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Benedetti v. Board of Commissioners

Decided: April 5, 1955.

JOHN PETER BENEDETTI, TRADING AS ACE TAVERN, APPELLANT,
v.
THE BOARD OF COMMISSIONERS OF THE CITY OF TRENTON, DIVISION OF ALCOHOLIC BEVERAGE CONTROL OF THE STATE OF NEW JERSEY, AND WM. HOWE DAVIS, DIRECTOR, RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

John Peter Benedetti appeals from an order of the Division of Alcoholic Beverage Control affirming an order of the Board of Commissioners of the City of Trenton revoking his plenary retail distribution license for his tavern. The basis of this order was appellant's violation of Rules 4 and 5 of State Regulations No. 20 promulgated pursuant to N.J.S.A. 33:1-39, in that he permitted upon his licensed premises prostitutes and persons of ill repute, solicitation for sexual intercourse, and conducted the tavern as a nuisance in a manner offensive to common decency and morals.

Benedetti categorically denied the charges, asserting that if such activities took place upon his premises, they were without his knowledge or consent. The board of commissioners, however, after hearing the testimony of witnesses, found the charges to be true. On appeal to the Division of Alcoholic Beverage Control, by stipulation the testimony taken before the local board of commissioners was accepted in lieu of the formal calling of witnesses. Benedetti's contention that the action of the local board was illegal, erroneous, arbitrary and capricious was found to be without merit.

The appellant now argues that the revocation of his license was upon insufficient evidence, against the weight of the evidence, and unduly harsh and severe.

It would serve no useful purpose to detail the sordid testimony that was adduced at the hearing. It will suffice to set

forth its general effect. Nine female patrons testified that over varying periods of time they were in the habit of going to the tavern, unescorted, where they met strange men, principally soldiers, who bought them drinks. Most of the girls testified that while in the licensed premises they made arrangements with the men to go elsewhere for illicit sexual intercourse and did in fact leave the premises and indulge in such acts, at hotels, motels, apartments and elsewhere. One girl testified that during a period of about a year and a half she met at this tavern and had sexual relations with about 200 men. The girls testified that when they were in the appellant's premises, he was usually there, tending bar.

There was abundant testimony from other witnesses to corroborate and substantiate the charges against the appellant. Among them was a police officer who testified that several of the girls were arrested for prostitution during the time they frequented the tavern.

On behalf of the appellant, testimony was given by a municipal A.B.C. investigator, a bartender, a waitress, and several patrons and neighborhood tradespeople, to the general effect that they saw nothing wrong going on in the premises. The neighborhood trades people visited the tavern principally during the day when their places of business were open. The municipal investigator testified that in her opinion the appellant tried to run a "clean place." Benedetti himself admitted that the girls had frequented his tavern, but said that he knew nothing of their solicitation. He testified that he made them behave themselves, and on occasion ejected some who did not.

The primary responsibility to enforce the law pertaining to retail licenses rests upon the municipality, R.S. 33:1-24, which has the power to conduct disciplinary proceedings to suspend or revoke retail licenses. R.S. 33:1-31.

The appellant argues that in the absence of direct proof that he knew of or consented to the charged activities upon the licensed premises, the evidence adduced at the hearing was insufficient to sustain the revocation of his license. Rules 4 and 5 impose the responsibility upon the

licensee not to "allow, permit or suffer" upon the premises persons of the character and acts of the nature above described, and such responsibility adheres regardless of knowledge where there is a failure to prevent the prohibited conduct by those in the premises with his ...


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