STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 00 ABC 1362

NORTH CAROLINA ALCOHOLIC )

BEVERAGE CONTROL COMMISSION, )
Petitioner, )
v. )
) RECOMMENDED DECISION
CHARLES KEITH HOBBY, PRESIDENT )
T/A THE BREWERY )
Respondent. )

This contested case was heard before James L. Conner II, Administrative Law Judge, on
December 19, 2000 in Raleigh, North Carolina.

APPEARANCES:

Petitioner: Fred A. Gregory, Esq.

Respondent: Charles Kenneth Hobby, appearing pro se

FINDINGS OF FACT

1. The parties stipulated on the record that each had received notice of hearing by certified mail
at least 15 days prior to the hearing and that notice was proper.

2. Petitioner’s The Brewery is located at 3009 Hillsborough Street in Raleigh, North Carolina.
Petitioner holds an on-premises beer ABC permit for this business.

3. On Sunday June 25, 2000, Alcohol Law Enforcement Agents C.A. Joyner and Bryan L.
House visited Respondent’s premises for a covert outlet check. The agents arrived shortly
after midnight. The agents used their identifications and were not undercover.

4. The premises were fairly crowded that night. There was a live band playing, and it was a
relatively young crowd, meaning mostly people in their mid-20s.

5. The agents observed a man who appeared to be underage purchase and then take a drink of a
beer. They inquired of the bartender, one Lora Lee Johnson, and she confirmed that she had
just sold the young man a Corona beer.

6. The agents approached the young man and asked to see identification. He acted fearful and
hesitant, but produced a Florida driver’s license with his picture on it and showing a birth
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date of 03-26-79, which would have made him 21 years old. The license was issued in the
name of Mathew Alexander Ball. (Pet. Exh. 1)

7. The agents were still suspicious and asked for other identification. He declined to produce
any. They took him outside to their car for the purpose of calling in his name to determine
whether he held a North Carolina driver’s license and his age. Faced with this prospect, he
produced a North Carolina driver’s license showing his true age to be seventeen and his name
to be Eric Perry.

8. Perry had produced this same Florida driver’s license to the Brewery employee checking IDs
at the door. The employee, in response, stamped Perry’s hand to indicate that he was 21 or
over and could buy beer. Perry showed this hand stamp to the bartender when buying the
Corona beer.

9. The Brewery uses a program designed to avoid inadvertent selling of beer to underage
patrons. IDs are checked for all persons seeking to enter. Those persons producing a photo
ID showing the person to be over 21 receive a single, small hand stamp no more than one-
half inch wide. Those patrons who are underage receive a large, prominent stamp two inches
in diameter on both hands. Having the stamp on both hands is designed not only to prevent
the underage patrons from buying beer, but also from being given beer to drink by others. If
underage patrons are given beer, the stamp will be visible as they drink, no matter which
hand they use. If the stamps wash off, the bartenders are instructed to send the patron back to
the door to have his ID checked again and hand(s) re-stamped.

10. By Agent’s Joyner’s testimony, lighting was adequate around the bar for the bartender to
observe the hand-stamps.

11. Agent Joyner also testified to two or three other methods of avoiding underage drinking at
venues with mixed clientele, including Walnut Creek and Alive After Five. Both involved
armbands instead of hand-stamps. One involved checking IDs again at the point of beer sale.
Neither, however, would have caught a person like Mr. Perry who had an apparently valid ID
with his own picture on it and showing him to be of sufficient age to purchase beer. In any
event, Respondent volunteered in open court to work with ALE Agents to institute a program
at The Brewery that the Agents would find satisfactory.

12. The court finds as a fact that Perry’s Florida ID, though in fact false, gives every appearance
of being real. Neither Agent Joyner’s testimony nor any other evidence pointed up any
difference between the ID Perry used and a real Florida driver’s license.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. The applicable statute provides that one defense to a charge of allowing underage drinking
against a license holder, such as the charge before this court is:
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Defense. – It shall be a defense to a violation of subsection (a) of this section if the seller:

(1) Shows that the purchaser produced a driver’s license, a special identification card
issued under G.S. 20-37.7, a military identification card, or a passport, showing his
age to be at least the required age for purchase and bearing a physical description of
the person named on the card reasonably describing the purchaser; or

(2) Produce evidence of other facts that reasonably indicated at the time of sale that the
purchaser was at least the required age.

N.C. Gen. Stat. §18B-302(d).

3. The instant case falls squarely within the statutory defense, and the Respondent must
therefore be found not in violation of the ABC statute and regulations.

RECOMMENDED DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
recommended that the ABC Commission dismiss the charge against Respondent as falling
squarely within the statutory defense at N.C. Gen. Stat. §18B-302(d).

ORDER

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of
Administrative Hearings, P.O. Drawer 27747, Raleigh, N.C. 27611-7447, in accordance with
North 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. G.S. 150B-36(a).

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

The agency that will make the final decision in this contested case is the North Carolina
Alcoholic Beverage Control Commission.

This the 31st day of January, 2001.

____________________________________
James L. Conner II
Administrative Law Judge