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Borough of Fanwood v. Rocco

Decided: January 26, 1960.

BOROUGH OF FANWOOD, A MUNICIPAL CORPORATION, APPELLANT,
v.
ANTONIO ROCCO AND DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

The Borough Council of Fanwood unanimously denied Antonio Rocco's application for a place to place transfer of his plenary retail distribution ("package store") license. Rocco appealed to the Director of the Division of Alcoholic Beverage Control who reversed and ordered the granting of the transfer. Fanwood appeals.

Fanwood is a residential community whose boundaries form a rectangle roughly a mile square. It is bounded on the west by Plainfield and on the other three sides by Scotch Plains.

At present Fanwood has two taverns and one package store, but they are located on the outskirts of the borough, very close to its borders. The package store belongs to Rocco. It is at 193 Terrill Road, in the extreme westerly corner of the borough, a few feet from Scotch Plains to the north and Plainfield to the west. Immediately next door to the package store Rocco or a member of his family -- it is not clear which -- operates one of the two taverns in the borough. Counsel for Fanwood referred to the tavern license as being held by "Lucy Rocco." Rocco did not testify but his son Anthony, Jr., who appeared for him, testified that "we" did "sell package goods" from the tavern "at times" as well as from the package store, and that:

"Q. In other words, if this transfer were granted, then you would be selling package goods from 252 South Avenue and there would also be sold package goods from the premises on Terrill Road, wouldn't there? A. We could if we wanted to, yes."

In short, there are at present no taverns or package stores anywhere in the borough except at two points near its remote borders. The requested transfer asks that Rocco's package store be moved about 1 1/2 miles to a point which is almost the exact geographic center of the borough, leaving the Rocco tavern where it is. The net result of the granting of the transfer would be that instead of two points in the borough at which liquor is sold, and both on the outskirts, Fanwood would have three, the new one being in the center of the borough where no sale of liquor (except warm beer) has been permitted at least since the repeal of prohibition. Indeed, the premises which Rocco intends to use as a package store were last occupied as a Christian Science reading room.

In its answer to the petition of appeal to the Director the borough said:

"Second Separate Defense

The Mayor and Council of the Borough of Fanwood have for many years past denied all applications for a plenary retail distribution license for any and all premises situated on Martine Avenue

and South Avenue in the Borough of Fanwood, for the reason that a retail liquor store in this section of Fanwood was not desired by the people of Fanwood.

Third Separate Defense

The Mayor and Council are officials elected by the Borough of Fanwood and they represent the people of Fanwood. It was their considered judgment that, taking into consideration the health, morals and general welfare of the people of Fanwood, the location of a plenary retail liquor store at 252 South Avenue would be against the public interest of the people of Fanwood. Among the facts considered were (a) the proposed liquor store is within one block of the Fanwood Presbyterian Church, which has a membership of approximately 2,000 people; (b) it is one and one-half blocks from Public School #4; and (c) there has always been a strong sentiment in the Borough of Fanwood against any more retail liquor stores."

The testimony presented before the hearer of the Division proved these allegations, i.e. , that Fanwood denied the application because no tavern or package store had ever been permitted in the area and "a retail liquor store in this section of Fanwood was not desired by the people of Fanwood," that it was the governing body's "considered judgment that * * * the location of a plenary retail liquor store at 205 South Avenue would be against the public interest of the people of Fanwood," and that among the facts considered were the items set forth in the third separate defense.

It would serve no useful purpose to review the evidence in detail. However, it is pertinent to note that 252 South Avenue is in Fanwood's business center -- a small one, consisting of about 25 stores. It is opposite the railroad station, at which trains arrive day and night. Two doors away from the proposed location is a store occupied as a confectionery, soda fountain and the only newsstand in the community, selling also magazines and comic books. It was described by all of the witnesses as the borough's major gathering place for youngsters. Indeed, some described it as Fanwood's only social center. Next door to the proposed location is a barber shop. Rocco admitted that at the council meeting at which the transfer was denied he was told orally by at least one

councilman that the location was "too close to a place where ...


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