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Danton v. State

Decided: April 12, 1976.

WILLIAM A. DANTON, APPELLANT,
v.
STATE OF NEW JERSEY, ON BEHALF OF THE DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF ALCOHOLIC BEVERAGE CONTROL; LEONARD D. RONCO, DIRECTOR OF DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENT



Fritz, Seidman and Milmed. The opinion of the court was delivered by Milmed, J.A.D.

Milmed

This is an appeal from a decision of the Director of the Division of Alcoholic Beverage Control suspending appellant William A. Danton for three months from his position as senior inspector in the Division. Danton had been charged, in three specifications, with having acted and behaved in his official capacity in such a manner as to dishonor and discredit the Division, in violation of Rule 5 of Regulation No. 1 of the Enforcement Bureau of the Division, and with having engaged in conduct constituting just cause for disciplinary action against him, in violation of N.J.S.A. 33:1-4(d). The matter was heard before a Division hearer, whose findings and conclusions were adopted by the Division Director. Danton was found guilty of violating Rule 5 as to two of the specified charges. Specifically, he was found guilty of making threatening remarks to the manager of a licensed tavern at which he was conducting an official inspection and of pouring into a sink the contents of a bottle of wine, without valid cause. He was found not guilty of the remaining specified charge, i.e. , that by his "actions and words" he "solicited and expressed" to the manager of the tavern his "willingness to accept from him something of value."

On this appeal Danton contends in essence that (1) the Division should have been barred from charging him because of an inordinate delay in the institution of proceedings; (2) the regulation under which he was suspended is unconstitutionally vague; (3) there is insufficient credible evidence present in the record to sustain the findings, and (4) the period of suspension imposed is "excessive and harsh".

The manager of the tavern complained against Danton to the Division some four months after the alleged occurrences. About ten months thereafter the Division confronted Danton

with the substance of the charge, and some three months after that a formal charge was served upon him. The hearing was held two months later.

The delay complained of is that between the date of the incident and the service of charges. Danton claims that he was substantially prejudiced by the delay since "Recall was difficult and negative inferences were drawn therefrom by the Hearer."

"Delay will not, generally, affect the validity of administrative decisions," In re Darcy , 114 N.J. Super. 454, 462 (App. Div. 1971), particularly where no prejudice is shown. Id. We have carefully canvassed the record and we find no substance to appellant's claim of "substantial prejudice." The clarity, precision and detail of Danton's testimony on direct examination at the Division hearing flatly contradicts his claim that "[R]ecall was difficult." In re Arndt , 67 N.J. 432 (1975), relied upon by appellant, is inapposite. There the court pointed out that it was clear from the language of the pertinent statute, i.e., N.J.S.A. 39:4-50.4, "that the Legislature contemplated that the Director [of the Division of Motor Vehicles] should move promptly to process the violation [refusal to submit to a breath chemical test after having been arrested on suspicion of driving while under the influence of intoxicating liquors] after notification by the police." As the court observed:

This direction is apparently designed primarily to serve the statutory policy of protecting the traveling public by removing the offending driver from the highways with reasonable dispatch. [At 435-436]

No similar statute is present in the matter now before us. Beyond this, while we find no reasonable excuse for, and do not condone, the Division delay in this case, since there has been no showing of prejudice we hold the administrative determination to be unaffected thereby.

We find no merit in appellant's claim that the regulation under which he was suspended is unconstitutionally vague.

He was charged with violating both Rule 5 of Regulation No. 1 of the Enforcement Bureau of the Division and N.J.S.A. 33:1-4(d). The charge of violating Rule 5 was that he "acted and behaved" in his "official capacity in such a manner as to dishonor and discredit the Division." The charge of violating N.J.S.A. 33:1-4(d) was that he "engaged in conduct constituting just ...


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