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Pie v. North Carolina Board of Alcoholic Control

Filed: February 2, 1982.

PIE IN THE SKY, LTD. T/A P. B. SCOTT'S RESTAURANT AND MUSIC HALL, PETITIONER
v.
NORTH CAROLINA BOARD OF ALCOHOLIC CONTROL, RESPONDENT AND THE TOWN OF BLOWING ROCK, INTERVENOR-RESPONDENT



Appeal by North Carolina Board of Alcoholic Control and the Town of Blowing Rock from Farmer, Judge. Order entered 9 December 1980 in Superior Court, Wake County. Heard in the Court of Appeals 20 October 1981.

Whichard, Judge. Judges Vaughn and Hill concur.

Whichard

Respondents' Appeal

The 1965 General Assembly, by local act, authorized the Town of Blowing Rock to hold elections on the sale of beer and wine, by making then G.S. 18-127, the general law at that time, partially applicable to Blowing Rock. 1965 Sess. Laws, ch. 874, § 1. On 3 August 1965, in an election held pursuant to that act, the voters approved on-premise sale of beer and wine by Grade A hotels and restaurants, and off-premise sale of unrefrigerated wine and beer by qualified licensees.

The 1971 General Assembly repealed former General Statutes Chapter 18, the general law governing regulation of intoxicating liquors, and replaced it with a new Chapter 18A.*fn1 1971 Sess. Laws, ch. 872. On 1 November 1976 the Board of Alcoholic Control, pursuant to its power to adopt rules and regulations to carry out the provisions of G.S. 18A,*fn2 amended Malt Beverage Regulation 4 NCAC 2E .0102 by defining the word "restaurant" as follows: "a regularly established place of business primarily and substantially engaged in the preparation and serving of meals, wherein food is kept, prepared and served to the public and which has and maintains tables and appropriate equipment and furnishings for serving of complete meals to customers." The 1977 General Assembly thereafter enacted G.S. 18A-52(k), which defined a "restaurant" as "a business having a kitchen facility and a seating capacity of 36 persons or greater and which is engaged

primarily and substantially in preparing and serving meals." 1977 Sess. Laws, ch. 149, § 1. The act applied "to those counties or municipalities wherein elections are held under G.S. 18A-52 subsequent to the ratification of this act [4 April 1977]." Id. § 2.

On 25 April 1977, subsequent to enactment of G.S. 18A-52(k), an election petition was circulated and notice was posted "pursuant to . . . G.S. 18A-52, Part 2(c)," seeking an election in Blowing Rock. In the election held pursuant thereto on 14 July 1977, the voters approved on-premise sale of malt beverages by Grade A hotels and restaurants and off-premise sale by other licensees.

Petitioner, operator of P. B. Scott's Restaurant and Music Hall in Blowing Rock, acquired on-premise malt beverage and unfortified wine permits on 1 October 1976. It acquired a "restaurant and related places" permit on 5 October 1976. On 5 June 1979 a Board of Alcoholic Control hearing officer recommended revocation of these permits on the ground that petitioner could "no longer be considered qualified to hold permits due to not being a 'bona fide restaurant' as defined in G.S. 18A-52(j)*fn3 and (k) and in Malt Beverage Regulation 4 NCAC 2 E .0102(5) as amended." The Board of Alcoholic Control then ordered the permits cancelled on the ground that petitioner was not a "bona fide restaurant" as defined in the statutes and regulation cited by the hearing officer.

On judicial review, pursuant to G.S. 150A-43 et seq. (Cum. Supp. 1977), the Superior Court reversed on the ground that "the 1965 General Law" was the basis for the 1965 and 1977 elections, and the "1976 regulation and 1977 statutes" do not apply to the municipality of Blowing Rock. We disagree, and accordingly reverse.

By express legislative enactment, G.S. 18A-52(k) applies "to those . . . municipalities wherein elections are held under G.S. 18A-52 subsequent to the ratification of this act." 1977 Sess. Laws, ch. 149, § 2 (emphasis supplied). The act was ratified 4 April 1977. 1977 Sess. Laws, ch. 149. Blowing Rock held an election pursuant to G.S. 18A-52 on 14 July 1977, a date subsequent to ratification of the act which established G.S. 18A-52(k). By so doing, it subjected establishments therein to regulation under that enactment.

The avowed purpose and intent of the General Assembly in the enactment of G.S. 18A was "to establish a uniform system of control over the sale, purchase, . . . and possession of intoxicating liquors in North Carolina, and to provide administrative procedures to insure, as far as possible, the proper administration of [the] Chapter under a uniform system throughout the State." G.S. 18A-1. The legislature mandated that G.S. 18A "shall be liberally construed to the end that the sale, purchase, . . . and possession of intoxicating liquors shall be prohibited except as authorized in [that] Chapter." Id. Our interpretation of the ...


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