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Blanck v. Mayor and Borough Council of Magnolia

Decided: March 28, 1962.

HORACE W. BLANCK AND ANGELINE V. BLANCK, TRADING AS BLANCK'S LIQUOR STORE, AND THE SOUTH JERSEY RETAIL LIQUOR STORES ASSOCIATION, APPELLANTS,
v.
MAYOR AND BOROUGH COUNCIL OF MAGNOLIA, HARRY R. D'AMICO AND CATHERINE D'AMICO, TRADING AS D'AMICO LIQUOR STORE AND DIRECTOR OF DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENTS



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

Sullivan

This appeal grows out of the issuance of a plenary retail distribution liquor license by the Borough of Magnolia to Harry R. D'Amico and Catherine D'Amico for premises 200 South White Horse Pike, Magnolia, New Jersey.

In March 1940 the Borough of Magnolia adopted an ordinance limiting the number of liquor licenses within the borough to three plenary retail consumption licenses and one club license. The ordinance did not provide for any plenary retail distribution license. In October 1960, by

action of the borough council, the ordinance was amended so as to allow the issuance of one plenary retail distribution license in addition to the other licenses. Two applications for said license were made, one by Harry R. D'Amico and Catherine D'Amico, who proposed to erect a $30,000 building in the commercial zone for the operation of a liquor store, and the other by Roy C. Meyers, Jr., who proposed to use his existing residence as the liquor store and "probably anticipates building another building in the future for the liquor store." As heretofore noted, the license was issued to Harry R. D'Amico and Catherine D'Amico on November 7, 1960. The licensees have since constructed the building and have been operating the liquor store therein.

Appellants Horace W. Blanck and Angeline V. Blanck hold one of the plenary retail consumption licenses in the borough. This license includes the right to sell packaged goods. Appellant South Jersey Retail Liquor Stores Association is an unincorporated association consisting of holders of plenary retail distribution licenses in South Jersey.

Appellants appealed to the Director of the Division of Alcoholic Beverage Control from the issuance of the license to the D'Amicos. They charged, inter alia , that the amendatory ordinance under which the license was issued was invalid because of the self-interest of Harry R. D'Amico, who was alleged to have been a councilman and president of the borough council at the time the amendatory ordinance was adopted.

At the hearing in the Division the following facts were developed. Harry R. D'Amico had been a councilman of the Borough of Magnolia for a period of some ten years prior to August 1960, and during the summer of 1960 was president of the borough council. His brother, Samuel D'Amico, had been borough clerk since 1941.

In 1959 the borough council had considered amending its liquor ordinance to provide for a "liquor store," but nothing came of it. Early in the summer of 1960 inquiries were made by various people interested in putting a liquor store

in the borough. About the same time Councilman D'Amico had a discussion with Francis J. Scott, the borough mayor, presumably about amending the liquor ordinance. As a result of the discussion the mayor "knew that if the ordinance was amended that he [D'Amico] would apply for a liquor license." The mayor did not know "for sure whether he would apply." He "thought he would." The other councilmen testified that they were unaware of D'Amico's interest in obtaining a liquor license until after the amendment had been adopted.

The amendatory ordinance was introduced at an adjourned meeting held on August 24, 1960, and approved on first reading. Councilman D'Amico did not attend this meeting. Notice of the proposed amendment was published in the Camden Courier on September 23, 1960, with public hearing thereon scheduled for October 5, 1960.

The council met on September 7, 1960, which meeting was attended by Councilman D'Amico, who moved that the minutes of the regular and special ...


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