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Essex County Retail Liquor Stores Association v. Municipal Board of Alcoholic Beverage Control

Decided: December 2, 1960.

ESSEX COUNTY RETAIL LIQUOR STORES ASSOCIATION, APPELLANT,
v.
MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF NEWARK, DIVISION OF ALCOHOLIC BEVERAGE CONTROL OF THE STATE OF NEW JERSEY, AND R.H. MACY CO., INC., T/A BAMBERGER'S, NEW JERSEY, RESPONDENTS



Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.

Freund

This case involves the validity of a renewal plenary retail distribution license issued by the Board of Alcoholic Beverage Control of the City of Newark to the respondent, R.H. Macy Co., Inc., trading as Bamberger's, New Jersey, covering premises located at 109-135 Market Street, Newark, for the 1959-1960 licensing year. The basic question is the right to operate four different, physically-separated, liquor-selling areas in the store under a single license.

Petitioner had filed formal objection to the renewal of Bamberger's license and a public hearing was held by the Municipal Board. The Board granted the license renewal, and petitioner appealed to the Director of the Division of

Alcoholic Beverage Control of the State of New Jersey. A hearing was then held before a hearing officer, who filed his recommendations with the Director. The Director, in granting the renewal, amended the recommendations only to the extent of prohibiting respondent from accepting orders for alcoholic beverages over its regular switchboard and requiring that all such telephoned orders be transferred directly to the liquor department. Petitioner files its present appeal from the conclusions and order of the Director.

It is noted, preliminarily, that the license here under attack expired on June 30, 1960. While the controversy might be considered moot at this point, see Haulenbeek v. Borough of Allenhurst , 136 N.J.L. 557, 560 (E. & A. 1948); Fox v. Board of Education of Newark , 129 N.J.L. 349, 354 (Sup. Ct.), affirmed 130 N.J.L. 531 (E. & A. 1943); 73 C.J.S. Public Administrative Bodies and Procedure ยง 190, p. 538, nevertheless, since the license has been renewed for the 1960-1961 licensing year and it may be assumed that application will be made in the future for renewal under the existing conditions, we conclude that a justiciable issue has been presented, and we will therefore exercise our jurisdiction on the merits.

The facts, substantially undisputed, are as follows. Bamberger's is a well-known, large department store in the City of Newark, occupying a multi-story building situated on a block bounded by Washington, Market, Halsey, and Bank Streets. Prior to the institution of this litigation, Bamberger's had operated its liquor department under a Class C plenary retail distribution license, permitting the sale of alcoholic beverages in original containers for off-premises consumption. N.J.S.A. 33:1-12(3 a). From 1933 to the time of the instant litigation, the license was renewed annually without opposition. During this period there have been no violations of the Alcoholic Beverage Law, state regulations or municipal ordinances with respect to the licensed premises. In the standard application form for license renewal, filed as usual by respondent in seeking

its 1959-1960 permit, the following pertinent questions and answers appear:

"5. Location of premises to be licensed:

Street and number 109-135 Market Street

Municipality Newark

Post Office address 131 ...


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