On appeal from the Department of Law and Public Safety, Division of Alcoholic Beverage Control.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Espinosa.
Appellant Joseph Maro, an alcohol solicitor, appeals from a Final Conclusion and Order Denying Reconsideration and Granting Summary Decision, dated January 7, 2009, issued by the Director, Division of Alcoholic Beverage Control (ABC or Director). The Director analyzed the amendments to the ABC's regulations, N.J.A.C. 13:2-16.ll, effective February 16, 1999, that prohibited a holder of a solicitor's permit to solicit any order from a retail licensee in which an immediate family member has an interest or participates in its operation. The Director concluded that the "grandfather" clause contained in subpart (e) was not applicable to appellant who had thereafter changed his employer, cancelled his solicitor's permit and obtained a new permit. The Director found such action terminated any existing business relationship with two alcoholic beverage retailers in which appellant's brothers held ownership interests and created a new relationship, which was prohibited by the regulations. We affirm.
We need only summarize the factual and procedural history of this case as it is set forth in detail in the agency's final determination. In l982, appellant began his employment with Gallo Wine Sales and held Solicitor's Permit No. 3869. His biggest accounts were Canal's stores in southern New Jersey. On October 28, 1997, Folmar Corporation (50% of which was owned by appellant's brothers, Michael and Robert Maro) acquired Plenary Retail Distribution License No. 0316-44-002-03 for Canal's in Hainesport by a person-to-person transfer. Appellant continued to solicit this location, just as he had since l984.
On September l4, 2004, Pound Cake, L.L.C. (66 2/3% of which was owned by Michael and Robert Maro) acquired Plenary Retail Distribution License No. 0811-44-018-005 for Canal's in Williamstown by a person-to-person transfer. Appellant continued to solicit this location, just as he had since l982.
In the interim between Folmar becoming a licensee and Pound Cake becoming a licensee, the ABC promulgated amendments to N.J.A.C. l3:2-16.11, effective February l6, 1999, as follows:
(c) As of February l6, 1999, no holder of a solicitor's permit shall offer for sale or solicit any order for the purchase or sale of any alcoholic beverage to any retail licensee in which an immediate family member of the solicitor has any direct or indirect financial interest or participates in the operation of the retail licensee.
(d) The term immediate family member as used in this chapter means husband, wife, son, daughter, grandson, granddaughter, brother, sister, father, mother, brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, or daughter-in-law.
(e) The provisions of (c) and (d) above do not apply to any solicitor who has been issued a solicitor's permit on or before February l6, 1999. [N.J.A.C. l3:2-16.11.]
In 2005, appellant was offered a solicitation job with R&R Marketing, including a higher salary than he could make at Gallo. Appellant claimed he contacted the ABC in December 2005 and "he was assured by [Hattie] Harris that his 'license was grandfathered' and the job change would not affect his right to sell to those stores [in which his brothers held an interest]." Harris certified that she was a Customer Service Representative who did not answer legal questions, she did not recall meeting with appellant to discuss the grandfather provision of his solicitor's permit, and such a question was not within her job duties.
Appellant notified the ABC that his employment with Gallo ended in January 2006. Gallo also informed the agency that appellant was no longer employed by Gallo under Permit No. 3869. Appellant applied for a solicitor's permit for his new employment, disclosing that his brothers held financial interests in Canal's Hainesport (Folmar) and Canal's Williamstown (Pound Cake). The ABC issued appellant Solicitor's Permit No. l4369 on January 11, 2006 with no conditions. Through R&R, appellant continued soliciting many of the same Canal's locations, including the two in which his brothers held financial interests. On his 2006-2007 renewal application, appellant again indicated that certain family members had financial interests in retail licenses and he serviced those accounts, but he did not include a list of those relatives and accounts, as required. On his 2007-2008 renewal, appellant again answered this question affirmatively and included a separate page indicating his brother, Michael Maro, held an interest in Canal's Hainesport.
During an investigation of R&R Marketing in 2007, the ABC's Enforcement Bureau examined the employment of several of R&R's solicitors. On May 27, 2008, the Director issued his Final Conclusion and Consent Order Accepting Monetary Compromise in Lieu of Disciplinary Proceedings, which among other terms, required R&R to reassign appellant's Pound Cake account and deferred its decision on whether appellant could continue to solicit the Folmar account, pending the institution of a potential separate disciplinary proceeding. Appellant requested reconsideration, arguing he qualified for the grandfather provision of the amendments for both accounts. In consideration of appellant's waiver of the requirement for the issuance of disciplinary charges, the Enforcement Bureau stayed the requirement that R&R Marketing reassign the two accounts pending ...