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Borough of Fanwood v. Rocco

Decided: November 7, 1960.

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



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[33 NJ Page 407] The Director of the Division of Alcoholic Beverage Control reversed the Borough of Fanwood's denial of Antonio Rocco's request for transfer of his licensed premises and the Director's action was, in turn, reversed by the

Appellate Division. See 59 N.J. Super. 306 (1960). We granted certification on application of the Division and the licensee.

Fanwood is a small residential community which is bounded on its west by Plainfield and on its other borders by Scotch Plains. It has two taverns operating under plenary retail consumption licenses and one package store operating under a plenary retail distribution license. See N.J.S.A. 33:1-12. The taverns and the package store are located on the outskirts of Fanwood along its Plainfield border and have been operated there for many years. The package store is owned by Mr. Rocco who applied to transfer his licensed premises to a store located about a mile and a half away in the midst of Fanwood's only business center. There have never been any licensed taverns or package stores (at least since New Jersey's present control system was established in 1933) in this business center although Fanwood has issued two limited retail distribution licenses permitting the sale in food stores of unchilled beer for off-premises consumption. See N.J.S.A. 33:1-12. Mr. Rocco's proposed new location is opposite Fanwood's railroad station and is two doors away from a confectionery store where local "teenagers" congregate. It is about a block from the Fanwood Presbyterian Church and about two and a half blocks from a public school.

After Mr. Rocco filed his application for transfer, Fanwood received letters of objection from the Presbyterian Church which expressed the view that the application should be denied "for the good of this town and its citizens" and from Mr. Goudy who stated that "it seems entirely unnecessary to permit the location of a liquor dispensary at the very center of our community." A public hearing was held on October 9, 1958 and on November 12, 1958 the borough council denied the application. In response to an inquiry by Mr. Rocco's son as to the reason for the denial, Councilman Hazel stated that "he voted the way the majority of people in Fanwood would want him to vote and that he had received objections from representatives of the church and individuals" and

Councilman Weisiger stated that the premises were "too close to stores where teenagers congregate." In due course Mr. Rocco appealed to the Division of Alcoholic Beverage Control where the borough filed an answer formally setting forth the reasons for its denial of the application. It referred to the aforementioned remarks of Councilmen Hazel and Weisiger, noted that previous applications had been denied "for the reason that a retail liquor store in this section of Fanwood was not desired by the people of Fanwood," and stated that the establishment of a package store at the proposed location would, in the judgment of the Mayor and Council, be "against the public interest" and that the factors which had been considered included the proximity to the church and school and the "strong sentiment in the Borough of Fanwood against any more retail liquor stores."

The Mayor and all of the borough's councilmen testified in the course of the hearing of the appeal before the Division of Alcoholic Beverage Control. Mayor Todd testified that at least five previous applications for licenses "in this immediate vicinity" had been denied; that the granting of Mr. Rocco's application would be "contrary to the feeling of most of the people of Fanwood"; and that other reasons discussed during the council's deliberations included "the closeness to this store where teenagers congregate, the result that could possibly happen from the purchase of liquor in this store and the possible consumption of it in nearby places." Councilman Mathews testified that after the application was filed he "tried to get a cross section of the various residents of Fanwood"; that all with whom he spoke were opposed to the application; that some mentioned the proximity of the premises where the local teenagers congregate; and that he personally believed that "it would be detrimental and not to the best interest of Fanwood" to license premises in that area. Councilman Agnoli testified that in his opinion the granting of the application would be against the public health, safety, morals and general welfare

of Fanwood; on cross-examination he referred specifically to the presence of the teenagers and the proximity of a lumber yard and a parking lot where packaged liquor might be taken and consumed.

Councilmen Hazel, Weisiger, Harris and Hansen were called as witnesses by Mr. Rocco and testified fully on direct and cross-examination. Councilman Hazel stated that he had discussed the application with people in the borough and they "just didn't like the idea of having a liquor store in the center of town where the children congregate"; he expressly noted that the borough council "had previously denied applications for a liquor license in the same area." Councilman Weisiger testified that in his opinion the proposed location would be unsuitable particularly because of the teenagers and the proximity of the lumber yard and the railroad station; he also stressed the opposition expressed by many people in the borough with whom he had spoken about the matter. Councilman Harris testified that he considered the location to be an undesirable one and that the people with whom he had spoken objected to the proposed package store in the area. Councilman Hansen testified that the people in the borough with whom he had spoken "did not want to see a package store come into the center of Fanwood"; that he recognized the need for balancing the convenience to persons who might desire to make their purchases in Fanwood's business center with "the possible bad effects of having a liquor store in that area"; and that his considered opinion was "that it would not be to the best interest of the borough to have the package store in our business district."

In reversing the denial of the application for transfer, the Director of the Division of Alcoholic Beverage Control took the position that since the proposed new location is in a business district "general objections in themselves do not justify the issuing authority in refusing to transfer" the license; and he expressed the view that the borough's objections lack merit since "the ...


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