{
  "id": 12136193,
  "name": "ED FORD d/b/a EDCO AMUSEMENT CO., Plaintiff/Appellant v. STATE OF NORTH CAROLINA, Department of Crime Control and Public Safety, Division of Alcohol Law Enforcement, Defendant/Appellee",
  "name_abbreviation": "Ford v. State",
  "decision_date": "1994-07-19",
  "docket_number": "No. 9330SC989",
  "first_page": "556",
  "last_page": "559",
  "citations": [
    {
      "type": "official",
      "cite": "115 N.C. App. 556"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "317 S.E.2d 59",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1984,
      "pin_cites": [
        {
          "page": "60-61"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "69 N.C. App. 331",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8526249
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "333"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/69/0331-01"
      ]
    },
    {
      "cite": "372 S.E.2d 342",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1988,
      "pin_cites": [
        {
          "page": "345"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "91 N.C. App. 459",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525947
      ],
      "year": 1988,
      "pin_cites": [
        {
          "page": "464"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/91/0459-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 493,
    "char_count": 8102,
    "ocr_confidence": 0.715,
    "pagerank": {
      "raw": 6.112460285080146e-08,
      "percentile": 0.3809281931108725
    },
    "sha256": "c933e4d6deec2d5348cbf0d8e3c76964f9a71be6050c4ef3dd368d1d7adb5841",
    "simhash": "1:1fe0e24779fdbed7",
    "word_count": 1235
  },
  "last_updated": "2023-07-14T22:58:18.676868+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges WELLS and JOHNSON concur."
    ],
    "parties": [
      "ED FORD d/b/a EDCO AMUSEMENT CO., Plaintiff/Appellant v. STATE OF NORTH CAROLINA, Department of Crime Control and Public Safety, Division of Alcohol Law Enforcement, Defendant/Appellee"
    ],
    "opinions": [
      {
        "text": "JOHN, Judge.\nPlaintiff, a video game distributor, instituted this action seeking injunctive and compensatory relief based upon defendant\u2019s declaration that certain types of video machines violated North Carolina\u2019s criminal gambling laws. Plaintiff contends the trial court erred by granting defendant\u2019s motion for summary judgment \u2014 thereby dismissing plaintiff\u2019s action. We are not persuaded by plaintiff\u2019s argument and thus affirm the decision of the trial court.\nOn 1 November 1991, the Alcoholic Beverage Control Commission (\u201cABC Commission\u201d) issued a memorandum indicating that in the ABC Commission\u2019s opinion certain video machines were in violation of state gambling laws, specifically N.C.G.S. \u00a7 14-306. On 4 November 1991, defendant Division of Alcohol Law Enforcement (\u201cALE\u201d - a division of the Department of Crime Control and Public Safety) distributed a similar memorandum to its supervisors. ALE specified those video machines considered violative of G.S. \u00a7 14-306 and advised all ALE supervisors that, on or after 1 December 1991, criminal and administrative charges would be brought if such machines were possessed or operated on licensed ABC premises. ALE agents were directed to notify affected businesses of the policy and to allow an opportunity for compliance therewith.\nPlaintiff, the owner of approximately 30 \u201cLucky Eight\u201d video machines, had distributed them to various businesses throughout Buncombe, Haywood and Transylvania Counties. After learning of the ABC Commission and ALE position, plaintiff filed the present lawsuit alleging defendant ALE \u201cattempted to promulgate certain rules and regulations in violation of the North Carolina Administrative Procedures Act.\u201d\nDefendant answered by denying all material allegations and moving to dismiss the complaint. It also counterclaimed, seeking a declaration that plaintiff\u2019s video machines were illegal slot machines. On 30 March 1993, defendant moved for (1) summary judgment on plaintiff\u2019s claim and (2) partial summary judgment on its counterclaim. On 25 June 1993, the trial court entered summary judgment dismissing plaintiffs claim, but denied defendant\u2019s motion as regards its counterclaim.\nThe sole assignment of error presented is directed at the trial court\u2019s allowance of defendant\u2019s motion for summary judgment. Plaintiff argues the memoranda issued by ALE and the ABC Commission constituted a \u201crule\u201d within the meaning of the North Carolina Administrative Procedures Act. N.C.G.S. \u00a7 150B-1 to -64 (1991) (\u201cAPA\u201d). See G.S. \u00a7 150B-2(8a). He further claims this attempted \u201crule\u201d was invalid because neither agency complied with APA\u2019s rule promulgation requirements. See G.S. \u00a7 150B-18 to -21.7. We find plaintiff\u2019s assertions unfounded.