Can the ABC Commission settle an administrative case against a permittee by accepting an offer in compromise that includes restitution paid to a local ABC board, when the permittee has been charged with refilling mixed-beverages liquor containers without paying the mixed-beverages surcharge?

Plain-English summary

The ABC Commission asked whether it could settle a charge of refilling mixed-beverages liquor containers with an offer in compromise that included restitution to local ABC boards. The AG answered no: N.C.G.S. § 18B-104 did not authorize the Commission to enter that kind of settlement.

The opinion says § 18B-104 listed the Commission's administrative penalties: suspending or revoking a permit, imposing a monetary penalty, or suspending a permit and imposing a fine. It also allowed a monetary compromise payment, with all collected fines and penalties remitted to the State Treasurer for the General Fund. Restitution was absent. The AG contrasted N.C.G.S. § 18B-505, under which law enforcement could be awarded restitution in criminal cases. The opinion says the legislature would have given the Commission specific authority if it intended Commission-collected restitution for local boards.

This answer is about the Commission's authority. The opinion does not decide whether a local board can recover losses in a civil suit or criminal case, and it does not say that § 18B-505 pays restitution to local boards.

Currency note

This opinion interprets Chapter 18B as it stood in 1996. Check the current statutes before assessing the Commission's authority in a new case.

Background and statutory framework

The request concerned an offer from a permittee charged with refilling containers with liquor on which the mixed-beverages surcharge had not been paid. The AG read the administrative penalty and compromise provisions of § 18B-104 alongside the separate criminal restitution provision in § 18B-505. The required General Fund destination for Commission-collected fines and penalties reinforced the conclusion that a Commission settlement could not direct restitution to a local ABC board.

Common questions

Could the Commission accept restitution to a local ABC board as part of this compromise?

No. The AG found no statutory authority for that term in the Commission's settlement.

Who does § 18B-505 name as a possible restitution recipient?

The opinion says law enforcement may be awarded restitution in criminal cases under that section. It does not say local ABC boards receive that payment.

Does the opinion tell a local board how to recover a loss?

No. It addresses only whether the Commission could accept the proposed restitution term. It does not evaluate a local board's civil remedies or proper role in a criminal case.

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-the-commission-to-accept-restitution/

Citations

• N.C.G.S. § 18B-104 (Commission penalties and compromise)
• N.C.G.S. § 18B-505 (criminal restitution described in the opinion)

Original opinion text

January 4, 1996

Marvin L. Speight, Jr., Chairman Alcoholic Beverage Control Commission Post Office Box 26687 Raleigh, North Carolina 27611-6687

Re: Advisory Opinion; N.C.G.S. § 18B-104; Authority of the Commission to Accept Restitution

Dear Mr. Speight:

By request submitted on January 3, 1996, the Commission has inquired as to its statutory authority to accept from a permittee, who has been charged with refilling mixed beverages liquor containers with liquor on which the mixed beverages surcharge has not been paid, an offer in compromise which includes restitution to local ABC boards. Based upon our reading of N.C.G.S. § 18B-104 and Chapter 18B in general, it is our opinion that there exists no statutory authority which would allow the Commission to enter into such settlement agreements.

The Legislature specified the administrative penalties available to the Commission in N.C.G.S. § 18B-104 and clearly provided that the Commission may suspend a permit, revoke a permit, impose a monetary penalty, or suspend a permit and impose a fine. This statute further allows the Commission to accept a monetary payment from the permittee as a compromise, with all fines and penalties collected being remitted by the Commission to the State Treasurer for the General Fund. Notably absent from this penalty statute is any mention of restitution. One would have to conclude that this omission is intentional since the Legislature has provided for restitution elsewhere in Chapter 18B, i.e. law enforcement may be awarded restitution in criminal cases pursuant to N.C.G.S. § 18B-505. More significant, however, is the legislative mandate that all fines and penalties shall be allocated to the General Fund. Had the legislature intended for the Commission to collect restitution for the local boards, it would have specifically provided the Commission with such authority.

Should you or any member of the Commission have any questions regarding this letter, please do not hesitate to contact this office.

Andrew A. Vanore, Jr. Chief Deputy Attorney General

Robin P. Pendergraft Special Deputy Attorney General Law Enforcement Liaison Section