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Karam v. Alcoholic Beverage Control Board of West Orange

Decided: August 8, 1968.

EMILE J. KARAM, INDIVIDUALLY, AND T/A THE CREST, AND FRANK O'HARA, INC., A CORPORATION OF THE STATE OF NEW JERSEY, T/A O'HARA'S CAFE, PLAINTIFFS-APPELLANTS,
v.
ALCOHOLIC BEVERAGE CONTROL BOARD OF WEST ORANGE, AND RALLO'S RESTAURANT & PANTRY, ET AL., DEFENDANTS-RESPONDENTS



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

Conford

[102 NJSuper Page 292] Two neighboring owners of licensed premises appeal from the affirmance by the Division of Alcoholic Beverage Control of the approval by the West Orange Board of Alcoholic Beverage Control (West Orange Board) of a transfer of a plenary retail consumption license from Green's Hotel, Inc., at 103 Pleasant Valley Way, to

Rallo's Bar, Inc (Rallo's), at premises theretofore designated as 650 Eagle Rock Avenue, but changed to 3 Beasley Street (identical premises) for purposes of the application for the transfer.

The significant issue raised is whether the location of the transferee was impermissible under the provisions of the West Orange ordinance which bars the grant or transfer of such a license to premises "within a distance of 500 feet from any other premises then covered by" a similar license. Specifically, appellants argue that their respective premises, each of which has such a license, are less than 500 feet from Rallo's premises. We decide that Rallo's is less than 500 feet from O'Hara's Cafe, thereby invalidating the transfer, and consequently do not reach the question of illegal propinquity to the other premises in question, The Crest.

A review of the legal criteria for measurement of the pertinent distance will precede an outline of the facts.

The ordinance provides that the 500-foot distance "shall be measured in the same manner as required by statute for the measuring of 200 feet relative to schools or churches." That statute, N.J.S.A. 33:1-76, provides that the "two hundred feet shall be measured in the normal way that a pedestrian would properly walk from the nearest entrance of said church or school to the nearest entrance of the premises to be licensed." Of the various ways, if more than one, by which a pedestrian can properly go from one place to another, the shortest is to govern. Presbyterian Church, etc. v. Div. of Alcoholic Bev. Con., 53 N.J. Super. 271, 279 (App. Div. 1958). Finally, applying the practical construction by the Division for many years of the term, "nearest entrance," as recognized by us in the case just cited, the measurement should be "between points on the sidewalk intersecting (sic) any walk which a person would use in entering the properties in question." (Id., at p. 276). We take this to mean the point at which the line between the sidewalk and the premises proper would intersect a line from the entrance

door to the nearest sidewalk which a pedestrian would normally traverse in leaving or entering the premises, as the case might be.

For some time prior to the original application giving rise to this dispute Rallo's Restaurant had been operating (under the same proprietary interest), pursuant to a zoning variance necessitated by the fact that it was in a residential zone, in a two and one-half story converted dwelling on the south side of Eagle Rock Avenue in West Orange, about 80 feet east of the southeast corner of the intersection of Eagle Rock Avenue and Pleasant Valley Way. O'Hara's Cafe, the other measuring point here pertinent, is situate on the west side of Pleasant Valley Way, distant about 75 feet north of the northwest corner of the same street intersection. The entrance to Rallo's was always on Eagle Rock Avenue, the natural front of the building, with a prominent name sign affixed thereon. The records of the municipal zoning board, building inspector and tax assessor show the address of the premises to have been 650 Eagle Rock Avenue. The distance from this entrance on Eagle Rock Avenue to the point where a line from O'Hara's Cafe's entrance intersects the sidewalk in front of it, by any normal pedestrian route, is less than 290 feet. Thus the distance between the respective critical locations was prima facie substantially under the 500-foot minimum of the ordinance.

Not abashed by the foregoing difficulty, Rallo's filed for approval of the transfer with the West Orange Board by specifying its address as 3 Beasley Street (that being the street intersecting Eagle Rock Avenue to the east of the premises). This was deemed colorable, since Rallo's has a parking lot east of its building occupying the southwest corner of the intersection of Eagle Rock Avenue and Beasley Street,*fn1 and the building had a side entrance on its east side (apparently originally a delivery entrance), designated on

the application for the transfer as the "bar entrance." Thus the "distance" from O'Hara's Cafe was swollen by the assumption that the hypothetical patron-pedestrian, bored with the variety of drink (or company) available at O'Hara's, and eager to sample that afforded by Rallo's, would saunter right past Rallo's front entrance on Eagle Rock Avenue, proceed around the corner, walk southerly up the sidewalk on Beasley Street to a point sufficient to make the total distance traversed 500 feet, and effect his entry to the premises therefrom across the parking lot.

However, the West Orange Board did not view the matter as quite that simple. Although three of its five members were sympathetic with the objective of adding another fine restaurant, suitably accoutered with a liquor license, to an area already noted for fine dining places,*fn2 they wisely perceived that the thirsty patron enroute from O'Hara's might enter Rallo's from its front entrance, or failing that, by its side entrance but via the parking lot from Eagle Rock Avenue, proceeding directly along the east side of the building to that entrance. This would not increase the distance from O'Hara's Cafe anywhere near enough to add up to the 500 feet which the ordinance commanded as ...


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