July 29, 2011
RIVER ROAD BEVERAGE COMPANY, L.L.C., APPELLANT,
MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF CAMDEN, RESPONDENT.
On appeal from the Department of Law and Public Safety, Division of Alcoholic Beverage Control, Appeal Nos. 7387 and 7465.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 10, 2011
Before Judges Payne and Koblitz.
On June 23, 2008, the Municipal Alcohol Beverage Control Commission of the City of Camden (Camden ABC) ordered a thirty-day suspension of the liquor license held by River Road Beverage Company, L.L.C., the owner and operator of Rumba Rengue, a Camden club, following the stabbing in the thigh and abdomen of a fifteen-year-old girl by a twenty-year-old girl during the course of the fifteen-year-old's sweet sixteen party at the club. At that time, a special condition was attached to River Road's license prohibiting it from allowing under-age patrons on the premises. On March 9, 2009, the Camden ABC revoked the club's license as the result of an alcohol-fueled homicide involving two minors that originated from a dispute occurring between the two at the club.
The orders were appealed, and the matters were transmitted to the Office of Administrative Law (OAL) as contested cases. Following their consolidation, three days of hearings were held before Administrative Law Judge (ALJ) Susan M. Scarola who, in an opinion issued on November 19, 2009, affirmed the orders of the Camden ABC, determining that River Road had violated N.J.A.C. 13:2-23.6(b), which provides:
Every licensee shall operate its business in an orderly and lawful fashion, so as not to constitute a nuisance. A licensee's responsibility under this subsection includes the conduct of the licensee, its employees and patrons, if such conduct is contrary to the public health, safety and welfare.
Although River Road also appealed the special condition, the ALJ declined to address that appeal, finding that it had not been properly perfected.
Upon further appeal, the decision of the ALJ was affirmed by a final decision of the Director of the Division of Alcoholic Beverage Control issued on May 18, 2010. As stated by the Director:
Notwithstanding its Exceptions to the Judge's Decision, the licensee has failed to address the Judge's finding that on weekends a majority of Camden's police force must be focused on the licensed premises because of the incidents that occur at this location. The licensee disregarded the testimony of the underage patron, whom the Judge found credible, which established a history of permitting underage patrons on the premises and allowing them to consume alcohol. The licensee failed to address the violations of special conditions imposed on the license specifically prohibiting it from allowing underage patrons on the premises (unless it was for a specific business purpose). The licensee failed to address why most of the witnesses to the homicide were patrons between the ages of 14 and 20 years of age who had not been checked at the door for identification, and admitted consuming alcoholic beverages inside the premises.
It, therefore, appears that whatever security measures the licensee had in place were not sufficient to keep underage patrons from entering the business, or mitigate the dangers presented by operation of the licensed business. The licensee argues that Camden did not do enough to stop the incidents from occurring on the licensed premises. I do not agree. Subscribing to this line of reasoning would permit the licensee to abdicate its legal responsibility to safely and responsibly operate a licensed premises, and improperly place this burden squarely on the back of the issuing authority. I am firmly convinced that the City of Camden did not create the perilous environment at the club, but rather, the perilous environment was created by the patrons attracted and admitted into the club by the licensee.
With the exception of one private party, the club has been closed since February 22, 2009, the date of the homicide, and its liquor license remains indefinitely suspended. River Road has appealed.
On appeal, River Road claims that the revocation determination was not supported by the evidence and that Jacqueline Gomez, the owner of River Road, was unfairly made the scapegoat for Camden's endemic lawlessness. However, in proceedings before the ALJ, considerable evidence was presented to support her decision by police officers, neighborhood mothers of under-age patrons, and by an eighteen-year-old club patron. Evidence established that the club was located in a "neutral" area, and thus served patrons from all of Camden's gangs. Although the club had initially attracted an adult clientele, as the result of the club's introduction of reggaeton music nights, it commenced to attract many under-age patrons who, despite club rules to the contrary and a city-wide eleven p.m. weekend curfew, often came to the club late at night with fellow minors, rather than the required adults. Alcohol was served to minors as young as fourteen or was made available to them by the practice of selling entire bottles of liquor for consumption at a table. Most of the twenty witnesses to the homicide interviewed by the police were minors between the ages of fourteen and twenty who had been drinking at the club prior to the shooting; the eighteen-year-old perpetrator had been drinking alcohol at the club before the murder took place. The police estimated that approximately thirty percent of the club's patrons were juveniles.
Additionally, on nights when the club was open, calls regarding the club occupied half of the area's police force and required the presence of twelve to eighteen police cars. Fights, spilling out into the street, were frequent; neighborhood residents complained of public urination, fighting, and obstruction of the sidewalk. A petition bearing 2,200 signatures urged that the club be closed because it served alcohol to the city's youth and brought violence to the community.
Witnesses on behalf of River Road testified to club policies against weapons and drugs, and it provided evidence that it hired bouncers to screen patrons and enforce those policies. Security cameras were in place inside and outside the club, and wanding was utilized to check for weapons. The police witnesses testified to no arrests at the club for drug or weapons crimes. Additionally, River Road provided evidence that it required identification, and it placed wrist bands on juvenile patrons so they would not be served alcohol. However, evidence disclosed that the steps taken by River Road were insufficient to eliminate frequent disturbances and substantial under-age drinking. On the night of the homicide, the club had been asked by the police to close early, because the atmosphere there appeared to be particularly tense. The club was closed when the shooting took place. However, earlier, security at the club had been lax. Multiple fights had occurred, and the victim had been observed by the club manager taking off his t-shirt to prepare for a fight over a female patron. He was escorted from the club and later shot in the neck. At the time of the stabbing and shooting, Camden did not prohibit the presence of minors in bars, but required that they be accompanied by an adult. Subsequently, it passed an ordinance barring the presence of juveniles in such locations.
