Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
This is an appeal from a decision of the State Director of the Division of Alcoholic Beverage Control sustaining the action of the respondent Newark board, which found the appellant guilty of selling and serving beer to a person "actually or apparently intoxicated," in violation of a regulation of the Division, and suspended its retail liquor license for 20 days. The offense is alleged to have occurred August 23, 1957.
The adjudication by the Newark board against the appellant was based substantially upon the testimony of three investigators of the Division to the effect that one Bannon was served beer at appellant's premises in Newark at a time when he was actually or apparently intoxicated. Each of the agents testified as to the details of Bannon's appearance, showing such classic indications of intoxication as incoherence of speech, use of profanity, unsteadiness on feet, bloodshot eyes and dishevelment of person. Their testimony was corroborated by that of a Newark police surgeon who examined Bannon shortly after the occurrence complained of, and who was told by Bannon that he had been drinking for several days. The licensee adduced testimony purporting to show that Bannon was not intoxicated.
At the hearing before the Newark board, appellant demanded that the State Director produce written reports which had been filed concerning the incident by the three investigators. The Director refused to make these reports available under a departmental policy treating such reports as confidential.
On appeal, there was a hearing de novo before a hearer sitting for the Director, and the agents testified again, this time at the call of appellant, the respondent having submitted on the transcript before the Newark board. Their testimony in substance accorded with that which they had given before. The appellant offered testimony of the bartender, night manager and general manager of its place of business to the effect that Bannon was, to all appearances, sober at the time he was served the beer. The hearer refused a request of appellant to give it access to the reports filed by the investigators. At the conclusion of the case the hearer filed a report in which he concluded that "the testimony of the agents clearly establishes that the licensee permitted the sale of alcoholic beverages to and the consumption of such beverages by a person actually, or apparently, intoxicated." The hearer also found that the testimony of the agents respecting the material facts had "remained unshaken," notwithstanding "exhaustive cross-examination." The Director concurred in the findings and conclusions and adopted the hearer's recommendation that the action of the Newark board be affirmed. Pending this appeal the penalty has been stayed.
While the present appeal from the action of the Director was pending, and after the filing of appellant's original brief, this court, on the application of the Director, ordered a remand for the purpose of permitting the appellant to see the reports and to cross-examine the agents on the basis thereof. See State v. Hunt , 25 N.J. 514, 524 (1958). The failure to allow access to the reports had been one of two grounds of appeal raised by appellant in its original brief. Pursuant to the order, the reports were made available to
appellant, and further hearings were held. But appellant's cross-examination of the agents went beyond what the hearer deemed the scope of the order for remand, and was disallowed to that extent. We subsequently denied a motion by the appellant designed to compel a broader scope of cross-examination of the agents than was being permitted by the hearer.
Pursuant to our order, a supplemental report was filed by the hearer, stating:
"It is apparent that no additional testimony was offered by appellant relevant to the meritorious issue based on any disclosures gained from the reports and the cross-examination. I have reviewed the testimony of the investigators and read their reports and I find no inconsistencies which could in any way alter the findings set forth in my original report. Disregarding the testimony of McDermott, the testimony of West and Cooper respecting Bannon's slovenly appearance, bloodshot eyes, incoherent speech, profanity and unsteadiness on his feet, evidences the fact that the man was apparently, if not actually, intoxicated and, also, that while in that condition, he was served alcoholic beverages by the bartender. It has been clearly established, therefore, that appellant was guilty of violating Rule 1 of State Regualtion No. 20.
I recommend, therefor [ sic ], that the determination of the Director entered on April 23, ...