# Hart v. Ivey

> Court of Appeals of North Carolina · May 7, 1991 · 102 N.C. App. 583

URL: https://www.frixlaw.com/law-library/cases/9854471

## Case

- **Full name:** SANDRA L. HART and ROGER J. HART, Plaintiffs v. HOWARD L. IVEY, JR. and JOHN ROSENBLATT and DAVID KING and DAVID HOWELL and MIKE’S DISCOUNT BEVERAGE, INC., Defendants and JOHN DENNIS LITTLE, JR. and JOHN DENNIS LITTLE, SR., Defendants and Third-Party Plaintiffs v. HOWARD L. IVEY, JR., Third-Party Defendant
- **Court:** Court of Appeals of North Carolina
- **Decided:** May 7, 1991
- **Citations:** 102 N.C. App. 583; 403 S.E.2d 914; 1991 N.C. App. LEXIS 471
- **Precedential status:** Published
- **Opinion:** Dissent by Lewis
- **Judges:** Orr, Greene, Lewis
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9854471

## Opinion text

Judge LEWIS
dissenting.
I dissent because I believe the majority is legislating.
The majority extends Hutchens v. Hankins, 63 N.C. App. 1 , 303 S.E.2d 584 (1983), in holding that N.C.G.S. § 18B-302 imposes liability in tort on non-commercial social hosts who provide alcoholic beverages to minors. N.C.G.S. § 18B-302(a)(l) in pertinent part provides:
Sale to or purchase by underage persons
(a) Sale —It shall be unlawful for any person to
(1) Sell or give malt beverages or unfortified wine to anyone less than 19 years old; . . .
The majority alternatively bases the defendant’s liability on the fact that section (b) of the statute prohibits any underaged minor from “possession” of an alcoholic beverage and section (c) prohibits “any person” from aiding or abetting a minor in violating section (b). N.C.G.S. § 18B-302.
On close reading of this statute, I cannot conclude that the statute unambiguously prohibits non-commercial social hosts from providing malt beverages to underaged persons. In interpreting any statute, legislative intent is controlling and can be ascertained from the phraseology of the statute, the nature and purpose of the act, and the consequences which would flow from its interpretation. Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303 , 354 S.E.2d 495, 498 (1987). This particular statute is part of Chapter 18B of the North Carolina General Statutes which addresses “Regulation of Alcoholic Beverages.” The purpose of Chapter 18B is “to establish a uniform system of control over the sale, purchase, transportation, manufacture, consumption and possession of alcoholic beverages in North Carolina. . . .” N.C.G.S. § 18B-100. The section at issue, 18B-302, is entitled “Sale to or purchase by underage persons.” The specific subsection being addressed in this case is entitled “Sale.” N.C.G.S. § 18B-302(a)(l). Furthermore, subsection *596 (d) of 18B-302 provides statutory defenses for a “seller” of alcoholic beverages but no such defenses are indicated for a social host.
In 1983 this statute was amended by the legislature as part of an extensive modification of the statutes regulating alcoholic beverages and the related problems of intoxicated drivers. The Safe Roads Act includes the Dram Shop Act, N.C.G.S. § 18B-120, et seq. This Act does allow a potential claim against the individual who sold or furnished the alcohol, but only against the “permittee” or “Local Alcohol Beverage Control Board.” N.C.G.S. § 18B-121. It specifically excludes holders of Special Occasion Permits, Limited Special Occasion Permits, and Special One-Time Permits. N.C.G.S. § 18B-125. These frequently include social hosts. An incongruous result of the majority opinion is that social hosts can insulate themselves by obtaining one of these special or limited permits.
Words and phrases of a statute may not be interpreted out of context; rather, individual expressions must be interpreted as part of a composite whole, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute. Jolly v. Wright, 300 N.C. 83, 86 , 265 S.E.2d 135, 137 (1980) (citations omitted). In the context of the statutory structure as a whole the prohibition against the providing of alcohol to a minor by “any person” in N.C.G.S. § 18B-302 (a)(1), as well as the prohibition against aiding and abetting any minor in the possession of alcohol in section (c), are at best ambiguous in application to non-commercial social hosts. It is a longstanding rule of construction in this jurisdiction that criminal statutes are to be strictly construed against the state and any ambiguity is to be resolved in favor of a defendant. State v. Martin, 7 N.C. App. 532, 534 , 173 S.E.2d 47, 48 (1970) (citations omitted). Where a statute does not apply for the purpose of criminal liability it cannot serve as the basis for liability in tort. See Hutchens v. Hankins, 63 N.C. App. 1, 16 , 303 S.E.2d 584, 593-94 (1983).
Where a statute specifies the acts to which it applies, an intention to exclude all others from its operation may be inferred. Jolly v. Wright, 300 N.C. 83, 89 , 265 S.E.2d 135, 140 (1980). In holding otherwise, the majority is extending the application of the statute to a class of persons to which the statute cannot clearly be held to apply. The rationale employed by the majority can be applied to extend liability to social hosts who serve alcoholic beverages to intoxicated adults under N.C.G.S. § 18B-305(a), even though *597 that statute is entitled “Sale to Intoxicated Person” and applies to social hosts no more than any other statute of this section. In the absence of clear legislative intent, statutes imposing penalties should not be extended by judicial construction. Winston Salem Joint Venture v. City of Winston Salem, 54 N.C. App. 202, 205 , 282 S.E.2d 509, 511 (1981).
In Skinner v. Whitley, 281 N.C. 476, 484 , 189 S.E.2d 230, 235 (1972), in which the administrator for an unemancipated minor sought the abolition of parent-child immunity, a unanimous court held that “piecemeal abrogation of established law by judicial decree is like partial amputation, ordinarily unwise and usually unsuccessful.” In the same opinion, the court said: “the simplest way to effectuate a change in the law is to enact a statute doing so. The courts have frequently said that the question of public policy is to be determined by the legislature and not by the court.” Id.
I agree entirely with the majority that it is reprehensible for anyone to give or sell alcoholic beverages to minors. I abhor the devastating loss of life attributable so patently to intoxication. But I am even more strongly of the opinion that the three branches of Government must be separately maintained in order to preserve the strength and independence of each. As Justice Huskins wrote in deciding Skinner v. Whitley, supra, “[W]e think innovations upon the established law in this field should be accomplished prospectively by legislation rather than retroactively by judicial decree. Such changes may be accomplished more appropriately by legislation. . . . Certainly that course is much preferred over judicial piecemeal changes in a case by case approach.” Id.
If I were Governor or in the legislature, I would build a platform and take my stand. While the majority opinion is a fine blueprint for legislation, this Court has no such authority.
I would uphold the able trial judge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9854471. Public record. Not legal advice.