\nInitially we note the ABC Commission is not a party to this action and thus the propriety of its 1 November 1991 memorandum is not before us. Consequently, we need consider only whether the 4 November 1991 memorandum issued by ALE to its supervisors constituted a \u201crule\u201d under the APA. The APA defines this term as follows:\n\u201cRule\u201d means any agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. The term includes the establishment of a fee and the amendment or repeal of a prior rule. The term does not include the following:\n* * * *\nc. Nonbinding interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning of a statute or rule.\n* * *\ng. Statements that set forth criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspections; in settling financial disputes or negotiating financial arrangements; or in the defense, prosecution, or settlement of cases.\nG.S. \u00a7 150B-2(8a) (emphasis added).\nThe proper interpretation of APA statutory provisions, as with any statute, presents a question of law. See Brooks, Com\u2019r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 464, 372 S.E.2d 342, 345 (1988). Where a particular claim can be decided by examination of an issue of law, summary judgment is proper. See Gray v. Hagar, 69 N.C. App. 331, 333, 317 S.E.2d 59, 60-61 (1984).\nIn the case sub judice, the alleged \u201crule\u201d consisted of a memorandum written by Donald M. Murray, Director of ALE, and addressed to ALE supervisors. Murray set forth ALE\u2019s interpretation that \u201cvideo poker\u201d and similar video machines were in violation of G.S. \u00a7 14-306. Further, Murray directed ALE supervisors to instruct agents to visit ABC licensed businesses known to possess such machines and to inform proprietors of the agency\u2019s position. On these facts, the APA simply has no application.\nALE is a law enforcement agency. See N.C.G.S. \u00a7 18B-500 (1989). Although ALE agents may investigate any criminal offense, their primary duty is enforcement of state ABC laws and the Controlled Substances Act. Id. In performing this duty, agents possess specific statutory authority to inspect ABC licensed premises and to gather evidence concerning violation of ABC laws, see G.S. \u00a7 18B-502, including prohibition of gambling devices on ABC licensed premises. N.C. Admin. Code tit. 4, 2s .0207 (August 1992).\nThe memorandum at issue sub judice constituted nothing more than a \u201csetting forth\u201d of \u201cguidelines\u201d to be followed when investigating and prosecuting violations of state law, and a \u201cnonbinding interpretative statement\u201d that possession or operation of certain video machines on ABC licensed premises transgressed that law. As such, the memorandum fell squarely within the meaning of G.S. \u00a7\u00a7 150B-2(8a)(c) and (8a)(g), and therefore did not constitute a \u201crule.\u201d\nWhile the ALE memorandum establishes a \u201cnotification\u201d and \u201ccompliance\u201d procedure, the record contains no suggestion of a requirement that ALE notify ABC permittees prior to charging a violation of state gambling laws. Under the circumstances of the case sub judice, such advance warning to licensees is to be commended as it furthers amicable relations between business and government. However, the mere fact of \u201cadvance warning\u201d does not constitute a \u201crule\u201d under the APA. ALE is a law enforcement agency, and its internal guidelines (whether distributed to the public or not) for enforcement of the criminal law do not come within the purview of the APA.\nAccordingly, we conclude that the trial court properly granted defendant\u2019s motion for summary judgment.\nAffirmed.\nJudges WELLS and JOHNSON concur.\nJudge WELLS concurred prior to 30 June 1994.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "Russell L. McLean, III for plaintiff-appellant.",
      "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "ED FORD d/b/a EDCO AMUSEMENT CO., Plaintiff/Appellant v. STATE OF NORTH CAROLINA, Department of Crime Control and Public Safety, Division of Alcohol Law Enforcement, Defendant/Appellee\nNo. 9330SC989\n(Filed 19 July 1994)\nIntoxicating Liquor \u00a7 31 (NCI4th)\u2014 video machines on ABC licensed premises \u2014 violation of gambling laws \u2014 ALE memorandum not a rule \u2014 APA rulemaking procedures inapplicable\nA memorandum distributed by the Division of Alcohol Law Enforcement to its supervisors that \u201cvideo poker\u201d and similar video machines were in violation of state gambling laws, specifically N.C.G.S. \u00a7 14-306, and that possession or operation of those video machines on ABC licensed premises was unlawful, did not constitute a \u201crule\u201d which required compliance with the Administrative Procedure Act\u2019s rule promulgation requirements, but instead constituted nothing more than a setting forth of guidelines to be followed when investigating and prosecuting violations of state law, and a nonbinding interpretive statement that possession or operation of certain video machines on ABC licensed premises transgressed that law.\nAm Jur 2d, Intoxicating Liquors \u00a7\u00a7 34 et seq.\nAppeal by plaintiff from order entered 25 June 1993 by Judge Forrest A. Ferrell in Haywood County Superior Court. Heard in the Court of Appeals 9 May 1994.\nRussell L. McLean, III for plaintiff-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for defendant-appellees."
  },
  "file_name": "0556-01",
  "first_page_order": 588,
  "last_page_order": 591
}