For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
An appeal had been taken to the Director of the Division of Alcoholic Beverage Control to rescind the issuance of a license permitting plenary retail distribution of liquor in the Borough of Magnolia and to set aside, as invalid, a 1960 ordinance creating the license. From an order of the Director affirming the issuance of the license, petitioners appealed to the Appellate Division, which affirmed. 73 N.J. Super. 306 (App. Div. 1962). We granted certification. 38 N.J. 182 (1962).
Petitioners-appellants are Horace W. and Angeline V. Blanck, holders of one of the plenary retail consumption licenses in the borough, and the South Jersey Retail Liquor Store Association, an unincorporated association consisting of holders of plenary retail distribution licenses in South Jersey. The respondents are the Mayor and Borough Council of Magnolia, and Harry R. and Catherine D'Amico, trading as the D'Amico Liquor Store, holders of the challenged license.
By virtue of an ordinance adopted March 12, 1940, the Borough of Magnolia had limited the number of plenary retail consumption licenses to three and the number of club
licenses to one, with no provision for any plenary retail distribution license. At a meeting held on August 24, 1960, the Borough Council approved on first reading an ordinance amending the 1940 ordinance and establishing the plenary retail distribution license and set October 5, 1960 as the date for public hearing and final passage of the ordinance. Respondent Harry D'Amico, who served as a councilman for many years and at the time of the passage of the amendatory ordinance complained of was serving as president of the council, was not present at the meeting of August 24. Notice of the council's action was published in the Camden Courier-Post on September 23, 1960. Mr. D'Amico did attend the meeting held on September 7, 1960, and moved that the minutes of the last regular meeting of August 3 and the adjourned meeting of August 24 be approved. His motion was seconded and unanimously adopted. On October 1, 1960 Harry D'Amico presented his resignation as president and member of the council to the borough clerk, his brother Samuel D'Amico. The record shows that no other official knew of the resignation. Harry D'Amico was not present at the council meeting of October 5, 1960, at which the first order of business was consideration of the pending ordinance. The ordinance was read and the mayor opened the public hearing thereon. There being no comment on the ordinance from the citizens in attendance, the public hearing was closed and the ordinance passed by a unanimous vote of the councilmen present at the meeting. Later in the same meeting, D'Amico's resignation was submitted and accepted by the council. Notice of the council's action was published in the Camden Courier-Post on October 14, 1960.
On October 7, 1960 the D'Amicos filed an application for the newly established license. On October 26 the only other application filed was received by the borough clerk. Two others inquired about license applications and were given the forms, but neither filed.
At a meeting of November 2, 1960, certain citizens appeared in order to determine what could be done to have the
ordinance rescinded. The mayor and council advised them that if they filed a petition to that effect, their petition would be considered. The meeting was adjourned to November 7, 1960. The council also announced that it would, at the adjourned meeting, consider the two applications for the plenary retail distribution license.
At the adjourned meeting, the mayor and council received a petition containing 142 signatures requesting that the ordinance be rescinded. After a short recess, during which the mayor and council conferred privately, it was announced that the mayor and council saw no justification for rescinding the ordinance. A statement was read by a councilman stating that the council was inclined to award the license to the respondents D'Amico because the D'Amicos, upon obtaining the license, planned to build a combination store and residence which would represent a valuable property improvement and result in general improvement of the business area, whereas the other applicant, Myers, intended to use his existing residence as a temporary liquor store and had no definite future plans; that the premises owned by Myers were only 500 feet distant from the place of business of petitioners Blanck, while the premises contemplated by respondents D'Amico were a considerable distance away "at the opposite end of town"; and that the increased population since 1940 lent further propriety to the creation of such a license. Motions were then introduced and carried granting the application of the D'Amicos, subject to the completion of the planned premises, and denying the application of the other applicant.
An appeal from the issuance of the license was filed with the Director of the Division of Alcoholic Beverage Control. On November 30, 1960, the Director sent a notice of a hearing scheduled for December 19, 1960. The hearings were conducted and on April 11, 1961 the Alcoholic Beverage Control Hearer concluded that there was no indication that the mayor and council members had acted improperly, and that the ordinance and the issuance of the license were proper in all other respects. In his report the Hearer stated:
"Determination as to the number of licensed places to be permitted in any particular area is a matter confided, in the first instance, to the sound discretion of the issuing authority. The burden of showing an abuse of discretion rests with the appellants. Union County Retail Liquor Stores Association v. Roselle, et al., Bulletin 772, Item 11. Considering the increase in population, the distance between the Blanck and D'Amico premises and the fact that the latter premises are in a commercial zone, it does not appear that respondent Mayor and Council abused its discretionary power. Moreover, under the facts of this case, it does not appear that its action was arbitrary or unreasonable."
This approach was consistent with the principle that the issuance, renewal and transfer of liquor licenses rest in the sound discretion of the issuing authority and will not be disturbed in the absence of a clear abuse of discretion. Paul v. ...