Porter v. State Board of Alcoholic Control

166 S.E.2d 695, 4 N.C. App. 284, 1969 N.C. App. LEXIS 1485

• Court: Court of Appeals of North Carolina
• Decided: April 2, 1969
• Docket: No. 6910SC70
• Status: Published

Opinion

Britt, J.

G.S. 143-307 provides:

“§ 143-307. Right to judicial review. —- Any person who is aggrieved by a final administrative decision, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this article, unless adequate procedure, for judicial review is provided by some other statute, in which case the review shall be under such other statute. Nothing in this chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this article.” (Emphasis added.)

We are unable to distinguish the legal principles involved in Sinodis v. Board of Alcoholic Control, 258 N.C. 282, 128 S.E. 2d 587, from those presented by this appeal. Although the facts in Sinodis differed somewhat from those in this case, the procedures before respondent Board in both cases were almost identical. In Sinodis, the Supreme Court held that inasmuch as petitioners did not request a hearing by the Board, their application for judicial review would be dismissed. We quote from the opinion by Rodman, J.: “* * * Only those who have exhausted their administrative remedies can seek the benefit of the statute. G.S. 143-307. [Numerous citations.]”

In Sinodis, the Supreme Court determined that respondent Board, acting pursuant to the authority conferred by G.S. 18-138, promulgated rules governing hearings and that copies of such rules were, as required by G.S. 143-195, filed with the Secretary of State on 20 September 1956. Again we quote from the opinion, at page 286:

“* * * Rules 12 and 13 provide:

‘12. When an applicant or permittee makes written request for an additional hearing before the full Board, the Chairman shall cause him to be given at least ten days written notice of the time and place of a Board meeting at which he may be heard.

T3. Upon such hearing, the Board shall consider the record of the hearing before the hearing officer and may take such additional evidence for or against the applicant or permittee as may be presented. The Board may limit the introduction of evidence which is irrelevant or immaterial or which is merely cumulative and may limit the time permitted for oral argument. All testimony shall be taken under oath or affirmation and recorded. All objections to evidence or procedure, rulings thereon, and exceptions thereto shall be entered in the record.’

In our opinion the rules as promulgated correctly interpret the statute. They accord a permittee full opportunity to show want of merit in the charges which, if true, would warrant revocation of his permit.”

In the case before us, after the hearing was held before the hearing officer, at which time petitioner and her attorney were present and participated in the hearing, the hearing officer advised petitioner and her attorney in writing that his findings of fact and recommendation would be presented to respondent Board at its meeting in Raleigh on 6 May 1968 at 10:00 a.m. As was true in Sinodis, petitioner did not request a hearing by respondent Board, a right expressly accorded her. Hence her application for judicial review must be dismissed. G.S. 143-307; Sinodis v. Board of Alcoholic Control, supra; In re Employment Security Com., 234 N.C. 651, 68 S.E. 2d 311; In re Revocation of License of Wright, 228 N.C. 301, 45 S.E. 2d 370.

Reversed.

MallaRd, C.J., and Pareer, J., concur.