Watkins v. State Board of Alcoholic Control

BROCK, Judge. There is no substantial evidence in the record before us to support the Board’s finding “that the permittee, through his employee, did fail to give the retail licensed premises proper supervision on or about May 25, 1971 at 9:15 a.m. G.S. 18-78.” Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E. 2d 582. With the exception of evidence tending to show that on this single occasion two bottles of wine were sold for off-premises consumption to Haywood Lee Clay, a person alleged to have been intoxicated, all of the evidence was to the contrary. The uncontradicted evidence was that permittee had held beer and wine permits since April, 1964, and that the Board had never had any occasion to warn or accuse the permittee of a single violation of its rules prior to the instant case. There is nothing to suggest that petitioner’s employee, Roy Ennis, was subject to any of the disqualifications enumerated in G.S. 18-78 (repealed effective 1 October 1971 and in part reenacted as G.S. 18A-48). The uncontradicted evidence was that the employee had been instructed not to sell beer or wine to a person who was intoxicated and that he had refused to sell beer or wine to persons who were intoxicated. The evidence discloses that the employee was well acquainted with Clay and had refused to sell Clay wine when he felt that Clay was intoxicated. We note that the charge of public drunkenness, lodged against Clay by the Board’s only witness, Pridgeon, was nol-prossed. The uncontradicted evidence was that Clay was a disabled war veteran with bullet wounds in his head and leg; [22] that his eyes stay red and “be running”; that he has received treatment at the Veterans Hospital for his eyes and that as a result of three bullet wounds in his leg, it always “drags behind.” The permittee’s employee testified: “ ... On the morning of May 25, 1971 when Mr. Clay came in, there wasn’t much conversation held; something about a pretty day or nice weather. He went back and got the wine and come up and laid the money down and left. I’ve seen Mr. Clay in there several times; he comes in quite often to buy wine. In my opinion he was not intoxicated. I observed him walking; he walked to the walk-in cooler and then come back toward me. I was at the counter. He got his own wine. No staggering. I knew Mr. Clay had a bad walk. I don’t think he had drunk anything that morning. I did not get close enough to smell his breath. His eyes were red and watery like they always are. He didn’t have any worse walk than usual; his foot drags behind. . . . There was nothing to create in my mind any impression that this man was under the influence of any alcohol.” To paraphrase the Supreme Court in Food Stores v. Board of Alcoholic Control, supra, surely a sale of wine on one occasion to a person under the circumstances described by the record in this case is not a failure to give the licensed premises proper supervision. In a separate count, the Board charged the permittee with “knowingly selling . . . wine to Haywood Lee Clay, a person in an intoxicated condition . . . . ” We do not concede that when the “whole record test” is applied that this record would support a finding that permittee violated former G.S. 18-78.1(2), which makes it unlawful to “knowingly sell such beverages to any person while such person is in an intoxicated condition.” (Emphasis added.) We need not, however, make a determination as to whether the whole record would sustain such a finding for the reason that, in fact, the Board did not so find. The Board found only that “[f]rom material and credible evidence, it is a concluded fact that the permittee did allow the sale of wine to Haywood Lee Clay, through his employee, Roy Wilson Ennis, Jr. and Haywood Clay being a person in an intoxicated condition on the retail licensed premises on or about May 25, 1971 at 9:15 a.m. in violation of G.S. 18-78.1(2).” Only a finding [23] that the permittee or his employee knowingly sold the wine to an intoxicated person would be sufficient to sustain the order suspending the permit. In our opinion the Board’s “concluded fact” is insufficient to show a violation of the statute under which the Board was proceeding, G.S. 18-78.1(2) [now G.S. 18A-34(a) (2)]. Reversed. Judge Vaughn concurs. Judge Hedrick dissents.