Goldmann, Freund and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Appeal is taken from an order of the Division of Alcoholic Beverage Control reversing the action of the Township Committee of Ewing Township in granting appellants, Joseph Barrett and Phyllis Sciarrotta, reciprocal transfers of plenary retail consumption licenses from person-to-person and place-to-place.
From Sciarrotta and her premises at 200 Ewingville Road to Barrett and his premises on River Road there was transferred a plenary retail consumption license with broad package privileges. At the same time from Barrett and his premises to Sciarrotta and her premises, there was transferred a plenary retail consumption license without broad package privileges. Under the license transferred, Barrett intends to sell alcoholic beverages for off-premise consumption from a liquor store instead of from his public barroom to which such sales were restricted under his original license. N.J.S.A. 33:1-12.23. Also located on River Road are the premises of Nestore Petrangeli and Jules Gasparri, holders of plenary retail consumption licenses. The premises of Barrett, Petrangeli, and Gasparri lie within a distance of 1,000 feet total.
When the applications for transfers were filed with the township committee, Petrangeli filed an objection on the ground that the proposed transfer would be in direct violation of the provisions of an existing ordinance of the Township of Ewing forbidding transfers of such licenses to premises within 1,000 feet of existing licensed premises, and that such transfer would cover a portion of Barrett's premises not previously licensed. The ordinance, so far as is here pertinent, provides:
"1. No plenary retail consumption license or plenary retail distribution license shall be issued for or transferred to premises within
one thousand (1,000) feet of any other premises licensed under a plenary retail consumption or plenary retail distribution license; provided, however, that nothing in this ordinance shall prevent renewal, for the premises now licensed or person-to-person transfer of licenses existing at the time of the effective date of this ordinance; provided further, that nothing in this ordinance shall prevent the transfer of any such licensed premises or structure which may be taken for public use or destroyed to a location within one thousand (1,000) feet of its present location provided that such new location is not prohibited by any statute of the State of New Jersey or other ordinance or regulation of the Township of Ewing."
A hearing was held on the application by the township committee on December 11, 1953, at which time the applicants -- appellants, Barrett and Sciarrotta -- and Petrangeli appeared. At the conclusion of the hearing the township committee granted the applications for transfer. The mayor stated the reasons for the township committee's action as follows:
"The purpose or the intent of the Township Committee in the passage of the ordinance was to eliminate the ganging up of taverns. The feeling being it would prevent the extraordinary police problems which seem to arrive when liquor establishments are concentrated in a small area. It was not the intention of the Township Committee to prevent this sort of transfer or exchange. Both licenses have the same privileges of selling package goods for off premises consumption.
We consider this to be nothing more than an application for the exchange of an existing premises, a privilege which has been and may be granted to licenses. We do not believe the general welfare of the community will be adversely affected by the granting of this application."
The ordinance provides escape clauses for certain hardship cases, but they are not pertinent here, and it is not contended that the transfers in question come within these provisos.
On December 14, 1953 Petrangeli appealed the action of the township committee to the Director of the Division of Alcoholic Beverage Control. Hearing was held, and on March 11, 1954 the Director filed his conclusions and order reversing the action of the township committee. On March 12, 1954 appellants filed an appeal with ...