March 25, 2011
DEEP DEV., LLC, T/A RED CIRCLE LIQUOR, PETITIONER-APPELLANT,
MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF CAMDEN, RESPONDENT-RESPONDENT.
On appeal from the Department of Law and Public Safety, Division of Alcoholic Beverage Control, Docket No. 7499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 14, 2011 -
Before Judges Lisa and Reisner.
Appellant, Deep Dev L.L.C., appeals from the June 30, 2010 final order of the Division of Alcoholic Beverage Control (ABC), affirming the April 5, 2010 initial decision of the Administrative Law Judge (ALJ), which had affirmed the order of the Municipal Board of Alcoholic Beverage Control of the City of Camden (Board) suspending appellant's plenary retail distribution license for fifteen days. The suspension has been stayed pending this appeal. Appellant presents the following arguments on appeal:
PETITIONER WAS DENIED PROCEDURAL DUE PROCESS.
A. Petitioner was denied procedural due process where the attorney for the Board simultaneously prosecuted the charge and continued to provide legal advice to the Board.
B. Petitioner was denied due process by the unexplained delay in bringing the charge against petitioner.
C. Petitioner was denied due process where the specification of the charge did not comport with either the standard set forth in the administrative code provision or the culpable conduct as found by the administrative law judge.
THERE WAS NO COMPETENT EVIDENCE TO SUPPORT THE CHARGE THAT PETITIONER SERVED A 'VISIBLY' INTOXICATED PATRON.
THE DIRECTOR ERRED IN FAILING TO REOPEN THE HEARING FOR THE LIMITED PURPOSE OF ACCEPTING THE TRANSCRIPT FROM THE JUNE 17, 2009 HEARING BEFORE THE BOARD.
We reject these arguments and affirm.
Appellant operates a package goods store known as Red Circle Liquors in Camden. On the afternoon of December 11, 2008, Officer Pedro Perez, of the Camden Police Department, was on foot patrol in the immediate vicinity of appellant's store. Perez observed Ricardo Acosta, an individual with whom he was familiar, attempting to cross Federal Street. Acosta was carrying a twenty-four pack of beer, was staggering, was not making appropriate observations for his own safety, and was nearly struck by a moving vehicle. Perez assisted Acosta across the street.
Perez observed that Acosta's face was "flush" and he appeared "not to be aware of where he was." Acosta had difficulty maintaining his balance, was unable to answer questions clearly, had the odor of alcohol on his breath, and his eyes were bloodshot and rotating. In response to Perez's inquiry, Acosta told him he had purchased the beer from appellant's store.
Perez walked Acosta back to the store and confronted the sales clerk, Girishbhai Patel, who confirmed that he had sold the beer to Acosta. In response to Perez's inquiry whether Girishbhai Patel had obtained identification from Acosta, he said he had not because Acosta was a regular costumer, and there was therefore no question that he was of legal age.
Perez said another individual, who he believed to be the owner or manager, joined in the conversation. The two employees denied that Acosta was intoxicated. Perez said he asked the employees to view videotape captured by their security cameras, but they said the cameras were not in working order. Perez issued a summons to Acosta and insured that he would leave safely with another individual who was waiting for him. Perez did not issue any written citation to appellant's employees. However, Girishbhai Patel admitted that Perez said "I'm going to notify ABC Board," but he said he believed Perez was referring to the fact that he had not asked Acosta for identification.
Girishbhai Patel testified that he did indeed sell the beer to Acosta. However, he said Acosta exhibited no signs of intoxication, and after he made the purchase he left the store, walking normally, after which he returned about ten minutes later with Perez. Girishbhai Patel denied that the other employee who was working that day ever entered into the conversation with him and Perez, and he denied that Perez asked him about the security footage.
Ghanshyam Patel, an owner of the business and brother-inlaw of Girishbhai Patel, also testified. He was not present when this incident occurred. He said the store is equipped with multiple security surveillance cameras and, as of December 11, 2008, footage was recorded and stored on a disc for a period of one month, after which it was erased in accordance with his normal practice at that time.
On February 17, 2009, the Board sent a letter to appellant directing its representative to appear at a meeting to discuss this incident. Ghanshyam Patel said this was the first notice he had of any problem regarding an incident that occurred on December 11, 2008. That meeting was ultimately canceled, and on May 11, 2009, the Board served appellant with a notice of disciplinary hearing.
The notice charged a violation of N.J.A.C. 13:2-23.1(b), with the following specification: "On December 11, 2009, the licensee sold a 24 pack of Budweiser beer to Ricardo Acosta a visibly intoxicated person. A copy of the police report of the incident is attached." After a hearing on June 17, 2009, the Board adopted a resolution finding appellant guilty of the charge and imposing the fifteen-day suspension.
