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Ishmal v. Division of Alcoholic Beverage Control

Decided: May 24, 1971.

JOHNNIE MAE ISHMAL, DEFENDANT-APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGE CONTROL AND JOSEPH KEEGAN, DIRECTOR OF THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL, PLAINTIFFS-RESPONDENTS



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the Court was delivered by Schettino, J.

Schettino

Pursuant to a plenary liquor consumption license, covering the licensing period July 1, 1967 to June 30, 1968, Mrs. Johnnie Mae Ishmal operated a tavern, the Back Room, in Newark, N.J. On June 20, 1968, following a disciplinary hearing, the Newark Municipal Board of Alcoholic Beverage Control revoked Mrs. Ishmal's license. The State Director of the Division of Alcoholic Beverage Control affirmed the action of the municipal licensing authority. On appeal, in an unreported per curiam opinion, the Appellate Division concluded that the Director's determinations were supported by substantial evidence in the record. We agreed to review the matter.

By N.J.S.A. 33:1-31(g), local licensing authorities [here the Newark Board of Alcoholic Beverage Control, N.J.S.A. 33:1-5.1] are granted power to "suspend or revoke any license issued by it, for * * * [a]ny violation of rules and regulations. * * *" See, Benedetti v. Bd. of Com'rs of Trenton, 35 N.J. Super. 30 (App. Div. 1955); Voight v. Board of Excise, 59 N.J.L. 358 (Sup. Ct. 1896). It was

pursuant to this statutory authority that the Board in the present case acted to revoke Mrs. Ishmal's license, finding that certain conduct occurring in and around the Back Room Tavern violated rules 4 and 5 of the State Liquor Regulation 20. Insofar as they are here pertinent to the instant appeal, those rules provide:

Rule 4. No licensee shall allow, permit or suffer in or upon the licensed premises * * * any unlawful possession of or any unlawful activity pertaining to narcotic drugs as defined by R.S. 24:18-2 * * *

Rule 5. No licensee shall engage in or allow, permit or suffer in or upon the licensed premises any * * * immoral activity * * * nor shall any licensee allow, permit or suffer the licensed place of business to be conducted in such manner as to become a nuisance.

The Municipal Board specifically concluded that the Back Room Tavern had become a "hang out" for narcotics addicts and "pushers" and constituted a nuisance; that drug traffic was rampant on the licensed premises; that the licensee's efforts to eliminate the drug problem on the licensed premises were merely "token"; and that the revocation of Mrs. Ishmal's license was an appropriate sanction for suffering such a nuisance to exist.

In affirming the findings and conclusions of the Municipal Board, the Director held that the record made before the local board supported an inference that arrangements for the sale and procurement of drugs were concluded on the licensed premises and that such arrangements constituted "unlawful activity" within Rule 4; that the mere "congregation of drug addicts" or "the mere presence of a person for the purpose of selling, obtaining, transferring or using such drugs" is immoral activity and a nuisance within Rule 5; and that Mrs. Ishmal suffered both sorts of conduct to exist.

On this appeal, the licensee argues that the findings of violations and the imposition of sanctions were error, contending that her persistent efforts to eradicate the problems caused by the presence of drug addicts and pushers on the premises belie the conclusion reached below, that she "allowed, permitted or suffered" any conduct proscribed by the

rules. We agree with Mrs. Ishmal that her conduct convincingly demonstrates that she did not permit, allow or suffer rule violations to occur in any manner.

At the disciplinary hearing, several members of the Newark Police Department testified to the effect that the tavern and its immediate vicinity were focal points of narcotics activity; and that on account of the "continuous pattern" of illicit drug traffic present there, the tavern had been kept under constant police surveillance from December 1965 through the end of 1967. At least 20 persons were arrested, approximately half of them on the tavern premises, for the sale or possession of narcotics during this period. Of those persons arrested outside the ...


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