On appeal from the Division of Alcoholic Beverage Control, Department of Law and Public Safety, Docket No. 7301.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
Plaintiff Martell's Waters Edge, LLC (Martell's) appeals a June 17, 2009 final agency decision of the Director of the Division of Alcoholic Beverage Control (ABC or Director) in which the Director upheld the conclusion of an Administrative Law Judge (ALJ) that the Township of Berkeley (Township) did not abuse its police powers when it rejected Martell's request to amend the conditions that governed its liquor license. The requested amendment would have extended the hours in which music can be played on the restaurant's outdoor deck on weekday nights by an additional two hours, so that music could be offered outside until midnight, instead of ending at 10:00 p.m. We agree with the Director's conclusion that Martell's construction of a sound wall that reduces the decibel level of the music has no bearing on the Township's right to ban all music after 10:00 p.m. We affirm.
Two years ago, we considered the identical issue Martell's presents in this appeal. In particular, we considered whether the Director reached a decision that was arbitrary and capricious when he approved the Township's decision to deny Martell's request for outdoor music until midnight on weekday nights. Martell's Waters Edge, L.L.C. v. Governing Board of Berkeley, No. A-2743-06 (App. Div. April 3, 2008) (slip op. at 2). We concluded that the judgments of the Township and the ABC Director were neither arbitrary nor capricious and we affirmed the denial of Martell's request to extend the hours of outdoor music on weekday nights. Id. at 11. With the exception of the now-completed sound wall, the facts have not changed since that time.
The restaurant involved in this appeal, known as "Waters Edge," is located in the Bayville section of the Township. Bordered by a commercial boatyard to the south, by undeveloped property to the west, and by Barnegat Bay to the east, the restaurant is adjacent to a residential neighborhood known as "Good Luck Point" at the north and northeast side of the establishment. The closest home is 400 feet from the restaurant's outside deck.
In 1994, the Township issued a plenary retail consumption license to Waters Edge, but imposed a special condition that permitted music to be played on the rear deck of the restaurant only until 10:00 p.m. on weekdays and until midnight on Fridays, Saturdays and holidays. Those same restrictions were imposed in each successive license renewal term. The rear deck, which extends to Barnegat Bay in an easterly direction, includes a bar and bandstand, which at the time of our 2008 decision was screened on several sides by noise barriers. Id. at 2. The deck is typically used, weather permitting, on weekends in the spring through Memorial Day, daily from Memorial Day through Labor Day, and for two or three weekends after Labor Day.
In June 2005, Martell's requested that the Township amend the terms of its license so that it could play music on the deck every night until midnight, rather than only be able to offer music until midnight on weekends and holidays. At a public hearing before the Township Council on July 26, 2005, Martell's outlined the measures it had taken to muffle the sound of the music and also presented a noise expert, who testified that he had measured the sounds emanating from the deck when music was being played. The expert confirmed that the noise levels he recorded were within the decibel levels allowed under State and municipal noise regulations.
Five objectors testified at the June 2005 hearing in opposition to Martell's request, asserting that allowing music to be played until midnight on weeknights would interfere with the sleep of those residents who were required to arise early in the morning for work. Although some of the objectors noted their appreciation of the steps the restaurant's new management had undertaken to contain noise, they urged that no extension of the music hours be approved. The Township Council approved the license renewal, but unanimously voted to deny Martell's application for authorization to play music on the outdoor deck until midnight on weekdays.
Martell's sought review of that local decision by requesting a hearing before an Administrative Law Judge (ALJ). At the hearing before ALJ Dennis Blake, Martell's presented the testimony of its owner, who explained that when he purchased the Waters Edge in 2003, he was aware of numerous complaints from neighbors about excessive noise from the bands on the deck. By installing sound barriers, he succeeded in reducing the noise, because in his two years of operation, between 2003 and 2005, there was only one noise complaint registered with the Berkeley Police Department.
After considering the testimony of Martell's owner and its noise expert, as well as a transcript of the 2005 proceedings before the Township Council where neighbors had registered their objections to an increase in the hours of outdoor music on weekday nights, ALJ Blake issued a written decision on June 19, 2006 upholding the Township's refusal to modify the special condition. Among other findings, the ALJ observed that the residents who opposed Martell's request had presented a "desire for peace and quiet to enable them to sleep during the work week." He concluded that this rationale "is clearly associated with public health and the general welfare and is a sufficient and appropriate justification for [the Township's] decision to deny [Martell's] request for expanded [music] hours."
After Martell's filed exceptions to the ALJ's decision, the ABC Director issued a ten-page final decision on December 21, 2006, ratifying ALJ Blake's determination. The Director agreed with the ALJ's conclusion that the Township acted reasonably when it denied the expanded music hours on weeknights, in light of the numerous objections raised by residents. The Director found that "the issue of music emanating late at night from the licensed premises does impact on the quality of life of the residents surrounding the licensed business." The Director also found it "noteworthy that... for the last twelve years,... the neighbors have developed an expectation of peace and quiet after 10:00 p.m. during ...