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Cavallaro 556 Valley Street Corporation v. Division of Alcoholic Beverage Control

May 16, 2002

CAVALLARO 556 VALLEY STREET CORPORATION, PETITIONER-APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENT-RESPONDENT.



On appeal from a Final Judgment of the New Jersey Department of Law and Public Safety, Division of Alcoholic Beverage Control.

Before Judges A.A. Rodríguez, Lefelt and Lisa.

The opinion of the court was delivered by: Lefelt, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2002

Marcello Cavallaro is president of petitioner Cavallaro 556 Valley Street Corporation, which possessed a plenary retail consumption liquor license for the Villa Marcello restaurant, located at 556 Valley Street in the City of Orange. The license had been issued by the City of Orange Municipal Board of Alcoholic Beverage Control and renewed for 1999-2000. But petitioner failed to timely renew the liquor license for 2000- 2001, and sought relief under N.J.S.A. 33:1-12.18, which permits the issuance of a new license under certain circumstances. The Director of the Division of Alcoholic Beverage Control (ABC) in a May 22, 2001 order denied petitioner's application. Petitioner appeals, and we affirm, holding that the Director is without legislative authority to consider any new license request, under N.J.S.A. 33:1-12.18, after September 28 of the year in which the license should have been renewed.

I.

Cavallaro failed to timely renew the license because of serious personal hardships. Cavallaro's father, who lives in Italy, had become gravely ill, was injured in an automobile accident and lapsed into a coma. Cavallaro was himself disabled because of a work related injury and had been financially supporting his father. Cavallaro made several trips to Italy to care for his father and was forced to temporarily close Villa Marcello. In February 2001, after Cavallaro's father's health had stabilized, petitioner submitted a license renewal application together with all outstanding fees to the local City of Orange Board of Alcoholic Beverage Control.

Because the local board lacked authority to act on the application, petitioner was referred to the State Director of the Division of ABC. Thereafter, on March 23, 2001, petitioner submitted a verified petition to the ABC Director, seeking relief under N.J.S.A. 33:1-12.18. After the Director denied petitioner's application for a new license under this statute, petitioner appealed to this court.

II.

Liquor license terms run from July 1 of one year to June 30 of the following year. N.J.S.A. 33:1-26. A license automatically expires on June 30. A thirty-day grace period is statutorily provided, however, to allow a licensee to file a renewal application after the new license term commences. N.J.S.A. 33:1-12.13. Thus, a licensee may renew its license by filing a renewal application with the municipal issuing authority no later than July 30 of the year beginning the term for which renewal is sought.

Thereafter, a licensee may submit a late application between July 30 and September 28. N.J.S.A. 33:1-12.18. However, the municipal issuing authority may not act on such a late-filed license renewal application unless the ABC Director grants relief under N.J.S.A. 33:1-12.18. This statute provides, in pertinent part, that a new license may be issued "to a person who files application therefor within 60 days following the expiration of the license renewal period." Ibid. To approve the license, "the director shall determine in writing that the applicant's failure to apply for renewal of his license was due to circumstances beyond his control." Ibid. This 60-day period ends on September 28 of the year beginning the license period for which renewal is sought. The statute in question, N.J.S.A. 33:1-12.18, thus provides a mechanism for some licensees who have failed to request renewal in timely fashion to seek relief from the ABC Director.

In this case, the Director rejected petitioner's application because "the licensee has neither complied with the requirements of N.J.S.A. 33:1-12.18 nor demonstrated 'constructive compliance' with those requirements, In re Ronnie Trent Enterprises, ABC Bulletin 2296, No. 2 (1978)." Petitioner contends that the Director abused his discretion by failing to recognize the various personal hardships and circumstances which led to its failure to renew the license in timely fashion.

III.

Because petitioner filed its application well after "60 days following the expiration of the license renewal period," the critical question raised by this appeal is whether the time frame contained in N.J.S.A. 33:1-12.18, is mandatory or directory. If a statutory time frame is mandatory, then modification or relaxation may be granted only by the Legislature. In Kohler v. Cobb, 31 N.J. 369, 376 (1960), for example, the Supreme Court found mandatory N.J.S.A. 40:46-19, which required an oath to be administered to municipal sewerage authority members and filed with the municipal clerk within thirty days after the members began their terms of office. ...


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