On appeal from New Jersey Division of Alcoholic Beverage Control.
Antell, Brody and Long. The opinion of the court was delivered by Brody, J.A.D.
In this disciplinary proceeding the Director of the Division of Alcoholic Beverage Control found three violations for which he suspended the plenary retail distribution license issued to H & H Wine and Spirit Shop, Inc. (H & H) a total of 17 days. H & H appeals a 15-day suspension imposed for the sale or delivery of beer to a person under the legal age to purchase and consume alcoholic beverages.*fn1 The Director rejected the initial decision of an administrative law judge (ALJ) who had dismissed the charge. H & H challenges the Director's interpretation of the regulation and his findings. We affirm the suspension.
Two witnesses testified at the hearing, a state police inspector and the 22-year-old clerk who allegedly made the sale. The inspector was in his car outside the H & H store when he noticed two customers enter. He left his car and stood at the store window in order to observe more closely one of the men who appeared to be under age.
The inspector testified that he saw the young man remove an 8-pack of beer from the cooler in the back of the store, pay the clerk at the counter and carry the beer out of the store. The
two men did not stay together in the store. The young man was alone at the counter when he paid for the beer.
The clerk told a different story. He testified that he first saw the two men when they both appeared at the counter. The older man placed the beer on the counter and "[l]aid down two dollars and sixty cents on the counter," the exact price of the beer. The older man then told the younger man that he needed change to purchase cigarettes from a machine in the store whereupon the younger man handed the clerk a dollar bill and asked for change. The clerk gave the change to the younger man who immediately handed it to the older man. Both men then left the counter, the younger man carrying the beer. The clerk thereupon turned to his next customer.
The inspector approached the men after they left the store. The younger man identified himself as Harry Bowker and admitted that he was only 19 years old.
H & H was charged with violating the following portion of N.J.A.C. 13:2-23.1(a) (the regulation):
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 legal age to purchase or consume alcoholic beverages. . . .
Although he said at the close of the hearing that he would decide whether under the regulation the clerk "delivered" the beer or "suffered delivery" of the beer to Bowker when Bowker admittedly picked up the 8-pack from the counter and left the store, the ALJ made no reference to that legal question in his decision. He found that the inspector, unable to hear what was being said in the store, mistakenly believed that the money Bowker gave the clerk for change was payment for the beer. The ALJ credited the clerk's testimony and dismissed the charge.
The Director rejected the ALJ's decision on the grounds that as a matter of law the clerk ...