Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a determination of the Division of Alcoholic Beverage Control (Division) affirming two transfer orders issued by the Board of Alcoholic Beverage Control of the City of Newark (Board).
Bartlett M. Smith was the holder of a retail consumption license for premises located at 776 South Orange Avenue, Newark. On July 6, 1961 he filed an application to transfer this license to 773 South Orange Avenue (place-to-place transfer). The application came on for hearing on July 19, when plaintiff through its attorney appeared as an objector and requested assurance from Smith that he intended to operate the premises at 773 South Orange Avenue if the license was granted. After a lengthy colloquy the Chairman of the Board, in effect, declined to oblige Smith to state his present intention with respect to future operation. The transfer was granted.
On August 3, 1961 an application was made by Home Liquors for the transfer to it of Smith's license at the new premises (person-to-person transfer). A hearing on this application was conducted on August 16, 1961 during which it developed that on June 20, 1961 Smith had entered a contract of sale with Home Liquors conditioned upon the transfer of the license to 773. This application for transfer was also granted.
Plaintiff then appealed to the Division from both transfers. The petition of appeal alleged that the actions of the Municipal Board should be reversed for the following reasons: (a) the filing of the separate applications by respondents Smith and Home Liquors were made to circumvent Section 3.29 of the Revised Ordinance of the City of Newark, and (b) the procedure following by respondents Smith and
Home Liquors to effect aforesaid transfers was made in violation of Rule 14 of State Regulation No. 6.
The pertinent portion of Section 3.29 of the Revised Ordinance of the City of Newark provides:
"No plenary retail consumption license, except renewals for the same premises and transfers of license from person to person within the same premises, shall be granted or transfer made to other premises within a distance of one thousand feet from any other premises then covered by a plenary retail consumption license, provided, however, that the local license issuing authority may, in its discretion, grant a transfer of an existing license to the same licensee to other premises within six hundred feet of the premises from which the transfer is made, notwithstanding that the premises to which the license is so transferred is within one thousand feet of an existing plenary retail consumption licensed premises."
Rule 14 of State Regulation No. 6 provides:
"Transfers of licenses both as to person and place may be applied for simultaneously and in a single application; but if there is such combined application for person-to-person and place-to-place transfer, the license shall not be transferred to the applicant unless the place-to-place transfer is also effected."
The answer filed on behalf of respondent Smith denied appellant's allegations and, by way of separate defense, stated:
"The evidence adduced at the hearings below established that the transfer of the licensed premises from No. 776 to No. 773 South Orange Avenue, Newark, New Jersey, being the opposite side of the street on the same block, in no way aggravated the concentration of licenses and was beneficial to the public interest.
The evidence adduced at the hearings below established that a denial of such transfer would impose a ...