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Cino v. Driscoll

Decided: September 27, 1943.

ORTENZIO CINO AND THOMAS MASSINA, TRADING AS "T" BAR AND GRILL, PROSECUTORS,
v.
ALFRED E. DRISCOLL, COMMISSIONER OF THE STATE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF THE STATE OF NEW JERSEY, RESPONDENT



On certiorari.

For the prosecutors, Harold Simandl.

For the respondent, Clarence Kremer.

Before Justices Parker, Heher and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This case presents for review prosecutors' challenge of the affirmance, by the State Commissioner of Alcoholic Beverage Control, of the temporary suspension of their plenary retail consumption license to sell alcoholic beverages. N.J.S.A. 33:1-31.

The basic question for decision is whether the Commissioner (N.J.S.A. 33:1-3) in the discharge of his duty "to hear and conduct" and "to render a decision" on prosecutor's appeal (N.J.S.A. 33:1-38) was obliged, as urged, to hear the testimony de novo, or whether he could legally use, as he did, a verified transcript of the testimony upon which the local issuing authority based the challenged temporary suspension.

Prosecutors are the holders of a plenary retail consumption license to sell alcoholic beverages on their premises at 257 Market Street, Newark, New Jersey. N.J.S.A. 33:1-12. They were tried and convicted by the Municipal Board of Alcoholic Beverage Control, hereafter referred to as Newark Board, on a complaint which, among other things, charged that, on August 4th, 1942, prosecutors did sell for consumption on their licensed premises, alcoholic beverages to Leonard Zaleski and John Joseph Makowski, minors, in violation of Rule No. 1, of Regulations No. 20, of the Department of Alcoholic Beverage Control, adopted in 1933 and prohibiting the sale and consumption of alcoholic beverages on licensed premises "to any person under the age of twenty-one years," and also in violation of N.J.S.A. 33:1-77, as amended and approved in 1939 and providing, subject to defenses not here raised, that "any person who sells alcoholic beverage to a minor shall be guilty of a misdemeanor." The Newark Board suspended prosecutors' license for twenty-five days.

In due season and in accordance with the regulations for appeals prescribed by the Alcoholic Beverage Control, prosecutors

appealed to the Commissioner who continued the statutory stay of their suspension. N.J.S.A. 33:1-31.

In their petition of appeal, prosecutors alleged, among other things, that the action of the Newark Board was erroneous in that it "was contrary to the weight of the evidence." Be that as it may, it is clear that prosecutors did not agree to present their appeal to the Commissioner either upon an agreed statement of facts or upon an available stenographic transcript of the proceedings before the Newark Board. Rule 8 of Regulations No. 14.

Concededly, the Commissioner did not take testimony de novo on the merits of the charges. Without notice to counsel for prosecutors, the Commissioner, in pursuance of Rule 14 of Regulations No. 14, "relaxed or dispensed" his rules for this appeal (Cf. Ogden v. Robertson, 15 N.J.L. 124, 126, as to the suggested impropriety for so doing) and, over objection, he used the testimony given by the minors at the hearing before the Newark Board. This testimony admittedly formed the basis for the suspension by the Newark Board. Additionally, and over further objections, the Commissioner used police teletype messages as to the whereabouts of the minors and also used ex parte affidavits of the minors which had been admitted for prosecutors for the limited purpose of identifying signatures thereto. On the proofs so used, the ...


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