Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[41 NJSuper Page 461] The respondent, Chicken Barn, Inc., is the holder of a plenary retail consumption license issued to it by the appellant for its premises in Totowa, New Jersey. The licensed premises has been operated as a restaurant and bar for more than 20 years, with accommodations for 350 table guests and facilities for the display and sale of packaged liquor. In 1955 the respondent had plans drawn to enlarge the premises so as to accommodate an additional 150 guests, and to provide additional facilities for the display and sale of "packaged goods" in its combination restaurant and barroom. On July 29, 1955 it filed with the appellant an application for enlargement of its restaurant facilities and for a "place-to-place" transfer of its liquor license to the enlarged licensed premises.
In September 1955 a public hearing was held before the Mayor and Council of the Borough of Totowa, and by resolution it approved the application to enlarge the restaurant facilities but denied the transfer of the liquor license on the ground that "such a transfer would be the equivalent of granting a consumption license with the broad package privilege and an additional package goods store" and "that the proposed premises would not be a bona fide public barroom," imposing the condition that the bar and package display section remain as they had previously existed. From the denial of the transfer the respondent appealed to the Director of the Division of Alcoholic Beverage Control who, after a hearing de novo , reversed the borough council's denial of the license transfer. In its present appeal the borough council contends that the respondent's proposal for display and sale of alcoholic beverages for off-premises consumption would not be from a bona fide public barroom, that the plans are for the establishment of a package goods store, and that the addition to or enlargement of the premises is for the use of a package department in violation of Rule 7, Regulation 32, of the Division of Alcoholic Beverage Control.
The evidence discloses, and the Director so found, that prior to the filing of the application the room in question had an 18-foot bar, that behind the bar and parallel thereto was a back bar with shelves for the display of alcoholic beverages in original containers, and that adjacent thereto was a food counter behind which were more shelves for the display of packaged goods.
The proposed changes set forth in the plans submitted at the hearing and by the uncontroverted testimony of an officer of the respondent corporation do not affect the existing bar and display facilities, but enlarge the facilities by the erection of shelves for the display and sale of packaged goods, 27 feet in length at right angles to the bar, with a passageway between; in front of the 27 feet of shelving a counter 18 feet in length to be used for similar purposes; and at right angles to the 27 feet of shelving, along the exterior wall of the building and opposite the original 18-foot
bar, a low-boy refrigerator, 14 feet in length, for the refrigeration of beer and other beverages for off-premises consumption, with display shelves above the refrigerator.
On the appeal to the Director it was stipulated that the issue to be decided was:
"Does the place to place transfer application of the appellant in this matter, together with its companion plans and lay-out, as the same relate to the bar and the areas designated for the sale and display for sale of alcoholic beverages in original containers for off the premises consumption, comply with the requirements of N.J.S. [ A. ] 33:1-12.23 (Chapter 98, P.L. 1948) and State Regulation No. 32 so that this application of the appellant should have been granted and approved by the respondent."
The pertinent provision of the statute, R.S. 33:1-12.23, defines a "public barroom" 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; * * *."
In Coral Lounge & Cocktail Bar, Inc., v. Hock , 5 N.J. Super. 163, 167 (App. Div. 1949), Judge Colie said:
"The requisite standard or guide appears in the section (R.S. 33:1-12.23) under attack wherein a barroom is defined as 'a room containing a public bar, counter or similar piece of equipment' * * * it seems clear to us that a barroom means that portion ...