NOT FOR PUBLICATION WITHOUT THE§ APPROVAL OF THE APPELLATE DIVISION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 ...