Lessons Learned on Vacation: 2016 Edition

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Memorial Day weekend isn’t technically the beginning of summer, but it feels like it. Temperatures rise and many families head east toward water on Friday afternoons. That’s what my family did last Friday. Given that I try to stay reasonably informed about the law and I read my local paper, I thought I was well prepared to keep all of us on the beach and out of the slammer through the course of the weekend.

It turns out that there are a lot of rules that responsible adults and parents can break on vacation.  I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules.  I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning.  I’ve written about a few of these rules before.  And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts.  But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.

That’s right.  You may not sit your so-far-over-21-that-I-don’t-really-remember-my-younger-self on the beach on the first unofficial day of summer and enjoy a strawberry daiquiri (unless you leave the liquor out). But don’t despair. You may drink a beer or sip some wine.

Alcoholic beverages in North Carolina are regulated under Chapter 18B of the General Statutes. Alcoholic beverages include malt beverages (such as beer), wine, liquor, and mixed beverages. The general rule is that a person may only have liquor and fortified wine (wine with more than 16 percent alcohol) in places expressly permitted by statute. See G.S. 18B-301(f)(4). The rule for beer and unfortified wine (wine with 16 percent or less alcohol) is the opposite: A person who is at least 21 years old may possess beer and wine anywhere except where it is expressly prohibited. See G.S. 18B-300.  Local government lawyers might think of this as home rule for beer and wine.

Where may one lawfully drink liquor and fortified wine? 

At home. A person who is at least 21 years old may possess any amount of liquor and fortified wine at his or her home or a temporary residence, such as a hotel room.

Up to 8 liters at other locations. A person also may possess up to 8 liters of liquor and fortified wine (combined) at:

  • another person’s residence with that person’s consent;
  • any other property not primarily used for commercial purposes and not open to the public at the time the alcoholic beverage is possessed, if the owner or other person in charge of the property consents; and
  • a restaurant, hotel, private club, community theatre, or a veterans organization with a brown-bagging permit.

 

At special occasions. A person may possess any amount of fortified wine or liquor for a private party, private reception, or private special occasion, at:

  • Any property not primarily used for commercial purposes, which is under the person’s exclusive control and supervision, and which is not open to the public during the event; and
  • The licensed premises of a restaurant, hotel, eating establishment, private club, or convention center for which the ABC Commission has issued a special occasions permit if the person is the host of that private function and has the permission of the permittee.

Just as a person may possess fortified wine and liquor at the aforementioned places, he or she also may consume such beverages at any such location. G.S. 18B-301(d).

At a place with a permit. And, of course, the consumption of fortified wine and liquor is permissible at a location with on-premises fortified wine and mixed beverage permits. G.S. 18B-1001. An on-premises fortified wine permit may be issued to a restaurant, hotel, private club, community theatre, winery, or a convention center. A mixed beverage permit may be issued to any of these types of establishments other than a winery and also may be issued to a nonprofit or political organization.

Not on the beach.  Beaches do not constitute the sort of premises for which a permit may be issued authorizing the possession and consumption of fortified wine or mixed drinks.  While the dry sand portion of the beach – generally the area above the high tide line – may be privately owned, private persons cannot exercise the exclusive control over beaches that is required to authorize the possession of fortified wine and liquor pursuant to G.S. 18B-301(c)(2). Ocean beaches in North Carolina have “from time immemorial” been open to the public for its free use and enjoyment. G.S. 77-20.  Thus, even the owners of dry sand portions of the beach lack the ability to exclude the public from access. See Nies v. Town of Emerald Isle, __ N.C. App. ___, ___, 780 S.E.2d 187, 196 (2015) (“[P]ublic right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness. Native-born North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches.”).

Beer and wine.  I mentioned earlier that a person who is at least 21 years old may possess and consume beer and unfortified wine anywhere except where it is specifically prohibited. No state law prohibits a person who is at least 21 years old from possessing and consuming beer and wine on public beaches. Indeed, the town where I vacation most often, Emerald Isle, adopted an ordinance expressly stating that such possession and consumption is lawful. Emerald Isle, like many cities and towns, does prohibit the consumption of beer, wine and other alcoholic beverages on its public streets and on other public property in the town. See 18B-300(c)(1)(authorizing cities and towns to adopt such regulations).

What’s the penalty? Possession or consumption of fortified wine or liquor on unauthorized premises is a Class 1 misdemeanor. G.S. 18B-301(f)(2), -102(b). The offense is waivable, meaning that one may plead guilty to the offense in writing and pay a fine of $25 plus $203 in court costs in lieu of appearing in court. There were nearly 600 such charges last year, 9 in Carteret County and 55 in New Hanover County.

So, if you’d rather stay on the beach and out of court this summer, forget about that daiquiri and have a Bud Light or some muscadine wine instead.

3 comments on “Lessons Learned on Vacation: 2016 Edition

  1. Well, ma’am, that is all well and good, but your semi-captive audience at DCJ Summer Conference insists on knowing the dirty details as to how you came to acquire this knowledge regarding consumption of alcohol (and the restrictions thereof as to blended fruity drinks) on North Carolina beaches, so come prepared with a good story even if you have to make it up.

  2. While North Carolina certainly does not have a monopoly on archaic and asinine laws regarding alcoholic beverages, these laws are certainly a factor in my decision to relocate to New Orleans before the ink on my retirement papers dries. If you’ve never been to New Orleans you can’t imagine, if you have been there you know exactly what I mean. Laissez les bons temps rouler!”

  3. Sadly, I relocated to NC from Northern VA. It was the worst mistake I ever made. I purchased a home in Franklin County, which turned out to be hostile to outsiders. I have been bullied (not cybe- bullied) with shotguns, pickup trucks and vicious descructive dogs and . THere is no efffective law enforcement. THe Sheriff sides with the bullies. I am not kidding. Good luck in NOLA.

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