June 13, 2013
POLISH PEOPLE'S HOME, INC., Appellant,
MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF THE CITY OF PASSAIC, Respondent.
NOT FOR PUBLICATION WITHOUT THE§ APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2013
On appeal from the Division of Alcoholic Beverage Control, Docket No. 7627.
Walter J. Tencza, attorney for appellant (David J. Tencza, on the brief).
Florio & Kenny, L.L.P., attorneys for respondent (Christopher K. Harriott, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for Division of Alcoholic Beverage Control (Lorinda Lasus, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Yannotti and Hayden.
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 ninety days. We affirm.
On April 15, 2011, the Alcoholic Beverage Control Board of the City of Passaic (Board) issued a notice to PPH charging it with nine violations of multiple statutes and regulations between February 3 and April 2, 2011. Two violations alleged that on April 1, 2011, PPH had allowed, permitted, or suffered the sale, service, or delivery of alcoholic beverages to a person under the legal age and/or the consumption of alcoholic beverages by a person under the legal age, in violation of N.J.A.C. 13:2-23.1(a). The notice specified that the Board was seeking to revoke PPH's plenary retail consumption license pursuant to N.J.A.C. 13:2-19.11, because this was PPH's fourth violation of the underage consumption regulation.
The Board considered the matter on May 5, 2011. Based on the evidence presented at the hearing, the Board adopted a resolution finding PPH guilty of five of the nine charges, including the underage consumption charges, and revoking its plenary retail consumption license. On May 13, 2011, PPH appealed to the Director and requested a stay of the Board's decision pending appeal. The Director granted the stay and transmitted the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).
At the hearings on October 28 and November 15, 2011, the ALJ heard testimony from several police officers, including Detective Angel Castrillon. He testified that he was working undercover on April 1, 2011 and attended an event that PPH hosted for people ages eighteen years and older. Staff checked identification at the door, and patrons who were twenty-one and older were marked with red ink on their hand and issued wristbands to signify their eligibility to drink alcoholic beverages.
While inside the hall, Castrillon saw one patron, N.H., transfer his wristband to another patron, J.F. He lost track of the two, but later observed J.F. with a drink in his hand, appearing intoxicated. Upon investigation, Castrillon smelled alcohol on J.F.'s breath and learned he was eighteen years old. He did not see J.F. obtain the alcohol and did not test J.F.'s beverage for the presence of alcohol. The police arrested both patrons and charged J.F. with underage drinking and N.H. with allowing a minor to drink.
The ALJ issued an initial decision on January 3, 2012, in which she found, concerning the two April 1, 2011 charges, that the detective's testimony was credible, that the two patrons transferred the wristband for the purpose of obtaining drinks or to appear of age to drink, and that underage alcoholic beverage consumption did occur. She concluded that PPH was guilty on both charges of violation of N.J.A.C. 13:2-23.1(a). The ALJ recommended the other three charges be dismissed. Noting PPH's long history and diligent attempts to prevent underage drinking, she recommended that PPH's license be suspended for ninety days, during which PPH was to work with the Board to develop the best methods for preventing underage drinking and other nuisances.
The Director issued his final decision on the matter on June 25, 2012. He found that the ALJ's findings were "amply supported by the record." The Director thus accepted the ALJ's findings of fact and conclusions of law, and ordered a ninety-day suspension of PPH's retail consumption license, commencing on August 1, 2012 and terminating on October 31, 2012. PPH thereafter filed a motion for reconsideration, which the Director denied on July 2, 2012.
On appeal, PPH reiterates the arguments made to the Director that the evidence at trial, especially Castrillon's testimony, does not support a finding that it violated N.J.A.C. 13:2-23.1(a). PPH further argues that, assuming it violated the subject regulation, the evidence only established one violation.
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 Council 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 credited by the ALJ do not establish a violation of N.J.A.C. 13:2-23.1(a), which provides:
No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person under the legal age to purchase or consume alcoholic beverages, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises.
It is well settled that "[s]trict regulation of the distribution of alcoholic beverages, particularly to young people, has repeatedly and emphatically been approved by our courts." N.J. Div. of Alcoholic Beverage Control v. H & H Wine & Spirit Shop, Inc., 216 N.J.Super. 532, 537 (App. Div. 1987) (citations omitted). Thus, PPH's argument that it did not know that minors were exchanging wristbands and being served alcohol is unavailing as its knowledge and preventative measures are not relevant. As the Court stated in Division of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 180 (2007):
It has long been the law in New Jersey that, in the context of the regulation of alcoholic beverages, "the word 'suffer' . . . imposes responsibility on a licensee, regardless of knowledge, where there is a failure to prevent the prohibited conduct by those occupying the premises with his authority."
We are satisfied that there is sufficient credible evidence in the record to support the Director's finding that PPH suffered the delivery of an alcoholic beverage to an underage patron, and that the conduct described by Castrillon constitutes two separate violations under N.J.A.C. 13:2-23.1(a). Castrillon observed a patron transfer his bracelet to an underage patron, and later saw that patron with a drink in his hand, smelling of alcohol. Whether Castrillon saw the actual sale of the drink to the patron is irrelevant, as the regulation provides only that PPH "suffer the . . . delivery" of alcohol to an underage person.
We conclude that there is sufficient evidence in the record to support the Director's conclusion that PPH failed to operate its business in the manner required by NJAC 13:2-231(a)