Food Town Stores, Inc. v. Board of Alcoholic Control

270 S.E.2d 563, 49 N.C. App. 149, 1980 N.C. App. LEXIS 3342

• Court: Court of Appeals of North Carolina
• Decided: October 7, 1980
• Docket: No. 8010SC238
• Status: Published

Opinion

ARNOLD, Judge.

The respondent, in an excellent brief and argument by the Special Deputy Attorney General, points out that there is no dispute that employees of Blue Ridge restocked the shelves in petitioner’s store, and that an agreement may be inferred from the conduct of the parties.

We are constrained, however, to look at the regulation which petitioner is alleged to have violated, Retail Wine Regulation 4 NCAC 2 J .0106(h)(1). That regulation is as follows:

(h) Services and Inducements Prohibited. No retail wine permitee shall require by agreement or otherwise, any wholesaler, importer, manufacturer, winery or bottler to give or loan any money, services, equipment, furniture, fixtures, free wine products, or other things of value with which the business of said retailer is or may be conducted. For the purposes of this Regulation, ‘things of value’ include, but are not limited to:

(1) free services such as installation, repair, and maintenance of equipment, installation, of outdoor signs, stocking and pricing of merchandise, ....

The regulation provides that no permittee “shall require by agreement or otherwise” any wholesaler to give services, money, equipment, furniture, fixtures, free products or other things of value.

A review of the record indicates no evidence which could support a finding that petitioner required that Blue Ridge furnish services or anything of value. As petitioner points out it was not charged with violation of another regulation which prohibits permittees from accepting services from wholesalers.

It is unnecessary to discuss petitioner’s remaining contentions since the judgment of the Superior Court of Wake County is

Reversed.

Judges Erwin and Wells concur.