{
  "id": 8550358,
  "name": "NORTHEAST MOTOR COMPANY, INC., T/A HAPPY STORE #102 Petitioner v. N. C. STATE BOARD OF ALCOHOLIC CONTROL Respondent",
  "name_abbreviation": "Northeast Motor Co. v. N. C. State Board of Alcoholic Control",
  "decision_date": "1978-03-07",
  "docket_number": "No. 7710SC329",
  "first_page": "536",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T19:24:32.681632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Parker and Arnold concur."
    ],
    "parties": [
      "NORTHEAST MOTOR COMPANY, INC., T/A HAPPY STORE #102 Petitioner v. N. C. STATE BOARD OF ALCOHOLIC CONTROL Respondent"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nPetitioner\u2019s sole contention is that respondent Board of Alcoholic Control should have been estopped from instituting the subject proceedings against petitioner by reason of the plea bargaining agreement entered into in the related criminal action against Holloway. That agreement, entered into by the assistant district attorney and petitioner\u2019s employee Holloway, purported to prohibit the State from taking \u201cany further action by way of hearing before any court, board, or agency\u201d against either Holloway or petitioner. Thus, the issue presented by this appeal is whether the hereinabove quoted provision of the plea bargaining agreement was binding on the respondent Board of Alcoholic Control. We are of the opinion that it was not.\nAt the outset, we note that our Supreme Court has recognized the emergence of \u201cplea bargaining\u201d as a major component of the administration of criminal justice. State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976). However, the courts of this State have yet to confront the question of the scope and effect of plea bargaining agreements.\nIn Santobello v. New York, 404 U.S. 257, 30 L.Ed. 2d 427, 92 S.Ct. 495 (1971), the United States Supreme Court directed its attention to the disposition of criminal charges by agreement between the prosecutor and the accused and stated:\n\u201cThis phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.\u201d\nClearly, the Court\u2019s conclusion in Santobello is predicated upon the defendant\u2019s surrender of fundamental constitutional rights \u2014 effectuated by the entry of a plea of guilty or nolo con-tendere\u2014 in reliance upon the prosecutor\u2019s promise. See Brady v. United States, 397 U.S. 742, 25 L.Ed. 2d 747, 90 S.Ct. 1463 (1970). Thus, when a prosecutor fails to fulfill promises made to the defendant in negotiating a plea bargain, the defendant\u2019s constitutional rights have been violated and he is entitled to relief. San-tobello v. New York, supra. And the same is true even when the promises are not within the power of the prosecutor to make, and hence, are unfulfillable. Palermo v. Warden, Green Haven State Prison, 545 F. 2d 286 (2d Cir. 1976); United States v. Hammerman, 528 F. 2d 326 (4th Cir. 1975).\nThese cases focus on and firmly establish the necessity of according relief to the defendant when the prosecution breaches the plea bargaining agreement. In this result we concur. However, in the instant case we are not confronted by a defendant who, having entered a plea bargaining agreement, seeks relief for the breach thereof. Rather, we have before us a petitioner who was not a party to the plea bargaining agreement entered into by defendant Holloway and the assistant district attorney. Even so, our petitioner seeks to enforce a provision of that agreement which purports to bind respondent Board of Alcoholic Control \u2014 also not a party to the plea bargaining agreement in question.\nBased on these differences, which we believe substantially distinguish the instant case from those previously cited, we are unable to find that petitioner is entitled to the relief it seeks \u2014 specific performance of the provision purporting to bind respondent Board of Alcoholic Control. In the first instance, we are of the opinion that the assistant district attorney was without authority to bind the State\u2019s boards and agencies in the exercise of their administrative discretion without their consent. Respondent Board of Alcoholic Control is one of many independent quasi-adjudicative boards and agencies within the Executive Department. As such, it occupies an exclusive role within the framework of the state administration of justice and must remain free from hierarchal intrusion in the exercise of its administrative discretion. In so deciding, we expressly do not reach the questions of whether, and in what manner, an independent board or agency can bind itself to such an agreement in a criminal proceeding to which it is not a party.\nFinally, conceding that even the breach of an unauthorized promise entitles a defendant to relief, Palermo v. Warden, Green Haven State Prison, supra, we cannot find that the breach of the provision purporting to bind the respondent Board entitles petitioner to any relief. Petitioner\u2019s employee Holloway, not petitioner, agreed to forego his constitutional rights in reliance on the assistant district attorney\u2019s promises. Santobello v. New York, supra. Only he can now be heard to complain.\nIn the lower court\u2019s order affirming respondent Board\u2019s suspension of petitioner\u2019s ABC permits, we find no error.\nAffirmed.\nJudges Parker and Arnold concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General James Wallace, Jr., for the State.",
      "James, Hite, Cavendish & Blount, by Robert D. Rouse III, for the petitioner."
