : (1) Sell or give malt beverages...to anyone less than 21 years old . . . .”

3. On May 29, 2002 at approximately 7:18 p.m. the Respondent’s employee, Daniela

Latisha Brooks, sold a malt beverage to Amethyst H. Hammac, a person less than 21 years old on the licensed premises in violation of N. C. G. S. _18B-302(a)(1).

4. The sale to an underaged person and resulting violation occurred because of a mistake on the part of a single entry-level employee, the clerk, Ms. Brooks. Ms. Brooks had received adequate training and instruction from the permittee to avoid such underaged sale.

The sale occurred because the clerk mistakenly concluded the customer was over the age of 21 by momentarily confusing the birth date required for tobacco purchase with that required for alcohol purchase.

5. The purchaser was over the age of 18, the age for purchasing cigarettes, but under the age of 21, the age for purchasing beer.

6. The sale to an underaged person and resulting violation were not deliberate, willful, knowing, or intentional. There is no evidence of negligence on the part of the permittee. The permittee trains and repeatedly instructs all employees and implements and enforces a reasonable program to ensure against underage sales. The permittee took all reasonable steps and measures to train and instruct this employee to avoid illegal sales of alcohol.

7. Based on the small quantity sold; the customer’s adult status; the fact that the underage sale occurred through a momentary mistake solely by the clerk; the permittee’s reasonable practices, training and instruction of employees, and active program to avoid underage sales; and the absence of other violations in the last three years, the violation by the permittee is not serious or egregious and does not justify a severe penalty.

RECOMMENDED DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Respondent’s ABC permits be suspended for a period of not more than ninety (90) days and that the Respondent be assessed a penalty in the amount of $1,000.00.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearing, P.O. Drawer 27447, Raleigh, NC 27611-7447, in accordance with North Carolina 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. N.C.G.S. 150B-36(a).

The Agency is required by N.C.G.S 150B-36(b) to serve a copy of the final agency decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

The North Carolina Alcoholic Beverage Control Commission is the Agency that will

make the final decision in this contested case.

This the 19th day of September, 2003.

______

Beecher R. Gray

Administrative Law Judge

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