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Polish People's Home, Inc v. Municipal Board of Alcoholic Beverage Control of the City of Passaic

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 9, 2013

POLISH PEOPLE'S HOME, INC., APPELLANT,
v.
MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF PASSAIC, RESPONDENT.

On appeal from the Division of Alcoholic Beverage Control, Docket No. 7621.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 11, 2012

Before Judges Reisner and Yannotti.

Polish People's Home, Inc. (PPH) appeals from a final determination of the Director of the Division of Alcoholic Beverage Control, in the Department of Law and Public Safety (Division), suspending PPH's plenary retail consumption license for sixty days. We affirm.

On January 28, 2011, the Alcoholic Beverage Control Board of the City of Passaic (Board) issued a notice to PPH charging that on November 25, 2010, PPH had allowed, permitted or suffered a nuisance on its premises, in violation of N.J.A.C. 13:2-23.6(b). The notice indicated that the Board was seeking a sixty-day suspension of PPH's plenary retail consumption license pursuant to N.J.A.C. 13:2-19.11, because this was PPH's second violation of the nuisance regulation.

The Board considered the matter on February 23, 2011. PPH stipulated to the facts as set forth in Officer Brian Dubac's (Officer Dubac) police report concerning the November 25, 2010 incident. In that report, Officer Dubac stated that he was on patrol in front of PPH, on Monroe Street, in Passaic. Officer Dubac was observing the patrons leave PPH and saw one of the patrons strike another person in the face with a closed fist.

Officer Dubac exited his vehicle. He detained two individuals who were involved in the incident, while two others walked away. Back-up officers responded and the four individuals were detained. One had a bruise in the area of his left eye. The individual who struck the injured person was arrested, charged with simple assault, disorderly conduct, obstruction by flight, and underage drinking.

The Board adopted a resolution dated February 23, 2011, finding that PPH violated N.J.A.C. 13:2-23.6(b) and ordered a sixty-day suspension of its plenary retail consumption license, commencing on March 8, 2011. On March 4, 2011, PPH appealed to the Director and requested a stay of the Board's decision pending appeal. On March 7, 2011, the Director granted the application.

The matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). Hearings were held on October 28, 2011 and November 15, 2011. The parties again stipulated to the facts as set forth in the police report.

The ALJ thereafter issued an initial decision in which she concluded that the evidence established that the parties involved in the altercation were PPH's patrons, and the "disturbance, nuisance, brawl and or act of violence" that occurred on PPH's premises constituted a nuisance in violation of N.J.A.C. 13:2-23.6(b). The ALJ noted that this was PPH's second violation of the nuisance regulation. Accordingly, the ALJ ordered a sixty-day suspension of its plenary retail consumption license.

The Director issued his final decision in the matter on February 3, 2012. The Director found that the ALJ's findings were "well reasoned and amply supported by the record in all respects." The Director accordingly accepted the ALJ's findings of fact and conclusions of law, and ordered a sixty-day suspension of PPH's plenary retail consumption license, commencing on March 15, 2012, and terminating on May 24, 2012.

PPH thereafter sought a stay of the Director's decision pending appeal. The Acting Director of the Division issued an order dated March 15, 2012, denying the application. PPH filed a motion before us for a stay pending appeal. We entered an order dated May 4, 2012, denying the motion.

PPH argues that the facts as set forth in Officer Dubac's report do not support a finding that it allowed, permitted or suffered a nuisance on its premises in violation of N.J.A.C. 13:2-23.6(b). PPH further argues that none of the conduct that Officer Dubac detailed in his report can be ascribed to PPH.

We have thoroughly reviewed the record and conclude that these arguments are without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). We affirm the order at issue substantially for the reasons stated by the ALJ and the Director in their respective decisions. We add the following.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Ibid. In reviewing an agency's action, we consider:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

In weighing these considerations, we must recognize, when appropriate, an agency's "'expertise and superior knowledge of a particular field.'" Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

Furthermore, we are required to accord "substantial deference" to a determination of the Director of the Division enforcing the State's regulations on the sale of alcoholic beverages. Ibid. The "'Director has powers of supervision and control which set him apart from any other formal appellate tribunal."' Ibid. (quoting Blanck v. Mayor & Borough of Magnolia, 38 N.J. 484, 491 (1962)). Moreover, because the State's regulation of liquor is "'a subject by itself,'" we cannot indiscriminately apply principles we otherwise apply when we review actions of administrative agencies. Ibid. (quoting Blanck, supra, 38 N.J. at 490).

As stated previously, PPH argues that the facts as set forth in Officer Dubac's report do not establish a violation of N.J.A.C. 13:2-23.6, which provides:

(a) No licensee shall engage in or allow, permit or suffer on or about the licensed premises:

1. Any lewdness or immoral activity or

2. Any brawl, act of violence, disturbance, or unnecessary noise.

(b) 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.

We are satisfied that there is sufficient credible evidence in the record to support the Director's finding that PPH did not operate its business in an orderly manner, and the conduct described by Officer Dubac constitutes a nuisance under N.J.A.C. 13:2-23.6(b) for which PPH is responsible. In his report, Officer Dubac stated that persons exited PPH's establishment and engaged in an altercation, in which one patron punched another person with a closed fist, causing that individual to sustain personal injuries. Officer Dubac was in front of PPH's establishment when he made his observations. Furthermore, the incident required police intervention and resulted in the filing of criminal charges.

The regulation makes clear that a licensee's responsibility includes its conduct, as well as the conduct of its employees and patrons, "if such conduct is contrary to the public health, safety and welfare." Ibid. Therefore, the Director did not err by finding that PPH is responsible for the conduct described by Officer Dubac.

We are satisfied that there is sufficient evidence in the record to support the Director's finding that that PPH failed to operate its business in the manner required by N.J.A.C. 13:2-23.6(b).

Affirmed.

20130109

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