On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
The appellant's retail liquor license was revoked by the Director of the Division of Alcoholic Beverage Control, and the Superior Court, Appellate Division, affirmed the administrative action. Appellant has sought to invoke this court's jurisdiction by alleging state action violative of constitutional due process and equal protection. 1947 Constitution, Art. VI, Sec. V, par. 1(a); R.R. 1:2-1(a).
The facts are not in dispute. Butler Oak Tavern, Inc., is a corporate body and prior to March 14, 1955 was engaged in the retail sale of intoxicating beverages pursuant to a plenary retail consumption license issued by the governing body of the Borough of Butler, Morris County, New Jersey. Joseph Dilzer and his wife own 48 of the 50 shares of corporate stock. On December 18, 1954, Dilzer, the dominant figure in this litigation, sold 24 bottles of intoxicating liquors at a price less than that published as a minimum resale price by the Division of Alcoholic Beverage Control. See R.S. 33:1-23.1. Twelve of the bottles were purchased by a customer; the other dozen by representatives of the Division who subsequently revealed their identity. Charges were prepared and dispatched to Butler Oak Tavern and a hearing scheduled. In apparent disregard of the events of December 18, a similar violation took place three days later. The appellant pleaded not guilty to the three charges but later changed the plea to non vult, and, pursuant to counsel's request, the Director granted oral argument upon the question of penalty. Based upon the three charges alone the Director questioned whether Dilzer was a "fit person to be entrusted with the privilege of a liquor license," but all doubt was apparently removed upon a perusal of prior records of violations involving Dilzer:
October 1940 -- curfew infraction -- 5 days suspension
September 1943 -- refilling bottles -- 20 days suspension
February 1947 -- minimum price violation -- 20 days suspension (5 days off for confessory plea)
July 1949 -- Minimum price violation -- 25 days suspension (5 days off for confessory plea)
Accordingly, the license was revoked effective March 14, 1955, and the determination of the Director was affirmed on appeal to the Superior Court, Appellate Division. 36 N.J. Super. 512 (App. Div. 1955).
There are two dominant questions involved which require our determination: (1) Did the Director violate the principle of exclusiveness of the record? (2) Was appellant deprived of equal protection of the law by the imposition of a penalty allegedly greater in degree than that imposed against others under similar circumstances? Several subsidiary questions are disposed of within these two categories.
Appellant alleges the Director committed error in considering prior violations of Dilzer, its alter ego, upon the quantum of penalty to be imposed. It is argued that elemental rules of fair play require the prerequisite of alleging previous violations in the charges. Cf. N.J.S. 2 A:85-13. The argument overlooks the fact that appellant's license application admits the prior violations. State v. Rowe, 116 N.J.L. 48 (Sup. Ct. 1935), affirmed 122 N.J.L. 466 (E. & A. 1939). Proceedings taken pursuant to R.S. 33:1-31 to revoke or suspend an alcoholic beverage license are civil and disciplinary in nature, The Panda v. Driscoll, 135 N.J.L. 164, 165 (E. & A. 1947), In re Schneider, 12 N.J. Super. 449, 454 (App. Div. 1951) and the provisions of N.J.S. 2 A:85-13 concerning the criminal law are inapplicable. Appellant has shown no prejudice arising from a course of practice of general applicability which the Director has adopted in concluding the degree of penalty to be imposed. Cf. White v. Parole Board of State, 17 N.J. Super. 580 (App. Div. 1952).
In the course of stating his conclusions the Director made brief mention of the circumstances surrounding the violation of December 18 from which one might infer that Dilzer had hindered the agents of the Division in their investigation. See R.S. 33:1-35, as amended L. 1943, c. 37,
which enjoins such conduct. The source of the intimation does not appear but it was probably based upon a report submitted by the agent conducting the investigation. Appellant, assuming that the matter was an aggravating factor in the severity of the penalty, urges that it was incumbent upon the Division to make a separate specification in the charges to which it otherwise entered a plea of non vult. Mazza v. Cavicchia, 15 N.J. 498 (1954), is said to require this result. The Mazza case concerned the preliminary determination of the guilt or innocence of the licensee based upon matters dehors the record unknown to the alleged offender. This case is restricted to a consideration of the penalty to be imposed as pleas of non vult had been entered to the charges concerning illegal sales. The complete recital of ...