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Holmes v. Cavicchia

Decided: February 4, 1954.

FLORENCE HOLMES AND ELWOOD HOLMES, TRADING AS RIVERVIEW INN, APPELLANTS,
v.
DOMINIC A. CAVICCHIA, DIRECTOR OF THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL OF THE DEPARTMENT OF LAW AND PUBLIC SAFETY, RESPONDENT



Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

In this appeal the appellants contend that the proofs failed to establish that the beverage sold to certain minors had sufficient alcoholic content as to bring the sales within the proscribed regulation.

There were admittedly six minors who visited the premises owned and operated by the appellants. Each of the minors testified that on the occasion in question he ordered from, was served by and paid Elwood Holmes, one of the licensees, for the "beer" they consumed. The number of glasses of "beer" ordered, served, paid for and drunk ranged from three to ten, and each minor testified that he had been served "beer" at the appellants' tavern on prior occasions.

In defense of the charge, Elwood Holmes testified that he recognized the young men; that he knew they were minors; that he had not served them beer, but on the contrary, had served them "7-Up," a non-alcoholic beverage.

The Regulation No. 20 alleged to have been violated provides:

"Rule 1. No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person under the age of twenty-one (21) years or to any person actually or apparently intoxicated, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises."

The appellants contend that the minors were not qualified as experts to recognize the beverage served them as beer having an alcoholic content prohibited by the statute; that there was no competent evidence before the Director that the appellants had served alcoholic beverages to any of the six minors and, therefore, the suspension of license imposed as a punishment by the Director should be reversed.

R.S. 33:1-1, as amended by L. 1953, c. 32, provides, inter alia:

"For the purpose of this chapter, the following words and terms shall be deemed to have the meanings herein given to them:

b. 'Alcoholic beverage.' Any fluid * * * having an alcoholic content of more than one-half of one per centum (1/2 of 1%) by volume, including alcohol, beer, lager beer, ale, porter * * *."

And R.S. 33:1-1.1 further provides:

"In any proceeding for any violation of this chapter * * * any alcohol, beer, lager beer, ale, porter * * * shall be presumed * * * to contain more than ...


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