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In re Determination by Director of the Division of Alcoholic Beverage Control

May 8, 2007

IN RE DETERMINATION BY DIRECTOR OF THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL THAT THE XANADU REDEVELOPMENT PROJECT AT THE CONTINENTAL AIRLINES ARENA SITE AT THE MEADOWLANDS SPORTS COMPLEX MEETS ALL JURISDICTIONAL REQUIREMENTS FOR THE ISSUANCE OF ANY NECESSARY SPECIAL CONCESSIONAIRE PERMITS PURSUANT TO N.J.A.C. 13:2-5.2
IN RE ADVISORY OPINION BY THE OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LAW AND PUBLIC SAFETY



On appeal from the Division of Alcoholic Beverage Control.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: March 20, 2007

Before Judges Kestin, Graves and Lihotz.

On June 23, 2005, the Director of the Division of Alcoholic Beverage Control (ABC or the Division) issued an "advisory opinion" at the request of the Meadowlands Mills/Mack-Cali Limited Partnership (requestor), described as "the master developer" of a tract "within the Meadowlands Sports Complex pursuant to a redevelopment agreement with the New Jersey Sports and Exposition Authority" (NJSEA) engaged in a project referred to as "Meadowlands Xanadu". The requestor sought to determine "the availability of special concessionaire permits allowing the service of alcoholic beverages, as provided for in N.J.A.C. 13:2-5.2, in the context of this project."

If the Director determined that such permits were available, he and the ABC would be the licensing authority pursuant to the regulation and N.J.S.A. 33:1-42, see also N.J.S.A. 33:1-39, -74, rather than the local licensing authorities under the terms and limitations ordinarily applicable. The Director concluded that special concessionaire permits were available. The New Jersey Restaurant Association and East Rutherford Restaurant Appellants filed one appeal; Hartz Restaurant Associates appealed separately. In a consent order, we consolidated the appeals.

An advisory opinion is a non-binding statement by a court or an administrator interpreting the law on a matter submitted for that purpose. See Black's Law Dictionary 1119 (7th ed. 1999). The issuance of advisory opinions by federal courts has always been prohibited because such matters do not meet the "case or controversy" requirements contained in U.S. Const. art. III, § 2, cl. 1. See Muskrat v. U.S., 219 U.S. 346, 356-57, 31 S.Ct. 250, 254, 55 L.Ed. 246, 250 (1911); Hayburn's Case, 2 U.S. 409, 410, 1 L.Ed. 436 (1792). See also Massachusetts v. Environmental Protection Agency, ___ U.S. ___, ___, 127 S.Ct. 1438, 1452, 167 L.Ed. 2d 248, 267 (2007). Notwithstanding the absence of a case or controversy standard in the State Constitution, courts in New Jersey do "not render advisory opinions or function in the abstract." Crescent Pk. Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971).

[W]e have appropriately confined litigation to those situations where the litigant's concern with the subject matter evidenced a sufficient stake and real adverseness. In the overall we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of "just and expeditious determinations on the ultimate merits." [Id. at 107-08 (quoting Tumarkin v. Friedman, 17 N.J. Super. 20, 21 (App. Div. 1951), certif. denied, 9 N.J. 287 (1952).]

As a consequence of these policies, State courts are enjoined to "decline[] to review mere 'opinions' or 'conclusions' of administrative officers on which no official action was based." New Jersey Civil Service Ass'n v. State of New Jersey, 88 N.J. 605, 611 (1982). Clearly, judicial review of an administrative agency's advisory opinion is, in itself, an advisory opinion. See id. at 612. The prohibition against review of advisory opinions is not absolute, however. It may be overcome where an administrative determination "is tantamount to final agency action[,]" i.e., resulting in "action . . . directly felt by appellants." Ibid. Nevertheless, "[i]n considering [such a] claim we [must] not intrude into agency policymaking." Ibid.

In his opinion, the Director reviewed his agency's developing "authority to issue licenses and permits in circumstances that are warranted by the public interest[,]" especially where activities subject to licensure were conducted on public property, "without distinction as to municipality or reference to license limitation." See N.J.S.A. 33:1-42. He also analyzed the relationship between the requestor and the NJSEA, in the light of the growing governmental involvement in economic development, observing that these projects are best addressed by an agency, such as the ABC, having the expertise and the state-wide jurisdiction to fully address the State economic and policy considerations involved in permitting alcohol service at such venues. Utilization of a specific permit, such as a special concessionaire permit, was determined by the ABC nearly 30 years ago to be the appropriate method to regulate the sale of alcohol on property owned or controlled by a governmental entity.

The Director viewed the fundamental criterion for the assertion of special concessionaire jurisdictional authority to be "governmental involvement, in either an ownership or a control capacity."

NJSEA's status "as an instrumentality of the State exercising public and essential governmental functions" is established by statute, N.J.S.A. 5:10-4a, and, according to the Director, "the Division has issued a number of special concessionaire permits to operators of premises owned or controlled by NJSEA . . . ." The Director viewed the requestor's ground lease for a seventy-five-year term as "unquestionably" leading to the conclusion that "NJSEA retains ownership of the land[,]" and that its "ownership of the project land is sufficient to evidence the basis for the issuance of special concessionaire permits[,] . . . regardless of its direct relationship with the special concessionaire permittees . . . .

[T]here is no dispute that Xanadu is part of a governmentally sponsored redevelopment project found to ...


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