On appeal from the Department of Law and Public Safety, Division of Alcoholic Beverage Control, Appeal No. 7159.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sapp-Peterson.
Appellant, Big Business Entertainment, L.L.C., trading as the Dynasty Club (the club or premises), is the licensee of a private social club in Passaic that appeals from the December 13, 2007 order of the Director, Division of Alcoholic Beverage Control (Division), affirming the action of the Municipal Board of Alcoholic Beverage Control of the City of Passaic (Passaic ABC) revoking its plenary retail consumption license based upon violations of the Alcoholic Beverages Control Act (Act), N.J.S.A. 33:1-1 to -96, and the Act's implementing regulations, N.J.A.C. 13:2-1.1 to -8.
Passaic ABC filed forty-one charges against the club. Thirty-seven of the charges involved the alleged sales, service, delivery or consumption to or by an underage person. N.J.A.C. 13:2-23.1. The remaining charges alleged that narcotics activities occurred on the premises, N.J.S.A. 13:2-23.6(a); the licensee had an incomplete employee list, N.J.S.A. 13:2-23.13(a); and the licensee allowed the premises to become a nuisance and also suffered an act of violence on the premises, N.J.A.C. 13:2-23.6(a).
An April 5, 2006 resolution by Passaic ABC revoked the licensee's plenary retail consumption license. Appellant filed an appeal of the revocation to the Division and the matter was transferred to the Office of Administrative Law as a contested proceeding and assigned to an Administrative Law Judge (ALJ) who conducted a de novo hearing over two days in January 2007.
The evidence presented at the hearing focused upon two events held at the club in February 2006. The first event was held on February 6. The club's proprietor, Pedro Benitez,*fn1 allowed his sister to host a Mexican-themed Valentine's Day party that she advertised through a flyer that was written in Spanish. As translated, the flyer stated: "No need for you to have identification, if none don't worry. Family admission to include the smallest baby to grandfathers."
Testimony at the hearing disclosed that identification checks were performed, and those persons twenty-one years old and older were given bracelets so that they could be served alcoholic beverages, while those under twenty-one did not receive bracelets and were therefore not served any alcohol. Police arrived at the party and, although they did not personally observe any minors consuming alcoholic beverages, they interviewed patrons, some of whom were minors who admitted consuming beer. Also while on the premises, police learned that Benitez did not have an employee list that identified all of the members of the club's security detail. Further, suspected narcotics paraphernalia were found on the premises, although no narcotics were found.
Witnesses who testified at the hearing on behalf of the club included minors who denied consuming alcohol but who recalled observing persons with wristbands consuming alcohol. The police testified that there were minors present who stated they were engaged in underage alcohol consumption. These minors, who police claimed admitted consuming alcohol, were not called as witnesses; nor were they identified by name or otherwise in the police report prepared in connection with the investigation of the February 11 incident.
The second event from which charges emerged against the club took place on February 25, when the club hosted a private party for members of the "Bloods" street gang to celebrate the life and death of one of its members. Police were initially dispatched to the club during the late evening of February 24 to inspect for ABC violations and crowd capacity violations. No violations were observed at that time, but a Passaic police officer, Edwin Ramirez (Ramirez), pulled Benitez aside to inquire whether Benitez was aware that the club was hosting a party for a deceased member of the "Bloods" street gang. Ramirez also alerted Benitez that police had received information "that there was going to be a retaliation from Paterson and [he] suggested to [Benitez] at that point that [Benitez] should close down." Benitez denied knowing that the party was being held by members of the Bloods gang. The party was not shut down. Hours later, between 11:00 p.m. on February 24 and 3:00 a.m. on February 25, police responded to a report of a shooting inside the premises. An individual, not a member of the Bloods gang, was able to gain access to the club. Five persons were wounded as a result of the shooting.
Based upon the testimony and documentary evidence admitted, the ALJ concluded:
In this case, there is no corroboration of the ultimate fact question whether licensee Pedro Benitez suffered minors to consume alcohol on his premises. The rule properly protects the licensee who did not have the opportunity to cross[-]examine witnesses against him. Moreover, respondent's witnesses qui[te] candidly admitted that they saw no minors actually consuming alcohol. The most that could be said was that alcohol was present on tables at which or next to which minors were sitting or standing. Therefore, the April 5, 2006 ABC Board resolution finding that appellant directly or indirectly allowed minors to ". . . purchase, be served and consume alcoholic beverages. . . ." is manifestly mistaken, improperly grounded in the facts and, therefore, not sustainable.
Appellant did not maintain an adequate employee list which should have included security personnel regardless of their employment by an independent contractor. There was no dispute on this point. Therefore, the Board ...