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Beaudoin v. Belmar Tavern Owners Association

Decided: March 24, 1987.

RENE R. BEAUDOIN, PLAINTIFF-APPELLANT,
v.
BELMAR TAVERN OWNERS ASSOCIATION AND JANE CLAYTON, MONMOUTH COUNTY CLERK, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Monmouth County.

Dreier, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

[216 NJSuper Page 179] This is the first interpretation by a New Jersey State appeals court of the "5 Year Rule" of N.J.S.A. 33:1-47.1. That statute directs the governing body to hold a referendum, when presented with the requisite petition from the qualified electors of the municipality, "on any proposed questions as to whether the hours between which the sale of alcoholic beverages at retail may be made in such municipality on weekdays, Sundays, either or both, shall be fixed as provided in such petition." The statute provides that after there has been a referendum "no

further referendum on the same question shall be held" for five years thereafter.

Plaintiff, Rene R. Beaudoin, a resident of the Borough of Belmar, appeals the Law Division's entry of summary judgment dismissing his complaint seeking to set aside a 1986 referendum question. He urges that the petition filed under the statute was insufficient and that the referendum scheduled pursuant to the petition was in violation of the statute's five year prohibition.

In September 1985 residents of the Borough of Belmar had petitioned their Board of Commissioners for a public referendum as to whether the closing hours for sale of alcoholic beverages should be rolled back on Sundays and weekdays from 2 a.m. as provided in existing municipal ordinances to 12 midnight. The Board accepted the petition and the residents of Belmar were presented with the two following questions in the November 1985 general election:

MUNICIPAL PUBLIC QUESTION NO. 1

"Shall the hours during which the sale of alcoholic beverages at retail for consumption on premises in the Borough of Belmar on weekdays, Monday through Saturday, be limited to those hours between 7:00 a.m. (commencement) and 12:00 midnight (cessation)?"

MUNICIPAL PUBLIC QUESTION NO. 2

"Shall the hours during which the sale of alcoholic beverages at retail for consumption on premises in the Borough of Belmar on Sunday be limited to those hours between 12:00 noon (commencement) and 12:00 midnight (cessation)?"

Both questions were approved by the voters at the general election.

On August 26, 1986 representatives of the defendant, Belmar Tavern Owners' Association, submitted new petitions to the Board of Commissioners seeking to expand the hours of sale from midnight until 2 a.m., as follows:

MUNICIPAL PUBLIC QUESTION NO. 1

"Shall the hours during which the sale of alcoholic beverages at retail for consumption on premises in the Borough of Belmar on weekdays, Monday through Saturday, be limited to those hours between 7:00 a.m. (commencement) and 2:00 a.m. (cessation)?"

MUNICIPAL PUBLIC QUESTION NO. 2

"Shall the hours during which the sale of alcoholic beverages at retail for consumption on premises in the Borough of Belmar on Sunday be limited to those hours between 12:00 noon (commencement) and 2:00 a.m. (cessation)?"

The Board adopted a resolution which directed the questions to be placed on the ballot if doing so would not violate N.J.S.A. 33:1-47.1 and authorized the Borough attorney "to immediately proceed to the Superior Court . . . for determination whether or not the two questions as presented have the ...


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