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Nordco Inc. v. State

Decided: January 10, 1957.

NORDCO, INC., PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF ALCOHOLIC BEVERAGE CONTROL, THE BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF NEWARK, NEW JERSEY, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

Nordco, Inc. appeals from an order of the Division of Alcoholic Beverage Control, affirming a determination of the Board of Alcoholic Beverage Control of the City of Newark, which refused to renew Nordco's plenary retail liquor consumption license for the licensing year July 1, 1956 to June 30, 1957. The Newark Board had also refused to renew the license for the preceding year, but it had been reversed by the Division with respect to that year. Bulletin 1114, Item 5.

Nordco had been operating a tavern at 213 Court Street, Newark, for some years. On January 3, 1955 its license was suspended 20 days for allowing or suffering a brawl to take place on the premises, and on May 8, 1956 it was suspended another 20 days (reduced to 15 days by reason of a plea of non vult) for selling liquor on Sunday, July 10, 1955. On July 3, 1955 and on April 29, May 11 and July 2, 1956 disturbances or assaults occurred in the tavern, leading to investigations by the police. Indeed, it appears that within the licensing year ending June 30, 1956, Nordco called the police for help 59 times, primarily through the medium of a Newark District Telegraph buzzer installed in the tavern.

Nordco contends that these 59 calls for police assistance, including the disturbances and brawls above mentioned, should not figure in the case since no claim is made that Nordco was in any way to blame for these incidents. Indeed, the Division, when dealing with Nordco's application to renew its license for the year ending June 30, 1956, had said that licensees should be encouraged to summon the police when trouble appears in the offing. However, when the Division came to consider Nordco's present application, it pointed out that the frequency of the calls upon the police demonstrated of itself that the tavern had become a "troublespot." Confirmation of this is to be found in the testimony of one detective before the Division, and a stipulation as to the testimony of another detective -- both of whom were assigned to the area in which Nordco is located -- that Nordco had more trouble than any other tavern in that difficult

area. We think these to be significant matters. It seems to us entirely proper for both the local and the state agencies, when passing on such applications, to take into account not only the conduct of the licensee, but also conditions, not attributable to its conduct, which render a continuance of a tavern in a particular location against the public interest.

Whether or not a license should be renewed rests in the sound discretion of the local issuing authorities and of the Division on appeal. Zicherman v. Driscoll , 133 N.J.L. 586, 588 (Sup. Ct. 1946); N.J.S.A. 33:1-38. The courts will interfere in the exercise of that discretion only in case of manifest error, clearly unreasonable action or some more untoward impropriety. Rajah Liquors v. Division of Alcoholic Bev. Control , 33 N.J. Super. 598, 600 (App. Div. 1955). We cannot say that the reliance put by the Division on the 59 calls, and on the fact that this tavern was a trouble spot, constitutes manifest error or an abuse of discretion.

The Division's determination is challenged on the further ground that the very inconsistency between that determination and the one made by it with respect to the preceding year is evidence of its own arbitrariness. But we do not think the point to be well taken. As above noted, there were in the licensing year July 1, 1955 to June 30, 1956, 59 calls upon the police for help, whereas the Division's decision for the preceding year observed merely that the police were called "on occasions" during that year. More significant than that, perhaps, is the fact that in the year ending June 30, 1956 another offense was committed, namely, the above-mentioned sale of liquor on a Sunday, a sale made by Ben F. Norden, vice-president of Nordco. This resulted in suspensions of the license for a period in two successive years.

One of Nordco's principal contentions is that it was not afforded either the hearing before the Newark board, or the notice of that hearing, to which it claims to have been entitled. It might be noted preliminarily that the parties

do not raise any question as to due process, except that they cite Adams Theatre Co. v. Keenan , 12 N.J. 267, 278, 279 (1953), for the proposition that a hearing before an agency may not be essential to due process in connection with a license proceeding, provided an opportunity for judicial review is afforded. See State Board of Milk Control v. Newark Milk Co. , 118 N.J. Eq. 504, 523 (E. & A. 1935); Metropolitan Motors v. State , 39 N.J. Super. 208, 212 (App. Div. 1956); Bourjois, Inc., v. Chapman , 301 U.S. 183, 189, 57 S. Ct. 691, 81 L. Ed. 1027, 1032 (Brandeis, J., 1937); cf. Pennsylvania Railroad Co. v. Dept. of Public Utilities , 14 N.J. 411, 426 (1954). However, the parties do not deal with Fifth Street Pier Corp. v. City of Hoboken , 22 N.J. 326, 336-339 (1956). See further Davis, "Requirement of a Trial-Type Hearing," 70 Harv. L. Rev. 193, 262-274 (1956); Schwartz, "Administrative Law," 31 N.Y. Univ. L. Rev. 1370, 1372, 1373 (1956); Davis, Administrative Law , 269 (1951).

Nordco does, however, rely on N.J.S.A. 33:1-24, which requires a local board "to conduct public hearings on applications and revocations." Cf. Florence Methodist Church v. Township Committee, Florence Tp. , 38 N.J. Super. 85, 90 (App. Div. 1955); Byse, "Opportunity to be Heard in License Issuance," 101 U. Pa. L. Rev. 57 (1952) (the article deals with retail sales of alcoholic beverages); State Regulation No. 2, Rules 6-8.

But we need not stop to inquire as to the extent of the duty imposed by that statute, for there is a Newark ordinance, specifically applicable here, ...


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