On appeal from the New Jersey Department of Law and Public Safety, Division of Alcoholic Beverage Control, Docket No. 7529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 11, 2012
Before Judges Axelrad and Sapp-Peterson.
Petitioner, A & J Companies International, Inc, t/a Joyce's Tropical Garden, appeals from the December 6, 2010 final conclusion and order of the Director, Division of Alcoholic Beverage Control (Director) affirming the decision of the Administrative Law Judge (ALJ) sustaining eight charges occurring on two dates and revoking petitioner's plenary retail consumption license. We affirm in part, reverse in part, and remand.
This case has its genesis in a Resolution and Order adopted on October 27, 2009, by the Irvington Council acting as the Alcoholic Beverage Control Board of the Township of Irvington (respondent). Following a hearing, respondent found petitioner, the holder of plenary retail consumption license no. 0709-033-020-007, guilty of eight charges for conduct occurring at 1371 Springfield Avenue in Irvington, and revoked its license effective immediately. The charges were that: (1) on April 3, 2009, petitioner caused or allowed narcotics and other illegal activity on the licensed premises, N.J.A.C. 13:2-23.5(b) and (c) (charges 2 and l); caused the licensed premises to be conducted in such a manner as to become a nuisance (police intervention -public safety violated), N.J.A.C. 13:2-23.6(a)(3) (charge 3);*fn1 and caused or allowed lewd activity on the licensed premises and with audience participation, N.J.A.C. 13:2-23.6(a)(1) (charges 4 and 5); and (2) on May 6, 2009, petitioner failed to conspicuously display its license, N.J.A.C. 13:2-23.13(a)(1) (charge 6); allowed the sale of alcohol to an intoxicated person, N.J.A.C. 13:2-23.1(b) (charge 7); and caused the licensed premises to be conducted in such a manner as to become a nuisance (police intervention - public safety violated), N.J.A.C. 13:2-23.6(a)(3) (charge 8). Three charges relating to May 22, 2009 were withdrawn by the prosecutor.
Petitioner appealed to the Director. A consent order was entered on December 3, 2009 by the Acting Director staying the revocation of petitioner's license with conditions. The appeal was referred to an ALJ who conducted a hearing on June 2, 2010. On September 10, 2010, the ALJ issued an initial decision affirming the action of respondent on all eight charges and the revocation penalty.
Petitioner filed exceptions with the Director who, by final conclusion and order of December 6, 2010, affirmed the decision of the ALJ without further comment, and revoked petitioner's license. This appeal ensued. On February 17, 2011, petitioner filed a motion with the Appellate Division seeking summary disposition and a stay of the license revocation, which was opposed by respondent. By order of April 1, 2011, we denied petitioner's motion.
The following testimony and evidence was presented at the hearing before the ALJ. Irvington Police Officer Shaun Green testified for respondent that at about 11:30 p.m. or midnight on April 3, 2009, he and several officers were on routine patrol in their marked vehicles. When they drove past Joyce's Tropical Garden (Tropical Garden), he observed a male, later identified as Bernard Jackson, standing in the doorway with four or five individuals around him, and he appeared to be placing a handgun in the waistband of his pants. Jackson saw the officers and fled inside the Tropical Garden. Approximately ten to twelve officers responded to the scene. Officer Green pursued Jackson through the crowded bar towards the rear and into the "strip club portion" of the establishment, at which point Jackson discarded the weapon and was arrested. The gun, a 357 magnum, was loaded with one hollow point bullet. The officer later ascertained that Jackson had two outstanding warrants and did not have a permit to carry the gun.
Officer Green also testified he saw a patron toss a bag of marijuana to the floor and he observed "a marijuana bag on the bar as well as a discarded marijuana cigarette on the floor." He further observed an abandoned jacket on the chair at the bar with two bottles of alcohol in its pockets.
Irvington Detective Jerry Ramos testified that he responded as back-up to a police radio transmission indicating the police apprehension of a suspect in possession of a handgun inside the Tropical Garden. He reported that eleven officers and six detectives were at the premises that night. After observing the suspect was in custody and the premises appeared to be safe, he commenced his investigation regarding the liquor license. While inspecting the premises, the detective observed several used condoms behind a wooden structure about waist-high on the patron side of the bar. In close proximity to the condoms, he observed stains on the wall that he "believed to be semen" but which were never confirmed. He also observed "a couple of bags of marijuana and a marijuana cigarette" and "pint size bottles [of liquor] on the patron side of the bar on the floor directly behind the bar . . . where the patron would have their feet . . . if they had their stool pulled up to the bar."
As a result of the investigation, Detective Ramos testified he filed a report noting, in part, that "[a] suspect was arrested in possession of a handgun inside of the establishment and in addition two separate suspects were arrested for possession of CDS" and recommended the following five charges regarding the licensed premises: (1) illegal activity; (2) narcotic activity; (3) nuisance; (4) lewd activity; and (5) lewd activity with audience participation. He based the nuisance charge on the numerous charges on this particular date and, based on his review of the computerized system of the police call logs (CAD report), explaining, "the fact . . . that we had responded to this particular establishment on numerous occasions in the past . . . two dozen or more [times]." That evening he ...