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Plata v. Division of Alocholic Beverage Control

May 06, 2003

OLGA PLATA, PETITIONER-APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENT-RESPONDENT.



On appeal from a final decision of the Division of Alcoholic Beverage Control.

Before Judges King, Lisa and Fuentes.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 29, 2003

Petitioner Olga Plata appeals from the final order of the director of the Division of Alcoholic Beverage Control (ABC) denying her application for the issuance of a new plenary retail consumption license pursuant to N.J.S.A. 33:1-12.18. We address here whether an applicant for relief under this statute is legally required to both submit a license renewal application to the municipal issuing authority and file a separate verified petition for relief with respondent, the ABC director, before the expiration of the statutory deadline.

We hold that an applicant for relief pursuant to N.J.S.A. 33:1-12.18 is only required to file an application with the director's designee. This application must be filed within sixty days following the expiration of the license renewal period and be accompanied by a filing fee of $100 payable to the director. Ibid. Here, petitioner filed the completed application, together with the required filing fee, with the director's designee, the municipal issuing authority, within the statutory time-frame. In this light, the director's decision denying petitioner's application based on her failure to timely file a separate verified petition was arbitrary, capricious and unreasonable and not supported by any legal authority.

I.

The salient facts are not in dispute. In November 2000, petitioner purchased a plenary retail consumption license issued by the Jersey City Municipal Board of Alcoholic Beverage Control. The license was for a period of one year, with an expiration date of July 30, 2001. Petitioner used the license to operate a tavern in Jersey City until April 2001, when she separated from her husband. Sometime thereafter, petitioner verbally agreed to sell the license to Robert Paulino Vidal.

Since petitioner was out of state at the time the license expired, she directed Vidal to renew the license with the municipal ABC authority in Jersey City. In June 2001, Vidal made two unsuccessful attempts to renew the license. The first time he did not have the proper application form nor the required filing fee. The second time he was rebuffed because Plata, as the owner of the license, had not signed the renewal application. At this time, Vidal was told by the secretary of the Jersey City ABC Board that he needed to file a duly completed application with the municipality prior to September 28, 2001, and obtain a "special ruling" authorizing the renewal of the license.

On September 8, 2001, Vidal returned to the municipal ABC Board with a completed application signed by Plata and accompanied by the required fee. The secretary of the municipal Board accepted the application on behalf of the State ABC director. In fact, by letter dated January 22, 2002, the Deputy Attorney General representing the director advised petitioner's counsel that the "signed application was actually submitted in advance of September 28, 2001, which satisfies the application deadline of N.J.S.A. 33:1-12.18."

Despite this acknowledgment of compliance, petitioner was advised that she needed to file a separate verified petition with the State ABC Director specifically requesting a "special ruling" authorizing the issuance of a new license. In a document entitled "Procedure for Licensees to Petition the Director for a Special Ruling to Authorize Issuance of a 'New' License Based Upon Failure to Renew Due to Circumstances Beyond Licensee's Control," the director provides the following description of the information which must be included in this verified petition.

In order to process a request for a Special Ruling, it is necessary for you to submit to this Division a Verified Petition on or before September 28, 2001, ALONG WITH A VERIFIED PETITION FILING FEE OF $100.00 (CERTIFIED CHECK, ATTORNEY TRUST CHECK OR BANK MONEY ORDERS ONLY) MADE PAYABLE TO THE NEW JERSEY DIVISION OF ABC. *Note - this fee is separate from the Renewal Application Filing Fee of $100 that is submitted to the issuing authority at the time of filing the renewal application with them. A Verified Petition is, basically, an affidavit made by a licensee with direct personal knowledge concerning the required facts, which is signed and sworn to before a notary public or any other person authorized to administer oaths in the State of New Jersey. Your Verified Petition should include the following information:

1. Complete identification of licensee and license number;

2. Proof that the renewal application and fees were filed with the issuing authority on or before September 28, ...


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