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In re Application for Relief Pursuant to N.J.S.A. 33:1-12.18 for the 2005-2006 License Term Mackey's Pub

September 7, 2007


On appeal from a Final Decision of the Division of Alcoholic Beverage Control, Agency No. 06-03-4397.

Per curiam.


Submitted July 17, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

Petitioner Mackey's Pub, Inc., appeals from an agency decision denying its untimely application for liquor license renewal and from the denial of its motion for reconsideration. After carefully considering petitioner's arguments in light of the facts and the applicable law, we affirm.

Petitioner was the holder of plenary retail consumption license number 1321-33-006-003, issued by the Borough of Keansburg. Petitioner filed a Chapter 11 Bankruptcy Petition on December 10, 2004, during the period that the liquor license was still in effect. That Petition was later converted to Chapter 7 Bankruptcy and, in March 2005, all of the assets of the company were transferred to the Bankruptcy Trustee. On August 3, 2005, the Bankruptcy Trustee filed a Notice of Abandonment of the liquor license for Mackey's Pub. A Certificate of No Objection was filed with the Bankruptcy Court on September 22, 2005, and the case was later closed. In March 2006, petitioner petitioned the Division of Alcoholic Beverage Control (ABC) to reinstate the liquor license. On April 27, 2006, the Director of ABC issued an Order Denying Relief. On August 22, 2006, the ABC denied petitioner's motion for reconsideration.

Pursuant to N.J.S.A. 33:1-26, the term of a liquor license runs from July 1 of one year to June 30 of the following year and automatically expires on June 30 each year. The licensee then has a thirty day grace period in which to renew the license. N.J.S.A. 33:1-12.13. Thereafter, a licensee may submit a late-filed 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 Director of the ABC issues a special ruling granting relief. The Director lacks authority to grant relief beyond the September 28 date.

Petitioner did not seek to renew its 2005-2006 license until April 2006, but now argues that it could not renew the license because of the pending bankruptcy under which only the bankruptcy trustee had authority to seek to renew the license. The Director rejected petitioner's argument that the bankruptcy suspends the application deadlines and found that petitioner did not comply with the actual filing requirements nor did it take steps to be in substantial compliance. We agree.

The scope of review of a final decision reached by a State administrative agency is limited. Plata v. Div. of Alcoholic Beverage Control, 360 N.J. Super. 92, 100 (App. Div. 2003). An administrative agency's action is presumed to be valid and reasonable. In re Amendment to Recreation and Open Spaces Inventory, 353 N.J. Super. 310, 327 (App. Div. 2002). The decision should be reversed only if it is arbitrary, capricious or unreasonable or if it is not supported by substantial credible evidence in the record as a whole. In re Taylor, 158 N.J. 644, 657 (1999). We accord substantial deference to the interpretation an agency gives to a statute that the agency is charged with enforcing. Merin v. Maglaki, 126 N.J. 430, 436-37 (1992).

Here, petitioner failed to file its 2005-2006 renewal application with the municipal issuing authority by September 28, 2005. The sixty-day time period is jurisdictional and cannot be waived or relaxed. Cavallaro 556 Valley St. Corp. v. Div. of Alcoholic Beverage Control, 351 N.J. Super. 33, 38 (App. Div. 2002). Therefore, the petitioner can only be granted relief through the substantial compliance doctrine.

Where a licensee fails to meet the September 28 deadline, the Director of the ABC has authority to find substantial compliance with the statutory timeframes for renewal of plenary retail liquor licenses. In re Application of Virgo's, Inc., 355 N.J. Super. 590, 593 (App. Div. 2002). Under the substantial compliance doctrine, the Director "cannot alter the specific dates on which an application for renewal is due, but can determine in fairness whether to accept a timely application, even though the application may be technically deficient." Id. at 596. Substantial compliance doctrine applies where there is:

(1) a lack of prejudice to the opposing party; (2) a series of steps taken to comply with the statute involved; (3) general compliance with the purpose of the statute; (4) reasonable notice of the party's claim; and (5) a reasonable explanation of why there was not strict compliance with the statute.

[Id. at 595.]

The doctrine was applied where a former licensee made multiple attempts to file timely renewal applications and the actual licensee also filed timely, but defective, renewal applications. Ronnie Trent Enterprises, ABC Bulletin 2296, Item No. 2, at 13-14 (1978). There, the Director noted that the former licensee had diligently attempted to preserve the license, had pursued a judicial remedy to regain control over the corporate license and had taken a series of steps to comply with the statute. In the instant matter, the bankruptcy trustee abandoned the liquor license in August 2005, during the grace ...

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