Our review of the record in light of the legal standards properly and exhaustively set forth by ALJ Scarola in her written opinion satisfy us that the orders of the Camden ABC were reasonably supported by the evidence presented, and we affirm the ALJ's determination that River Road was operating a licensed premises in such a manner as to constitute a nuisance in violation of N.J.A.C. 13:2-23.6(b) substantially on the basis of ALJ Scarola's factual and legal analysis as supplemented in the opinion of the Director following receipt of exceptions to the ALJ's decision.
We add only the following: "A licensee is responsible to maintain control of its patrons and its licensed and surrounding premises." Antoine Servs., Inc. v. Mun. Bd. of ABC, City of Linden, 97 N.J.A.R.2d (ABC) 9, *18-19 (1996) (citing In re Nathan's Realty, Inc., 96 N.J.A.R.2d (ABC) 25 (1996)). This strict rule is justified because "[t]he liquor business is an exceptional one and courts have always dealt with it exceptionally." Borough of Fanwood v. Rocco, 33 N.J. 404, 411 (1960) (citing X-L Liquors v. Taylor, 17 N.J. 444, 449 (1955); Mazza v. Cavicchia, 15 N.J. 498, 505 (1954); Paul v. Gloucester Cnty., 50 N.J.L. 585, 595 (E. & A. 1888)). The State's police power to regulate the sale of intoxicating liquors "is practically limitless." Blanck v. Mayor & Borough Counsel of Magnolia, 38 N.J. 484, 490 (1962) (citing Borough of Fanwood, supra, 33 N.J. at 411; Meehan v. Bd. of Excise Comm'rs, 73 N.J.L. 382, 386 (Sup. Ct. 1906), aff'd, 75 N.J.L. 557 (E. & A. 1908)).
N.J.A.C. 13:2-23.6(b) prohibits the creation of nuisances such as that found to exist as the result of the River Road's operations at the club. "[N]uisance in its primary signification does not involve the element of negligence[.]" Milstrey v. City of Hackensack, 6 N.J. 400, 406 (1951). Thus, even if the efforts undertaken by River Road to abate dangerous activities in and around the premises by club patrons were deemed reasonable, although the evidence suggests otherwise, the sanction of license revocation could still be imposed upon a determination that a nuisance had been created.
In addition, we find that it was proper to take into consideration the petition submitted by local residents seeking closure of the club. Lyons Farms Tavern, Inc. v. Mun. Bd. of Alcoholic Beverage Control, 55 N.J. 292, 302-03 (1970) (citing Borough of Fanwood, supra, 33 N.J. at 412). "[W]hen the lawmakers delegated to local boards the duty 'to enforce primarily' the provisions of the [Alcoholic Beverage Control] act it invested them with a high responsibility, a wide discretion, and intended their principal guide to be the public interest." Ibid. (citing Lubliner v. Bd. of Alcoholic Beverage Control for City of Paterson, 33 N.J. 428, 446 (1960)). We thus find that River Road has failed to sustain its burden of demonstrating that the issuing authority's suspension and revocation of its license was erroneous. Antoine Servs., supra, 97 N.J.A.R.2d at *18.
River Road argues that the penalty of revocation was too severe, and that the Camden ABC should have imposed a limited suspension of its license or accepted its offer to transform the building into a dining establishment. However, the law is clear that "[t]he Director has the statutory authority to suspend or revoke liquor licenses for a first offense, R.S. 31:1-31, and his action in this regard works no deprivation of any inherent right to engage in the occupation thus curtailed." Butler Oak Tavern v. Div. of Alcoholic Beverage Control, 20 N.J. 373, 381 (1956) (citing Crowley v. Christensen, 137 U.S. 86, 11 S. Ct. 13, 34 L. Ed. 620 (1890); Meehan, supra, 73 N.J.L. 382). In this case, license revocation was among the penalties administratively recognized for a violation of N.J.A.C. 13:2-23.6(b) in the fashion that was found here. See N.J.A.C. 13:2-19.11. Additionally, N.J.A.C. 13:2-19.13 provides, when describing circumstances justifying an increase or decrease in penalties:
[I]f death or serious injury occurred as a result of the incident that gave rise to the violation, the Director may revoke the license, even if it is a first violation. The licensee has the burden of demonstrating mitigating circumstances.
That death resulted from an incident that commenced in the club and that the conduct of the under-age perpetrator was fueled by alcohol served in the club is a sufficiently aggravating factor to justify the penalty imposed. In the absence of significant mitigating factors, the penalty was appropriate. Compare Div. of Alcoholic Beverage Control v. Maynards, 192 N.J. 158, 182-88 (2007) (finding significant mitigating factors). We have not been provided with sufficient evidence with respect to River Road's offer of compromise to determine whether it complies with the requirements of N.J.A.C. 13:2-19.12 or to otherwise evaluate the rejection of that alleged offer.
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