Schettino, Hegarty and Speakman. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Appeal is taken from the action of respondent New Jersey Division of Alcoholic Beverage Control in approving the granting of an application by the Board of Alcoholic Beverage Control of the City of Paterson for transfer of a plenary retail consumption license from person to person and place to place.
The Paterson Board of Alcoholic Beverage Control granted the application of respondent, Bertelli's, Inc. (then Bertelli's Liquor Store, Inc.), for transfer of a plenary retail consumption license from Edward A. Levy, receiver in bankruptcy for the 230 Market Street Corporation, to respondent Bertelli's, Inc. (formerly Bertelli's Liquor Store, Inc.) and from premises 230 Market Street to 218-230 Redwood Avenue, Paterson, premises then in the process of construction. Because the proposed premises, according to a plan previously submitted, would not constitute "a bona fide barroom," the State Director of Alcoholic Beverage Control, on appeal by this appellant remanded the matter on May 21, 1954 to the local board "for further action in accordance with the foregoing conclusions." The Director also stated that "The entire proposal for the erection of a small bar in the rear of the premises and a large 'package goods department'
in the front part thereof is obviously for the purpose of evading the spirit and intention of the present law in obtaining a privilege to which it is not legally entitled." He suggested that the name of Bertelli's Liquor Store, Inc. referred to a "package goods store" rather than to a tavern and thus might mislead the general public.
On June 3, 1954 respondent Bertelli's, Inc., under the name of Bertelli's Liquor Store, Inc., filed application with the Paterson Board of Alcoholic Beverage Control for a renewal of the license in question. At a meeting of the board held on June 9, 1954 Bertelli submitted an amended plan. Certain "remarks" were addressed to the board by the attorneys for Bertelli and an objector, but no hearing was held nor testimony taken. An announcement was made that "this matter would be continued at a later date."
On June 3 and 10, 1954, legal newspaper advertisements, pursuant to the June 3 renewal application, were published. These advertisements were later deemed unacceptable by the local board in that they did not include a notice advising that the plans and specifications of construction were filed at the city board's office available for public inspection. New, corrected advertisements were published by respondent corporation in another newspaper on June 22 and June 29, 1954. The June 3 application was not amended to show the new dates of publication or the change of newspaper. On June 29, 1954 a document dated June 16, 1954, certified by the Secretary of State of New Jersey, was filed with the city board on behalf of the applicant indicating a change of corporate name to Bertelli's, Inc.
At a special meeting on June 30, 1954, at which the appellant's attorney was present and participated in the discussion, argument was had on the amended plan, as a result of which the board reaffirmed its previous grant of the transfer "effective immediately for the sole purpose of permitting [a] renewal" and directed that the license shall not be issued until satisfactory completion of the premises. The record before us fails to disclose any objection to the renewal made by appellant.
We first dispose of the question as to just what is the subject matter of the appeal. Appellant's brief and oral argument are replete with reference to alleged reversible action on the part of the local board and the State Director in granting and approving the renewal and the transfer of the license. However, appellant's notice and petition of appeal to the Director state that its plea is for a reversal of the local board's action in approving the transfer. Appellant's references to transfer appear several times; no reference is made to renewal. The answers filed by the local board and Bertelli refer to transfer and no reference is made to renewal. The conclusions and order here appealed from refer solely to transfer, as did the conclusions and order of the first appeal to the State Director in this case.
We will limit our determinations on appeal to what was considered below and not what is outside the appeal record.
R.S. 33:1-12.23, reads as follows:
"The holder of a plenary retail consumption license or a seasonal retail consumption license, after the effective date of this act, may sell and display for sale alcoholic beverages in original containers for consumption off the licensed premises only in the public barroom of the licensed premises, such barroom being a room containing a public bar, counter or similar piece of equipment designed for and used to facilitate the sale and dispensing of alcoholic beverages by the glass or other open receptacle for consumption on the licensed premises; * * *."
with a proviso that does not apply since the license in question does not contain the "broad package privilege" notation set forth ...