    ],
    "corrections": "",
    "head_matter": "NORTHEAST MOTOR COMPANY, INC., T/A HAPPY STORE #102 Petitioner v. N. C. STATE BOARD OF ALCOHOLIC CONTROL Respondent\nNo. 7710SC329\n(Filed 7 March 1978)\nCriminal Law \u00a7 23; Intoxicating Liquor \u00a7 2.3\u2014 plea bargain agreement not binding on State ABC Board\nThe State Board of Alcoholic Control was not estopped to suspend petitioner\u2019s ABC permits for knowingly selling beer to a minor by a plea bargain agreement in a criminal action against petitioner\u2019s employee based on his sale of beer to the minor in which the State agreed \u201cthat it will not take any further action by way of hearing before any court, board, or agency for any action arising out of this transaction against\u201d petitioner or its employee, since (1) the assistant district attorney who entered the agreement was without authority to bind the State\u2019s boards and agencies in the exercise of their administrative discretion without their consent, and (2) petitioner\u2019s employee, not petitioner, agreed to forego his constitutional rights in reliance on the assistant district attorney\u2019s promises and only he can properly complain of any breach of that agreement.\nAppeal by petitioner from Clark, Judge. Judgment entered 14 March 1977 in Superior Court, WAKE County. Heard in the Court of Appeals 8 February 1978.\nThis appeal arises out of proceedings instituted by respondent Board of Alcoholic Control against petitioner Happy Store No. 102 as a result of an alleged violation of the State alcoholic beverage control laws. On 24 May 1976, petitioner was notified to appear for a hearing before a hearing officer of the Board to show cause why its ABC permits should not be revoked or suspended for the following violation: (1) Knowingly selling malt beverages to a minor (person under 18 years of age), upon its licensed premises.\nAt the hearing, ABC Officer Danny Dilda testified that on 8 November 1975 he observed petitioner\u2019s employee George Holloway sell two six packs of beer to Joseph Scott Vickers, a minor, upon petitioner\u2019s licensed premises. On cross-examination of Dilda, evidence was elicited showing that a criminal action had been brought against Holloway based on his sale of beer to the minor. To this charge, Holloway had entered a plea of nolo con-tendere in Superior Court pursuant to a plea bargain which provided, in pertinent part, that \u201cthe State further agrees that it will not take any further action by way of hearing before any court, board, or agency for any action arising out of this transaction against [Holloway or petitioner].\u201d ABC Officer Dilda further testified that he had been present in court at the time of the plea bargaining, but that he had explicitly refused to agree to the condition prohibiting further action against petitioner. Finding that petitioner had in fact committed the alleged violation, the hearing officer recommended temporary suspension of petitioner\u2019s ABC permits.\nRespondent Board reviewed the recommendation of the hearing officer and approved his findings of fact, ordering that petitioner\u2019s ABC permits be suspended for 15 days.\nOn 3 September 1976, petitioner filed a petition in Superior Court asking that the Board\u2019s proceedings and order be reviewed. The petition was granted and upon hearing, the court affirmed respondent Board\u2019s order. Petitioner appealed to this Court.\nAttorney General Edmisten, by Assistant Attorney General James Wallace, Jr., for the State.\nJames, Hite, Cavendish & Blount, by Robert D. Rouse III, for the petitioner."
  },
  "file_name": "0536-01",
  "first_page_order": 564,
  "last_page_order": 567
}