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Corona De Espana Restaurant Corp. v. Governing Body of the City of Union City

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 17, 2008

CORONA DE ESPANA RESTAURANT CORPORATION T/A LOS RECUERDOS, APPELLANT,
v.
GOVERNING BODY OF THE CITY OF UNION CITY, RESPONDENT.

On appeal from a Final Decision of the New Jersey Department of Law and Public Safety, Division of Alcoholic Beverage Control, Appeal Nos. 6953, 6987, 7047.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 1, 2008

Before Judges Cuff and Fuentes.

Corona de Espana Restaurant Corporation (Corona) is licensed to sell and serve alcoholic beverages. Between April 13, 2003 and January 1, 2004, Corona was charged three times with serving alcoholic beverages and operating the premises contrary to municipal ordinances and regulations promulgated by the Division of Alcoholic Beverage Control (ABC) of the State of New Jersey.

Following hearings before defendant Governing Body of the City of Union City, Corona was found to have violated the cited regulations and ordinances and its license to serve alcoholic beverages was suspended for fifty-five days. The ABC Director stayed the penalties pending appeal.

An administrative law judge (ALJ) found that on April 13, 2003, bar cards containing the names and addresses of Corona employees were not immediately produced. The ALJ also found that on October 31, 2003, at 3 a.m., the windows facing the street were not uncovered to allow an unobstructed view. The ALJ also found that on January 1, 2004, between 2:30 and 2:45 a.m., the windows of the restaurant did not provide an unobstructed view from the street to the interior. The ALJ held that this conduct violated a municipal ordinance governing the service and sale of alcoholic beverages and concluded that the liquor license issued to Corona should be suspended for five days for each violation.

Corona filed untimely exceptions unaccompanied by a transcript of the hearing. In his April 4, 2007 Final Conclusion and Order, the ABC Director reviewed the initial decision of the ALJ and the exceptions submitted by Corona. Finding that the factual findings made by the ALJ were supported by the record, the Director accepted those findings and conducted a plenary review of the penalties. The Director held that N.J.A.C. 13:2-19.11 requires imposition of a ten-day suspension for violation of any ordinance, resolution or regulation of an issuing authority, such as Union City. Therefore, the penalty for the October 31, 2003 and January 1, 2004 unobstructed view violations was revised to ten-day suspensions for each municipal violation for a total suspension of twenty-five days.

On appeal, Corona argues that it allowed unobstructed views as required. It also contends that the unobstructed view ordinance does not apply to its establishment.

Having canvassed the record compiled in the agency proceedings, we are satisfied that the decision of the ABC Director is supported by sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D). We note that Corona did not challenge in the administrative proceedings the applicability of the ordinance requiring unobstructed views of the interior of its establishment. Moreover, it was required to present its argument for conversion of a suspension to a monetary penalty in the first instance to the Director. N.J.S.A. 33:1-31; N.J.A.C. 13:2-19.12(c). It did not do so, and we will not entertain any argument not presented to the Director. See Sell v. N.J. Transit Corp., 298 N.J. Super. 640, 649 (App. Div. 1997) (declining to consider issue fully on appeal because it was not raised before the agency action). See also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting it is well-settled that appellate courts will decline to consider issues not presented to the trial court).

Affirmed.

20080717

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