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Packard-Bamberger & Co. v. Borough Council of Borough of Oakland

Decided: March 15, 1965.

PACKARD-BAMBERGER & CO., INC., APPELLANT,
v.
BOROUGH COUNCIL OF THE BOROUGH OF OAKLAND AND DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENTS, AND HOWARD KAHN, T/A OAKLAND WINE AND LIQUOR STORE, AND HUDSON-BERGEN COUNTY RETAIL LIQUOR STORES ASSOCIATION, A NEW JERSEY CORP. NOT FOR PECUNIARY PROFIT, INTERVENING OBJECTORS



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

This is an appeal from the decision of the Director of the Division of Alcoholic Beverage Control affirming the denial by the Mayor and Council of the Borough of Oakland of an application for the transfer of an alcoholic beverage license. The denial was based upon the prohibition by N.J.S.A. 33:1-12.31 to 12.37 (L. 1962, c. 152) of the acquisition by any person of a "beneficial interest" in more than a total of two such licenses, appellant already being the owner of two or more licenses.

Appellant on July 9, 1962 entered into a contract of purchase of the alcoholic beverage license now in question -- that issued to Pleasureland, a New Jersey corporation, for premises at 23 Doty Road, Oakland, N.J. On July 20, 1962 appellant filed an application for the transfer of that license to it with the Mayor and Council of the Borough of Oakland. Proper notice of the application was published.

On August 3, 1962 the cited statute became effective. It provides (N.J.S.A. 33:1-12.31):

"On and after the effective date of this act no person, as the same is defined in section 33:1-1 of the Revised Statutes, shall, except as

hereinafter provided, acquire a beneficial interest in more than a total of 2 alcoholic beverage retail licenses, but nothing herein shall require any such person who has, on the effective date of this act, such interest in more than 2 such licenses to surrender, dispose of, or release his interest in any such license or licenses."

N.J.S.A. 33:1-12.35 provides: "Nothing in this act shall affect the right of any holder of retail licenses heretofore acquired to continue to hold, use and renew such licenses."

The matter of the application for transfer of the license was first heard by the mayor and council on August 7, 1962 and continued to September 4. On that date, the mayor and council denied the application on the ground stated above, and, as noted, that action was affirmed by the Division.

The problem before us is whether a party who had entered into a contract to purchase a license prior to the effective date of the cited act was entitled to have the issuing authority pass upon its application thereafter (1) on the theory that it would not thereby be acquiring a "beneficial interest" in the license since it already held such an interest therein, and (2) by virtue of the statutory saving clause, "but nothing herein shall require any such person who has, on the effective date of this act, such interest in more than 2 such licenses to surrender, dispose of, or release his interest in any such license or licenses."

Appellant's position is, simply, that it had a "beneficial interest" in the license in question prior to the effective date of the act because of its contract and by virtue of the fact that in the ordinary course, and had the statute not been used as a reason for denial by the control agencies, the transfer would have been approved. However, appellant supports its argument solely by resort to dictionary definitions of the words, "beneficial interest." Solution of the problem cannot be had in such manner, but must be approached in the light of settled concepts as to the nature and exercise of a liquor license under the regulatory statute and the interpretive cases.

Some light is cast upon the problem by the recent decision upholding the constitutionality of the ...


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