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Hornauer v. Division of Alcoholic Beverage Control

decided: June 27, 1956.

FRANK E. HORNAUER, T/A BLUE ROOF RESTAURANT, APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, RESPONDENT. GEORGE E. NEULS, T/A RIVER VIEW INN, APPELLANT, V. DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

These appeals seek review of the determination of the Director of the Division of Alcoholic Beverage Control suspending appellants' liquor licenses upon finding them guilty of the sale and service of alcoholic beverages to a 15-year-old girl who, together with two adult male companions, visited both taverns on Sunday, July 24, 1955. Suspensions entered against two other licensees (Hempel and Baer, t/a Mansfield Inn, and Landzberger t/a Al King's Bar & Grill), whose taverns were likewise visited by the trio on the same day, have not been appealed. A charge brought against one Schureman, t/a Cedar Castle, for sale and service of alcoholic beverages to the minor, was dismissed after hearing, for lack of proof. The facts concerning the other proceedings mentioned have been stipulated of record.

This court granted a stay of the suspensions pending appeal. Permission to file a consolidated brief was granted the Division by orders duly entered.

Appellants' major contention is that the proofs fail to support the charges by a fair preponderance of the believable evidence. This is the standard which guides the Director in measuring the adequacy of proof to sustain guilt in disciplinary proceedings instituted against licensees for violation of the statute or a Division regulation. Kravis v. Hock , 137 N.J.L. 252, 254 (Sup. Ct. 1948). On appeal our approach to the record is from a different direction. As respondent correctly notes, the futility of projecting for appellate review contentions relating to the preponderance of the evidence given before administrative agencies has become so increasingly manifest that documented support for their rejection would appear superfluous. In his analysis of developments in administrative law written for the 1946 Annual Survey of American Law (N.Y.U. School of Law) , 187, 229, by Chief Justice Vanderbilt shortly before coming to the bench, he said:

"The scope of judicial review upon findings of fact continues to be narrowly limited. The substantial evidence rule is applied

rigorously in literally hundreds of cases and has become so well established in the federal courts and in many of the state courts that detailed reference to all of the many cases would serve no useful purpose. The courts continue to apply the usual corollaries to the rule, i.e. , that it is the function of the administrative agency and not the courts to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence, and to resolve conflicts therein."

The now generally accepted gauge of administrative factual finality is whether the factual findings are supported by substantial evidence. In re Larsen , 17 N.J. Super. 564, 576 (App. Div. 1952). In every case in which this court has been requested to resolve conflicting evidence, independently of the factual conclusion of the respondent agency, it has declined to do so. Passarella v. Board of Commissioners , 1 N.J. Super. 313, 321 (App. Div. 1949); Traymore of Atlantic City, Inc., v. Hock , 9 N.J. Super. 47, 48 (App. Div. 1950); In re Schneider , 12 N.J. Super. 449, 454 (App. Div. 1951); In re Larsen , above, 17 N.J. Super. , at pages 573, 576-577 (App. Div. 1952); In re Gutman , 21 N.J. Super. 579, 581, 582 (App. Div. 1952); Mazza v. Cavicchia , 28 N.J. Super. 280, 289 (App. Div. 1953), reversed on another ground, 15 N.J. 498 (1954); Mitchell v. Cavicchia , 29 N.J. Super. 11, 13-14 (App. Div. 1953); Benedetti v. Board of Commissioners of City of Trenton , 35 N.J. Super. 30, 34 (App. Div. 1955); cf. New Jersey Bell Tel. Co. v. Communications Workers, etc. , 5 N.J. 354, 378 (1950). Cf. also, Senate Bill No. 42, 1956 session of the New Jersey Legislature, section 7, which embodies the substantial evidence rule in reviews of administrative agency action; Sanders v. Director, Division of Taxation, etc. , 40 N.J. Super. 477 (App. Div. 1956).

The reason for this exercise of judicial restraint is that otherwise the agency "would be reduced to the status of a mere conduit for the transmission of evidence to the courts." Mazza v. Cavicchia , above, 28 N.J. Super. , at page 289; and see In re Larsen , above, 17 N.J. Super. , at page 571. Justice (then Judge) Brennan, in his concurring opinion in the Larsen case, though critical of the merger of functions

reposed in the Division, expressed his view of the appellate power of reviewing the facts under then Rule 3:81-13 (now R.R. 4:88-13) (cf. R.R. 1:5-4(b), 2:5), thus:

"We should be cautious in invoking the power at least when dealing, as here, with the fact finding of an experienced agency of demonstrated competence. Cf. Dobson v. Commissioner , 320 U.S. 489, 64 S. Ct. 239, 88 L. Ed. 248 (1943). We should appreciate the undesirability of trying cases de novo from such an agency and of the value of having the agency assume a real responsibility for weighing and ...


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