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Dolphin Father, LLC v. Municipal Board of Alcoholic Beverage Control of City of Newark

Superior Court of New Jersey, Appellate Division

June 10, 2013

DOLPHIN FATHER, LLC, t/a STUDIO 57 R & B, Appellant,
v.
MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF NEWARK, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 28, 2013

On appeal from the Department of Law & Public Safety, Division of Alcoholic Beverage Control, Docket Nos. ABC 03102-2009N, ABC 13537-2009N, and ABC 09357-2010N.

Neil J. Dworkin argued the cause for appellant.

Angela G. Foster, Acting Chief Municipal Prosecutor, argued the cause for respondent Municipal Board of Alcoholic Beverage Control of the City of Newark (Anna P. Pereira, Corporation Counsel, attorney; Ms. Foster, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Alcoholic Beverage Control (Lorinda Lasus, Deputy Attorney General, on the statement in lieu of brief).

Before Judges Parrillo, Sabatino and Fasciale.

PER CURIAM

Appellant Dolphin Father, LLC, the holder of a liquor license in the City of Newark, appeals from a March 26, 2012 final agency decision of the Division of Alcoholic Beverage Control ("ABC" or "the Division") requiring appellant to relocate its liquor store business as a special condition of the renewal of its license. The Division's Acting Director imposed the special condition in light of strong community opposition to the liquor store being reopened on premises that are in close proximity to schools, churches, and a playground, and where there had been prior incidents of violence, drug dealing, prostitution, and other harmful activities when the business was operated there by a previous licensee. Appellant contends that the community opposition was untimely, that it has been wrongfully deprived of an opportunity to recoup a return upon its investment in renovating the premises, and that the Division's ruling is arbitrary and capricious.

Applying our limited scope of review in deference to the Division's regulatory expertise, and recognizing the Division's well-settled legal authority to impose a special condition of relocation in certain circumstances, we affirm the March 26, 2012 final decision. However, we do so without prejudice to appellant presenting to the Division, in connection with its upcoming license renewal application, evidence that it is infeasible for the liquor business to be relocated elsewhere in the City of Newark, and arguing that the special condition therefore should be reconsidered.

I.

Dolphin Father is a limited liability company. Its managing member, Rafael Rodriguez, has worked in the alcoholic beverage industry for many years. Before the present matter arose, Rodriguez had owned and operated a liquor store under a different license on Elizabeth Avenue in Newark.

Appellant is currently the holder of Plenary Retail Consumption License No. 0714-32-698-006, for the sale and consumption of alcoholic beverages at the premises of 945 Bergen Street in Newark. The building on the premises of 945 Bergen Street was constructed in approximately 1912. A liquor store and bar operated at the premises under a prior owner between June 1979 and March 2003. Although the previous store stopped operating in March 2003, the former licensee filed renewal petitions every year through February 2007, all of which were granted.

Within a three-block radius of 945 Bergen Street, there are six houses of worship, two elementary schools, and a community center with a daycare school. Additionally, there is a playground for the daycare school directly across the street from the liquor store.[1]

On August 9, 2006, appellant entered into a thirty-year commercial lease for the first floor of the subject premises which was conditioned upon appellant's successful acquisition of the liquor license. In October 2006, appellant published a notice in a newspaper indicating that it was seeking approval of a license transfer from the then-current owner of the license. The Newark Alcoholic Beverage Control Board ("Newark ABC") did not receive any objections to the proposed transfer. Consequently, after a February 5, 2007 hearing before the Newark ABC, the proposed transfer was approved.

In April 2007, appellant applied for a construction permit to remodel the premises at 95 Bergen Street. The permit was approved on April 13, 2007. The renovation work proceeded and, according to appellant, was completed in May 2008. As part of the renovation, appellant installed awnings with advertisements for beer, wine, sodas, cigarettes, juices, candies, and snacks. Appellant had previously considered also using the premises as a tavern and a cash checking location. However, appellant contends that it presently intends to confine its use of the premises solely as a packaged goods and convenience store.

In late May 2008, appellant attempted to obtain a Certificate of Occupancy. However, it asserts that City inspectors failed to perform the inspections needed for the certificate.

Meanwhile, on May 16, 2008, a civil lawsuit was filed in the Superior Court by several local community organizations seeking to prevent Rodriguez from opening his business.[2] The complaint named as defendants the City of Newark, various City agencies and officers, Rodriguez, and several other defendants, alleging that various provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, and the Alcoholic Beverage Control Act ("the ABC Act"), N.J.S.A. 33:1-1 to -97, had been violated.

On June 28, 2008, the trial court issued an order staying the civil litigation. The court also compelled the plaintiffs in that case to serve upon the Newark ABC written objections to appellant's recently filed renewal application for the 2008-2009 license term, [3] which they did.

The controversy over appellant's license renewal initially was set for a hearing before the Newark ABC in November 2008, but was subsequently adjourned and not rescheduled. As a result, appellant's license renewal was deemed denied, due to the Newark ABC's failure to act within the ninety-day time period prescribed by N.J.A.C. 13:2-2.10.[4]

In February 2009, appellant filed an appeal with the then-Director of the State ABC, seeking relief pursuant to N.J.A.C. 13:2-17.1.[5] The Director issued an order to show cause, which extended appellant's license for the 2008-2009 year, pending a de novo hearing in the Office of Administrative Law ("OAL"). On June 5, 2009, appellant filed a renewal application for the 2009-2010 term.

In June 2009, appellant again sought to obtain a Certificate of Occupancy from Newark. However, its request was refused shortly thereafter on the basis that the premises were located in the city's re-zoned Redevelopment District, which prohibits the sale of liquor.[6] In response, appellant applied to the City's Zoning Officer to declare the premises a preexisting non-conforming use. After appellant's request for such a declaration was denied, it appealed to the Newark Board of Adjustment. That appeal was denied after a hearing in October 2009, in which community residents expressed their opposition to the store as well as their belief that the premises had previously been abandoned. Appellant then sought review of the Board of Adjustment's adverse decision through an action in lieu of prerogative writs filed in the Law Division.

On May 14, 2010, Hon. Thomas R. Vena reversed the Newark Board of Adjustment, finding that the establishment at 945 Bergen Street is a preexisting nonconforming use. Appellant was subsequently issued in June 2010 a Certificate of ...


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