Hunter v. Alcoholic Beverage Control Commission

Court of Appeals of North Carolina

Hunter v. Alcoholic Beverage Control Commission

315 S.E.2d 531, 68 N.C. App. 638, 1984 N.C. App. LEXIS 3453

CourtCourt of Appeals of North Carolina

DecidedJune 5, 1984

DocketNo. 8310SC454

StatusPublished

This text of 315 S.E.2d 531 (Hunter v. Alcoholic Beverage Control Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hunter v. Alcoholic Beverage Control Commission, 315 S.E.2d 531, 68 N.C. App. 638, 1984 N.C. App. LEXIS 3453 (N.C. Ct. App. 1984).

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Opinion

WEBB, Judge.

The question presented by this appeal is whether there is competent evidence to support the hearing officer’s findings of fact and conclusions of law adopted by the Commission which are based on the assumption that petitioner’s store and the recreation center were in fact only one business, and not two separate businesses. The findings of the Alcoholic Beverage Control Commission, after proper hearing, are conclusive if supported by competent, material and substantial evidence. See C’est Bon, Inc. v. [641]*641Board of Alcoholic Control, 279 N.C. 140, 146, 181 S.E. 2d 448, 451-52 (1971); Keg, Inc. v. Board of Alcoholic Control, 277 N.C. 450, 456, 177 S.E. 2d 861, 865 (1970); Parker v. Board of Alcoholic Control, 23 N.C. App. 330, 332, 208 S.E. 2d 727, 729 (1974).

We believe that the circumstantial evidence, the family relationship between petitioner and his son, and the evidence showing that petitioner had previously attempted to obtain an on-premise malt beverage permit constitutes sufficient evidence to support the conclusion that the two businesses were in fact one business, and that the recreation center was included within the premises covered by the malt beverage and wine permits issued to petitioner. The evidence shows that six months after petitioner applied for an on-premise malt beverage permit, which was denied, petitioner built an annex to his store in which his son operated a recreation center and in which beer was sold without an on-premise permit. The testimony of Officer Emory tends to show that there was a hole in the common wall shared by the store and the annex which was covered by a flag and through which, on at least one occasion, cases of beer were passed from the store into the annex. Based on such evidence, the hearing officer and the Commission could reasonably infer that beer from petitioner’s store was being sold in the recreation center, and that the store and the recreation center were in fact so interrelated as to constitute a single business.

Petitioner also contends the Commission erred in failing to allow him to present any further evidence at the hearing before it on 30 April 1982. There is nothing in the record before this Court which indicates that the Commission improperly disallowed any evidence tendered by petitioner at the hearing; therefore, this argument is meritless.

We hold the findings of fact, conclusions of law, and order of the respondent Commission are supported by competent, material and substantial evidence. The judgment of the superior court is affirmed in all respects.

Affirmed.

Judges BECTON and EAGLES concur.

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WEBB, Judge.

The question presented by this appeal is whether there is competent evidence to support the hearing officer’s findings of fact and conclusions of law adopted by the Commission which are based on the assumption that petitioner’s store and the recreation center were in fact only one business, and not two separate businesses. The findings of the Alcoholic Beverage Control Commission, after proper hearing, are conclusive if supported by competent, material and substantial evidence. See C’est Bon, Inc. v. [641]*641Board of Alcoholic Control, 279 N.C. 140, 146, 181 S.E. 2d 448, 451-52 (1971); Keg, Inc. v. Board of Alcoholic Control, 277 N.C. 450, 456, 177 S.E. 2d 861, 865 (1970); Parker v. Board of Alcoholic Control, 23 N.C. App. 330, 332, 208 S.E. 2d 727, 729 (1974).

We believe that the circumstantial evidence, the family relationship between petitioner and his son, and the evidence showing that petitioner had previously attempted to obtain an on-premise malt beverage permit constitutes sufficient evidence to support the conclusion that the two businesses were in fact one business, and that the recreation center was included within the premises covered by the malt beverage and wine permits issued to petitioner. The evidence shows that six months after petitioner applied for an on-premise malt beverage permit, which was denied, petitioner built an annex to his store in which his son operated a recreation center and in which beer was sold without an on-premise permit. The testimony of Officer Emory tends to show that there was a hole in the common wall shared by the store and the annex which was covered by a flag and through which, on at least one occasion, cases of beer were passed from the store into the annex. Based on such evidence, the hearing officer and the Commission could reasonably infer that beer from petitioner’s store was being sold in the recreation center, and that the store and the recreation center were in fact so interrelated as to constitute a single business.

Petitioner also contends the Commission erred in failing to allow him to present any further evidence at the hearing before it on 30 April 1982. There is nothing in the record before this Court which indicates that the Commission improperly disallowed any evidence tendered by petitioner at the hearing; therefore, this argument is meritless.

We hold the findings of fact, conclusions of law, and order of the respondent Commission are supported by competent, material and substantial evidence. The judgment of the superior court is affirmed in all respects.

Affirmed.

Judges BECTON and EAGLES concur.

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315 S.E.2d 531, 68 N.C. App. 638, 1984 N.C. App. LEXIS 3453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-alcoholic-beverage-control-commission-ncctapp-1984.

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