Appellant sought review before the ABC, which transmitted the matter to the Office of Administrative Law as a contested case. The ALJ conducted a hearing on January 29, 2010. He heard the testimony of Perez, Girishbhai Patel, and Ghanshyam Patel. Various documents and photographs were placed in evidence.
After the parties submitted their written arguments, the ALJ issued his initial decision. He found Perez credible and found Girishbhai Patel and Ghanshyam Patel lacking in credibility. He found that Girishbhai Patel, an employee and representative of appellant, sold alcohol to Acosta on December 11, 2008, "while Acosta was intoxicated, or showed apparent signs of intoxication."
Appellant filed an administrative appeal with the ABC. Appellant filed exceptions, to which the Board responded. While the matter was pending before the ABC, appellant's counsel wrote two letters to the ABC, suggesting that the ABC might deem it appropriate to consider the testimony presented at the June 17, 2009 hearing before the Board. Counsel suggested that some of Perez's testimony before the ALJ was inconsistent with testimony he presented at that proceeding. However, in neither letter did counsel specifically ask that the record be reopened to allow the filing of a transcript of the proceeding before the Board. Appellant did not file a motion with the ABC to supplement the administrative record with the transcript. Indeed, appellant had not yet obtained a transcript and would not do so until several months after the ABC rendered its final decision. In each letter, appellant's counsel suggested that if the Director of the ABC deemed it appropriate and requested it, he would furnish the transcript to supplement the record. The Director did not reply to counsel's letters and proceeded to issue the ABC's final order.
After appellant filed this appeal, we granted a stay of the suspension pending the outcome of the appeal. However, we denied appellant's motion to supplement the appellate record with a transcript of the June 17, 2009 hearing before the Board. Appellant nevertheless has filed that transcript with us and presented arguments pertaining to those proceedings.
In Point I.A, appellant makes due process arguments with respect to the manner in which the proceedings before the Board were conducted. As we have stated, the transcript of that proceeding is not part of the record on appeal and is not properly before us. Appellant did not raise these due process arguments before the ALJ or the ABC. Therefore, the arguments are not properly raised on appeal, and we decline to address them. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In Point I.B, appellant argues that its due process rights were violated because of the delay in bringing charges against it. Appellant argues that had it known there would be such charges, it would have preserved the store video tape, which would have shown that Acosta did not exhibit any signs of intoxication when he purchased the beer. We reject this argument. Appellant knew on December 11, 2008 that the incident would be reported to the ABC. There is no evidence, for example, of any misrepresentation by the police or the Board advising appellant that no charges would be brought. Thus, appellant's destruction of the tape (if one existed) was at its peril and not in reliance upon any conduct by enforcement authorities. Those authorities acted promptly by notifying appellant within about two months that charges would be brought. There was no due process violation.
Appellant's contention in Point I.C is that there was an impermissible deviation between the specification of charges against it and the Code provision with which it was charged. More particularly, the specification charged appellant with serving a "visibly" intoxicated person, whereas the Code makes it a violation to serve an "apparently" intoxicated person. Like the ABC, we fail to see any material distinction.
We reject appellant's argument in Point II, because there was more than ample credible evidence in the record to support the final agency decision that appellant served a visibly intoxicated person. R. 2:11-3(e)(1)(D).
We also reject appellant's argument in Point III that the Director erred in failing to reopen the record to allow it to be supplemented with a transcript of the June 17, 2009 hearing before the Board. First, as we have explained, appellant did not actually file a motion to supplement the record in the administrative proceedings, nor did appellant in correspondence expressly request that it be allowed to supplement the record. Instead, it explained the reason why the Director might wish to review that transcript on the issue of Perez's credibility, and offered to provide it if the Director requested it. Further, the only reason given for not obtaining a transcript of the Board proceeding prior to the hearing before the ALJ was that appellant's counsel assumed that Perez's testimony would be the same before the ALJ. The Director did not mistakenly exercise his discretion in declining appellant's invitation to request this transcript by way of supplement to the record.
Our role in reviewing an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to the decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distrib. of Liquid Assets, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Brady, supra, 152 N.J. at 210-11; In re Petition of S.D., 399 N.J. Super. 107, 121 (App. Div. 2008) (citing In re Musick, 143 N.J. 206, 216 (1996)); In re Joint Petition of Boardwalk Regency Corp. v. N.J. Casino Control Comm'n, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's "'findings . . . could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
"[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency, such as [the ABC], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).
Applying this highly deferential standard, we are satisfied from our review of the record that the factual findings made by the ALJ and adopted by the ABC are well supported by substantial credible evidence in the record. Accordingly, the decision is not arbitrary, capricious or unreasonable. We affirm substantially for the reasons expressed by the ALJ and adopted by the ABC in its final decision.
The June 30, 2010 order of the ABC is affirmed, and the stay of the fifteen-day suspension is vacated.
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