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Lubliner v. Board of Alcoholic Beverage Control for City of Paterson

Decided: February 4, 1960.


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


Paterson's three-man Board of Alcoholic Beverage Control granted a place to place transfer to "Hutch's Tavern" by a two to one vote. Upon appeal the Director of the Division of Alcoholic Beverage Control affirmed. Appellants ask us to reverse.

Appellants' first point is that "the Director of the Division should have reversed the local A.B.C. Board on the principle

of res judicata." The discussion of that point will provide the factual background necessary for the disposition of the remaining grounds urged for reversal.

Hutch's Tavern has been located in rented premises at 34 Straight Street, Paterson since prior to 1947. The licensee, Augustus Hutchins, purchased a building at 39 Carroll Street, Paterson and in 1947 applied for a place to place transfer of the tavern to that address. There was strong opposition and after a hearing the application was denied. Hutchins appealed to the Director, who affirmed. In his "Conclusions and Order," dated May 16, 1947, the Director said:

"At the hearing on appeal it was established that the premises sought to be licensed are situated in a mixed residential and business neighborhood. The determination of the question as to the number of licensed premises which should be permitted in any such neighborhood is a matter confided to the sound discretion of the issuing authority * * *. In the instant case there appear to be seven licensed premises within the immediate neighborhood, with many residents in protest voicing their objections at the hearing before respondent and again on appeal. In addition written objection to the transfer was filed by the Principal and Parent Teachers Association of nearby School No. 6, and a petition bearing the names of 408 residents of the neighborhood objecting to the transfer was also filed with respondent. The reasons advanced by respondent are certainly valid, were based on facts existing, and indicate that the vicinity is already adequately supplied with licensed premises. By the same token, there is an absence of any compelling evidence of public necessity for an additional licensed premises in the neighborhood and, consequently, the action of respondent cannot be deemed arbitrary and capricious * * *."

Hutchins again made application for the transfer in 1948, in 1950 and in 1951. The local board denied each application but Hutchins took no appeal.

In 1953 Hutchins applied for the fifth time. This time the local board approved the application by a two to one vote, the affirmative votes being cast by new members of the board. The member who cast the dissenting vote had been on the board before 1947, and always opposed the transfer.

The objectors appealed the 1953 approval to the Director of Alcoholic Beverage Control, who reversed. In his opinion, filed June 18, 1954, the Director said:

"Proper liquor control dictates that, in considering successive applications, an issuing authority should not be permitted to 'back and fill' without sound reason for its action. The above principle is subject to the general rule that no governing body may tie the hands of its successors in matters involving the exercise of discretion. Northend Tavern, Inc. v. Northvale, et al., Bulletin 493, Item 5.

It appears from the prior appeals that the section of the City in which 39-41 Carroll Street is located is already adequately supplied with licensed premises. The same factual situation exists at the present time. This is the fifth application made for the same transfer with no material change in the facts. The petition opposing the transfer was signed by four hundred people, and a number of people opposed the transfer at the hearing held below. The testimony at all prior hearings was made part of the record herein. No real public need for a license at the new premises has been established. Under all the circumstances, I conclude that respondent Board abused its discretion and acted in an unreasonable manner in granting this application for transfer. I shall reverse the action of respondent Board."

In 1958 the sixth and present application for the transfer was filed. A hearing was held thereon in which the applicant and the objectors were again represented by counsel. The board (which now consisted of three new members, all appointed after 1954) reserved decision, stating that its members would inspect the neighborhood. On January 14, 1959 the board granted the application, again by a two to one vote. The objectors again appealed to the Director, who this time affirmed. It is from that affirmance that this appeal is taken.

The basic reason advanced by Hutchins in support of each of his six applications has been essentially the same. It is that Paterson does not have a high class restaurant for colored

people, and one is needed because of the large colored population. Hutchins proposes to fill that need at 39 Carroll Street but he says that such a restaurant without a bar is not economically feasible. His present location, where he is only a tenant, is too small to contain such a restaurant. Therefore, he asks leave to move to the building at 39 Carroll Street which he purchased for that purpose.

Among the objectors were the principal of the nearest public school, who wrote that she believed "such a place of business which many of our children will have to pass, can expose our children to unnecessary problems * * *"; the minister of a nearby church, who wrote that in his opinion it would "increase the congestion and delinquency that is already realized to an excessive degree in the area"; and the appellant Congregation, which wrote "that many of the elderly members * * * go to the synagogue three times a day to worship. They will suffer indignities if confronted by persons who loiter about a tavern." Appellant Lubliner stated at the hearing "that he resided in the area and was the principal of the Workmen's Circle School, at 22 Carroll Street, and * * * was opposed to the transfer to the proposed premises as the parents of the school children would object to their children passing the tavern several times a day."

Another minister, Rev. F. D. Bellamy, pastor of a church which had been established within 200 feet of the proposed location after the Director's 1954 decision, stated that he had "signed a waiver for Mr. Hutchins on the promise that Mr. Hutchins would assist him in securing a new church building." The validity of this ...

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