Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Carton, J.A.D.
Defendant tavern owner appeals from an order of the Director of the Division of Alcoholic Beverage Control suspending its plenary retail consumption license for 50 days for violation of Rules 1 and 24 of State Regulation 20. The suspension has been stayed pending this appeal.
Rule 1 prohibits a licensee from selling any alcoholic beverage to any person "actually or apparently intoxicated." Rule 24 provides that no licensee shall permit "any actually or apparently intoxicated person to work in any capacity in and upon the licensed premises."
The issues in this case are essentially factual. Four investigators of the Division entered the defendant's establishment on December 23, 1963. Two of these investigators testified at the hearing before the Division. At about 10:20 P.M. they declared that there were approximately 20 persons in the 35 X 20 foot barroom, some sitting at tables or at the bar and others standing. Their testimony was to the effect that a number of the patrons and also one of the two women who were serving beverages had the appearance of being intoxicated.
Their testimony was clear as to the observed indicia of intoxication. An agent, in describing the five or six patrons positioned at the bar, testified:
"[T]heir eyes were glassy, faces flushed, they were disheveled, hair was mussed up, one fellow had a zipper jacket on that was unzippered, his shirt was out, he went to go in the men's room and bumped into a table or chair on his way to the men's room."
The agent identified one of the patrons who appeared to be intoxicated and described his conduct in some detail. A sample of the beverage seized from this patron was introduced
in evidence at the hearing. A chemical analysis showed that this sample contained alcohol suitable for beverage purposes.
The investigator, in describing the conduct and appearance of one of the persons serving beverages, said:
"[H]er face was flushed, her eyes were glassy, she stumbled behind the bar, when pouring drinks she spilled some on the bar, her hair was disheveled. * * * She walked and bumped into the bar, and when she was talking her words were running together, her speech was slurred. She attempted to sing."
This witness also averred that he saw her consume some drinks and that she appeared to be intoxicated. He testified further concerning her conduct: "First she poured it, she overflowed the glass, one time she missed the glass and it went on the bar."
On behalf of the licensee, several of the patrons who were present on the night in question insisted that they were not intoxicated and observed no one in the tavern in that condition. Testimony was also offered to the effect that the woman assertedly serving the customers with beverages had not, in fact, served anyone and that she was not intoxicated nor had the appearance of being so. The witnesses on ...