On application for writ of certiorari.
For the petitioner, Emerson Richards.
For the respondent, Walter D. Van Riper, Attorney-General (by Samuel B. Helfand, Deputy Attorney-General).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. Disciplinary proceedings were instituted by respondent, Commissioner of the Department of Alcoholic Beverage Control, against the petitioner, holder of Plenary Retail Consumption License C-106, issued to her by the Board of Commissioners of the City of Atlantic City, for premises 1643 Atlantic Avenue, Atlantic City, New Jersey. As the result of a hearing of the charges, the Commissioner made an order on April 20th, 1948, revoking the license in question, effective immediately. Upon application to this court an order to show cause why certiorari should not issue was granted, and it was provided therein that the order of April 20th, 1948, be stayed and suspended pending the further order of this court.
As the bases of the order of revocation the Commissioner assigned three violations of the Alcoholic Beverage Control Law on the part of the petitioner licensee, viz.: (1) Petitioner unlawfully allowed, permitted and suffered females employed on her premises to accept beverages at the expense of and as gifts from customers and patrons in violation of Rule 22 of State Regulations No. 20; (2) Petitioner knowingly employed and had connected with her in a business capacity one Edward Kravis, a person who would fail to qualify as a licensee under the provisions of R.S. 33:1-1, et seq., and (3) Petitioner knowingly employed and had connected with her in a business capacity said Edward Kravis, who had been convicted of a crime involving moral turpitude, in violation of Rule 1 of State Regulations No. 13.
The petitioner pleaded not guilty to the foregoing charges and as a result of said hearing thereon, she was found guilty as charged, with consequent revocation of the plenary retail consumption license in question.
We have carefully reviewed the testimony taken before the Hearer Edward F. Hodges, on behalf of the Commissioner
of the Department of Alcoholic Beverage Control, as well as the conclusions of said Commissioner and his findings of facts set forth therein. The Commissioner determined that it had been established by the evidence that certain females who had been secured by the petitioner through the services of a New York theatrical agency and who had appeared in a show running on the petitioner's premises during the month of November, 1947, had on the several dates mentioned in the charges accepted alcoholic drinks in the petitioner's barroom at the expense of and as gifts from various customers and patrons; that Edward Kravis, a son of the petitioner, had been knowingly employed and connected with the licensed business in violation of R.S. 33:1-1, et seq., having been previously convicted on December 10th, 1943, of the crime of aiding and abetting in lewd entertainment, a crime involving moral turpitude at the licensed premises. We conclude that there was ample evidence to justify said conviction by the Commissioner. Under the disciplinary proceedings instituted against petitioner, to justify her conviction, respondent was only required to establish the truth of said charges by a preponderance of the believable evidence and not to prove her guilt beyond a reasonable doubt. Such proceedings are civil in nature and not criminal. Grant Lunch Corp. v. Driscoll, 129 N.J.L. 408; affirmed, 130 Id. 554; certiorari denied, 320 U.S. 801; The Panda v. Driscoll (Court of Errors and Appeals), 135 N.J.L. 164; Commonwealth v. Lyons, 142 Pa. Super. 54; 15 A.2d 851.
Petitioner contends that her conviction should be reversed on the ground that the female entertainers, allegedly treated to drinks, were not employees of the licensee; that they were "independent contractors," having been furnished through a theatrical agency in New York. We think this argument is besides the point and specious. Rule 22 of State Regulations No. 20 provides:
"No plenary or seasonal retail consumption licensee shall allow, permit or suffer any female employed on the licensed premises to accept any food or beverage, alcoholic or otherwise, at the expense ...