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Faces Inc. v. Kennedy

Decided: June 8, 1981.

FACES, INC., T/A CREATIONS, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
BARBARA KENNEDY, DEBORAH KENNEDY, KATHLEEN KENNEDY AND ROBERT KENNEDY, DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

This case involves the novel issue of whether a minor is responsible for damages sustained by a liquor establishment in lost profits resulting from a liquor license suspension caused when the minor orally fraudulently misrepresented her age to the owner of the liquor license who thereafter sold liquor to her.

Defendant Barbara Kennedy (hereinafter referred to as "defendant"), was born on October 6, 1961. On April 7, 1979, at the age of 17 and with the aid of false identification, she gained access to plaintiff's establishment for the purpose of purchasing alcoholic beverages for on-premises consumption.

Sometime before the incident in question defendant had taken her older sister's driver's license and reported it to be missing to the New Jersey Division of Motor Vehicles. As a consequence, the Division forwarded a temporary duplicate driver's license, which document precipitated the institution of the within action.

Defendant has, on occasions prior to April 7, 1979, used various forms of identification to gain access to liquor establishments. In order to gain entry to plaintiff's establishment, defendant knew she needed proof of age, knew that she would not have been admitted if she had told the doormen that she was under age, and knew she was using false identification to gain admission to plaintiff's business premises.

Once inside, defendant consumed four mixed drinks known as "ice teas," six or seven shots of Bourbon whiskey and beer chasers in between the latter. Defendant, at the time she ordered the drinks, knew that she was under age.

When defendant drove home later that night she was involved in an automobile accident. As a result of her condition at the time of the accident, it was learned that she had consumed alcohol at plaintiff's establishment. A hearing ensued before the Municipal Board of Alcoholic Beverage Control of West Orange, which suspended plaintiff's plenary retail consumption license for ten days for the unlawful sale of alcoholic beverages to a minor of 17 years of age, in violation of N.J.A.C. 13:2-23.1(a).

The suspension was affirmed on appeal by an administrative law judge, and later by the Appellate Division of the Superior Court.

The testimony at the appeal of the liquor license suspension indicated that when defendant was checked for proof of age when she entered plaintiff's premises, she showed the temporary license of her sister Deborah, who was 19. There was also a statement given to the police at the time of the accident that defendant had also displayed a birth certificate of Deborah, but this fact was not relied upon for the suspension. No one asked for any other proof, nor did anyone ask her to sign any kind of a statement that she was of age.

The decision of the local licensing board found that the plaintiff had violated N.J.A.C. 13:2-23.1(a), which states that

No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person under the age of 18 years, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises.

and N.J.S.A. 33:1-77, which states that

Anyone who sells any alcoholic beverage to a minor is a disorderly person; provided, however, that the establishment of all of the following facts by a person making any such sale shall constitute a defense to any prosecution therefor: (a) that the minor falsely represented in writing that he or she was 21 years of age or over, (b) that the appearance of the minor was such than an ordinary prudent person would believe him or her to be 21 years of age or over, and (c) that the sale was made in good faith ...


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