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In re Application of El Piscis

December 04, 2002

IN THE MATTER OF THE APPLICATION OF: EL PISCIS, INC., HOLDER OF PLENARY RETAIL CONSUMPTION LICENSE NUMBER 0912-33-090-004 ISSUED BY THE MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE TOWN OF WEST NEW YORK.


On appeal from a Final Decision of the New Jersey Division of Alcoholic Beverage Control.

Before Judges Skillman and Lefelt.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2002

El Piscis, Inc., the holder of a plenary retail alcohol consumption license issued by the Town of West New York, appeals from orders by the Director of the Division of Alcoholic Beverage Control denying relief under N.J.S.A. 33:1-12.18 and N.J.S.A. 33:1-12.39. We reverse and remand for further proceedings under N.J.S.A. 33:1-12.39.

I.

The pertinent facts and procedural history follow. On June 10, 1998, El Piscis timely filed its license renewal application for the 1998-99 term. West New York, on June 17, 1998, however, denied El Piscis' application, citing that the police"have reported an investigation concerning the identity of the owner(s) of said license" and"the premises [have] not been in operation for approximately one year." On July 16, 1998, El Piscis appealed the denial of its license renewal to the ABC Division and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing.

The administrative litigation concerning El Piscis' license renewal continued until February 17, 2000 when the OAL settled the dispute and incorporated the settlement into an initial decision. The settlement specified that a particular person would make"[a]n application for renewal" and further provided that"[i]f there has been a change of ownership that the necessary forms for the change of ownership be submitted to [West New York]." The settlement also indicated that the"location where this license [was] going to be operating out of [was to] be enunciated in said application." The settlement also indicated that if there were no location for the license at the time of renewal, then"the license may be renewed as a'pocket license.'" The initial decision settlement became final when the Director failed to act within forty-five days. N.J.A.C. 1:1-18.6(c).

On March 15, 2000, before the 45 day review period under N.J.A.C. 1:1-18.6(c) expired, the ABC Division notified El Piscis that the dispute regarding the 1998-99 license renewal had been resolved and that the action contemplated by the settlement had been taken. The Division also told El Piscis that West New York had advised it that no renewal application for the 1999-2000 license term had been filed.

Consequently, the Division advised El Piscis to seek relief under N.J.S.A. 33:1-12.18. It stated that"[w]hen the Division reviews the submission, if sufficient, a Special Ruling will be granted authorizing renewal of the license for 1999-2000 license term." The Division further advised that until a special ruling is issued,"no action [should] be taken by West New York regarding renewal of this license for any license term."

On April 28, 2000, El Piscis filed its petition seeking relief under N.J.S.A. 33:1-12.18 for the 1999-2000 term. Under this statute, the Director can grant a new license to applicants who petition for relief before September 28 of the year license renewal is sought, provided timely license renewal was prevented by circumstances beyond the licensee's control.

On May 2, 2000, the ABC Division advised El Piscis to also file a copy of the petition with West New York along with application fees for the 1999-2000 license term. Also, the Division again advised El Piscis that West New York will defer any action pending the Director's determination on the petition.

In addition, El Piscis on May 19, 2000 sought a special ruling from the ABC Director under N.J.S.A. 33:1-12.39, permitting renewal of its inactive license for four license terms commencing with the 2000-2001 term. El Piscis explained that it intended"to use the liquor license for the operation of a restaurant at a location to be determined in the Town of West New York or to sell it. I anticipate that the liquor license will be utilized within the next 1 to 4 years."

The applicant paid its $1,236 renewal fee, and on June 8, 2000, filed its renewal application with West New York for the 1999-2000 term. Because the license was not being actively used at a particular place of ...


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