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In re Application for Relief Pursuant to N.J.S.A. 33:1-12.18 for the 2004-2005

February 20, 2008

IN THE MATTER OF THE APPLICATION FOR RELIEF PURSUANT TO N.J.S.A. 33:1-12.18 FOR THE 2004-2005, 2005-2006 AND 2006-2007 LICENSE TERMS.
BILLY'S SPORTS BAR, INC.



On appeal from the New Jersey Division of Alcoholic Beverage Control, No. 09-06-4799.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2007

Before Judges Parker, R. B. Coleman and Lyons.

Petitioner Columbus Liquors, LLC appeals from a September 27, 2006 order of the Director of the Division of Alcoholic Beverage Control (ABC) denying petitioner's application for a plenary retail consumption license, based upon petitioner's failure to comply with the statutorily mandated renewal scheme. For the reasons set forth below, we affirm.

On September 14, 2006, petitioner filed a verified petition with the Director requesting that the ABC issue petitioner a new license to replace its expired license, or alternatively, that the ABC reinstate the license. In denying petitioner's application, the Director accepted the following facts as presented by petitioner:

Gerald Taufield, a member of Columbus Liquors, LLC, states the following. The subject license has been inactive since June 1, 2002. In November 2003, Columbus Liquors, LLC, applied to the municipal issuing authority*fn1 for a person-to-person transfer of the subject license. On April 20, 2004, the municipal issuing authority approved the transfer of the license from Billy's Sports Bar, Inc., to Columbus Liquors, LLC. Mr. Taufield heard nothing further about the license until March 2006, when he requested that his former attorney inquire as to its status. His former attorney inquired and was told that the ABC Board Secretary at the time of the transfer never provided the resolution transferring the license to the State ABC. Therefore, the State ABC's records still indicate that Billy's Sports Bar, Inc., is the owner of the license. Billy's Sports Bar, Inc., never renewed the license and the license expired. Renewal applications were never provided to Columbus Liquors, LLC.

Petitioner also submitted the Certification of Maynard Woodson, Assistant Director of Jersey City's Division of Commerce. He states the following. In April 2004, the ABC Board Secretary was an employee of the Division. Columbus Liquors, LLC, applied for a transfer of the subject license, which was approved by the ABC Board on April 20, 2004. The then-ABC Board Secretary was newly appointed, inexperienced and only remained in that position for a few months. She did not prepare and send to the State ABC a resolution memorializing the transfer from Billy's Sports Bar, Inc., to Columbus Liquors, LLC. She also did not update the computer system to reflect the transfer. Thus, Columbus Liquors, LLC, did not receive renewal applications for the 2004-2005, 2005-2006 and 2006-2007 license terms. It was not until a recent inquiry by an attorney for Columbus Liquors, LLC, that it was discovered that the ABC Board Secretary never sent a resolution memorializing the transfer to the State ABC and that the license had been retired by the State ABC. On March 22, 2006, the Division advised Columbus Liquors, LLC, that the State ABC retired the license. [(footnote omitted).]

The Director determined that the ABC had no jurisdiction to grant a "new" license because petitioner did not file a timely renewal, as required by N.J.S.A. 33:1-12.13, N.J.S.A. 33:1-12.18 and N.J.A.C. 13:2-42.1. The Director also concluded that petitioner did not establish the elements of substantial compliance that would have excused petitioner's lack of strict compliance with the statute.

Upon denial, petitioner filed this appeal and presents the following arguments:

POINT I: THE DIRECTOR OF THE STATE DIVISION OF ABC HAS JURISDICTION TO ISSUE A NEW LICENSE UNDER THE CIRCUMSTANCES.

POINT II: APPELLANT SUBSTANTIALLY COMPLIED WITH THE LICENSING LAWS.

POINT III: THE DIRECTOR OF THE STATE DIVISION OF ABC HAS THE AUTHORITY TO ISSUE A NEW LICENSE NUNC PRO TUNC.

POINT IV: THE APPLICATION OF THE NEW JERSEY LIQUOR LICENSE LAWS BY THE JERSEY CITY ABC BOARD IN FAILING TO PROVIDE NOTICE OF THE FORFEITURE OF THE APPELLANT'S LICENSE CONSTITUTES A TAKING OF THE APPELLANT'S PROPERTY WITHOUT DUE PROCESS OF ...


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