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