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300 v. Board of Commissioners

Decided: November 20, 1956.

SPORTSMAN 300, TRADING AS SPORTSMAN 300, APPELLANT,
v.
BOARD OF COMMISSIONERS OF THE TOWN OF NUTLEY AND THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENTS



Clapp, Jayne and Francis.

Per Curiam

The appellant conducts a tavern at No. 173 Franklin Avenue in the Town of Nutley, Essex County, where it vends alcoholic beverages in pursuance of a plenary retail consumption license.

Officiating in their capacity as the municipal excise board, the commissioners after a complaint and hearing resolved on March 6, 1956 that the license of the present appellant be suspended for a period of ten days, effective March 18, 1956 at 1:00 P.M. From that action an appeal was prosecuted by the licensee to the Director of Alcoholic Beverage Control, Department of Law and Public Safety.

The conventional proceedings de novo were pursued in conformity with Rules 6 and 14 of State Regulations No. 15, and the Director upon consideration of all the facts and circumstances disclosed by the evidence concluded that the determination of the municipal commissioners was not arbitrary and capricious, that it be affirmed, and that the ten-day suspension theretofore imposed be restored and reimposed to commence at 2:00 A.M. June 11, 1956 and terminate at 2:00 A.M. June 21, 1956.

The disciplinary proceedings against the appellant were originated by a charge dated February 10, 1956 made by the town board of commissioners that on January 18, 1956 and on January 19, 1956 the licensee had sold alcoholic beverages to one John Benfield, a person under the age of 21 years, and permitted the consumption thereof by the minor in the licensed premises in violation of Rule 1 of State Regulations No. 20, which reads as follows:

"Rule 1. No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person under the age of twenty-one (21) years or to any person actually or apparently intoxicated, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises."

The evidence generates no doubt whatever that on the stated occasion Benfield was only 20 years of age and that he was served beer and wine, indeed of such a quantity as to prostrate him upon his departure from the tavern. The evidence revealed that the bartender and Benfield were personal acquaintances and warranted the reasonable inference that the bartender had previously learned from Benfield's father that his son was a minor. Thus there was an adequacy of proof that Rule 1 itself was violated.

There is, however, a statute (N.J.S.A. 33:1-77) declaring that any one who sells any alcoholic beverage to a minor shall be guilty of a misdemeanor. The cited statute, however, contains the following proviso:

"* * * that the establishment of all of the following facts by a person making any such sale shall constitute a defense to any prosecution therefor; (a) that the minor falsely represented in writing that he or she was twenty-one (21) years of age or over, and (b) that the appearance of the minor was such that an ordinary prudent person would believe him or her to be twenty-one (21) years of age or over, and (c) that the sale was made in good faith relying upon such written representation and appearance and in the reasonable belief that the minor was actually twenty-one (21) years of age or over."

It has been the inveterate practice of the Director of the Division of Alcoholic Beverage Control to recognize the

legislative intent expressed in the enactment and, by analogy, to permit the statutory proviso similarly to constitute a defense to a like charge in the disciplinary proceedings conducted in the Division. Caruso v. Jersey City, Bulletin 694, Item 1; Re ...


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