Pie in the Sky, Ltd. v. North Carolina Board of Alcoholic Control
Pie in the Sky, Ltd. v. North Carolina Board of Alcoholic Control
Opinion of the Court
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The 1971 General Assembly repealed former General Statutes Chapter 18, the general law governing regulation of intoxicating liquors, and replaced it with a new Chapter 18A.
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)
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.
PETITIONER’S CROSS ASSIGNMENT
Petitioner alleged, in its Petition for Judicial Review pursuant to G.S. 150A-43 et seq., unreasonable and arbitrary action by respondent Board in the cancellation of its permits. The basis of these allegations was that the Board, on the same day it revoked petitioner’s permits, dealt differently with other Blowing Rock businesses similar to petitioner’s which were charged with the same types of violations. Petitioner, pursuant to App. R. 10(d), cross assigns error to the order granting respondent Board’s motion to strike these allegations. We find no error.
The Board heard sequentially petitioner’s case and the cases referred to in these allegations. Evidence from the other cases thus was not before the Board by virtue of consolidation of these cases with petitioner’s case. Petitioner does not contend, nor does the record reveal, that evidence or arguments regarding the other cases had been placed before the Board in any way when it concluded that petitioner’s permits should be revoked. On judicial review of agency decisions the court hears arguments and receives written briefs, but it “shall take no evidence not offered at the hearing . . . .” G.S. 150A-50 (Cum. Supp. 1977). Because the allegations regarding the Board’s disposition of other cases related to matters not in evidence at petitioner’s hearing, and because the court could not consider evidence not offered at that hearing, the allegations were properly stricken.
In respondents’ appeal, reversed and remanded for further proceedings consistent with this opinion.
As to petitioner’s cross-assignment, affirmed.
. Chapter 18A, which applies in this appeal, was repealed and replaced by Chapter 18B effective 1 January 1982.
. G.S. 18A-15G4) (Cum. Supp. 1977).
. G.S. 18A-52(j) relates to unfortified wine and malt beverage elections.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.