Sullivan, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D. Sullivan, P.J.A.D. (concurring).
Appellants Raymond Pilon and John A. Craner (the licensees) are the holders of plenary retail consumption license C-224 for premises known as Muggsy's Friendly Tavern located at 839 Main Street, Paterson. On March 17, 1969 they were found guilty by the Alcoholic Beverage Control Board of the City of Paterson (the Board) of five violations and their license was suspended for a total of 75 days. On appeal to the Division of Alcoholic Beverage Control (the Division), the Director affirmed. The present appeal followed.
Appellants raise three points, summarized as follows: (1) the findings below were not supported by substantial evidence and should be set aside; (2) Rule 6 of State Regulation 15 is unconstitutional in that it deprives appellants of due process of law, and (3) since the charges arose out of a single incident, the penalty is excessive and should be reduced to 30 days.
We find the first point to be without merit. There was testimony that at approximately 3:35 A.M. on December 8, 1968 Emil Peri, a Paterson police detective, while on routine patrol observed that the licensees' tavern was still open, notwithstanding the 3 A.M. closing hour. When he entered the premises he found from 20 to 30 people inside, many of them still sitting at the bar drinking. Pilon, one of the owners, was still serving customers at the bar. When he identified himself to Pilon, the latter allegedly became
abusive and grabbed, pushed and assaulted him. During the affray one John Seager, a customer, came to Pilon's assistance and grabbed Peri, who thereupon placed them both under arrest. Later Pilon pleaded guilty to creating a disturbance while under the influence of liquor (N.J.S.A. 2A:170-30) and was given a suspended sentence. Peri testified Pilon had later apologized to him, stating "if he wasn't drinking this wouldn't have happened."
Thereafter, disciplinary proceedings were instituted against the licensees charging the following violations: (1) permitting a brawl to take place on the licensed premises in violation of Rule 5 of State Regulation 20; (2) hindering and delaying Peri in the performance of his duty, in violation of Rule 35 of State Regulation 20; (3) selling and serving alcoholic beverages after hours, in violation of the local ordinance; (4) failing to have the licensed premises closed between 3 A.M. and 3:35 A.M., in violation of the local ordinance, and (5) permitting Pilon to work in the licensed premises while actually or apparently intoxicated, in violation of Rule 24 of State Regulation 20. The Board found the licensees guilty and imposed a suspension of 15 days on each charge. On appeal the transcript of the testimony before the Board was received in evidence and additional testimony was adduced before a hearer. His report and recommendations upholding the suspension were adopted by the Director.
The licensees argue that while the test here applicable is whether the factual findings of the administrative tribunal are supported by substantial evidence, Hornauer v. Div. of Alcoholic Beverage Control , 40 N.J. Super. 501, 504 (App. Div. 1956), the evidence does not support the administrative determination because of the alleged incredibility of the testimony of Peri. They also argue that the Director failed to make an independent determination as to Peri's credibility. We find neither contention to be meritorious. The hearer's report, which was adopted by the Director, specifically found Peri's testimony to be forthright
and credible, rejected the testimony of appellants' witnesses as contradictory and incredible, and found that the charges had been established by the preponderance of the evidence. The factual findings of the Director were supported by substantial evidence, i.e. , a reasonable man upon consideration of the entire record could reasonably have concluded that the violations charged did in fact occur. Hornauer v. Div. of Alcoholic Beverage Control, supra , at 504. See also Atkinson v. Parsekian , 37 N.J. 143, 149 (1962). The choice of accepting or rejecting the testimony of witnesses rests with the administrative agency, and where such choice is reasonably made it is conclusive on appeal. Hornauer, supra , 40 N.J. Super. at 506.
We likewise find no merit to the licensees' contention that the form of the appellate hearing in the Division, and the Division's requirement that an appellant carry the burden of establishing that the Board's action was erroneous, amounted to a denial of due process which compels reversal.
The Director of the Division of Alcoholic Beverage Control is empowered to hear and conduct all appeals and to establish appellate rules and procedures. N.J.S.A. 33:1-38. State Regulation 15 establishes the procedure for appeals. Rule 6 thereof provides that:
All appeals [to the Director] shall be heard de novo except as otherwise provided in Rule 8 hereof * * * but the burden of establishing that the action of the respondent issuing authority was erroneous ...