Faces, Inc. v. Kennedy

• Decision Date: 08 June 1981
• Citation: 185 N.J.Super. 113,447 A.2d 592
• Parties: FACES, INC., t/a Creations, a corporation of the State of New Jersey, Plaintiff, v. Barbara KENNEDY, Deborah Kennedy, Kathleen Kennedy and Robert Kennedy, Defendants.
• Court: New Jersey Superior Court

Page 113

185 N.J.Super. 113

447 A.2d 592

FACES, INC., t/a Creations, a corporation of the State of

New Jersey, Plaintiff, v. Barbara KENNEDY, Deborah Kennedy, Kathleen Kennedy and Robert Kennedy, Defendants.

Superior Court of New Jersey, Law Division,

Essex County.

Decided June 8, 1981.

Stephen N. Dratch, Roseland, for plaintiff (Greenberg, Margolis, Ziegler & Schwartz, Roseland, attorneys).

Amos Gern, West Orange, for defendant Barbara Kennedy (Gern, Stieber, Dunetz, Davison & Weinstein, West Orange, attorneys).

VILLANUEVA, J. S. C.

This case involves the novel issue of whether a minor is responsible for damages sustained by a liquor establishment in lost profits resulting from a liquor license suspension caused when the minor orally fraudulently misrepresented her age to the owner of the liquor license who thereafter sold liquor to her.

Defendant Barbara Kennedy (hereinafter referred to as "defendant"), was born on October 6, 1961. On April 7, 1979, at the age of 17 and with the aid of false identification, she gained access to plaintiff's establishment for the purpose of purchasing alcoholic beverages for on-premises consumption.

Sometime before the incident in question defendant had taken her older sister's driver's license and reported it to be missing to the New Jersey Division of Motor Vehicles. As a consequence, the Division forwarded a temporary duplicate driver's license, which document precipitated the institution of the within action.

Defendant has, on occasions prior to April 7, 1979, used various forms of identification to gain access to liquor establishments. In order to gain entry to plaintiff's establishment, defendant knew she needed proof of age, knew that she would not have been admitted if she had told the doormen that she was under age, and knew she was using false identification to gain admission to plaintiff's business premises.

Once inside, defendant consumed four mixed drinks known as "ice teas," six or seven shots of Bourbon whiskey and beer chasers in between the latter. Defendant, at the time she ordered the drinks, knew that she was under age.

When defendant drove home later that night she was involved in an automobile accident. As a result of her condition at the time of the accident, it was learned that she had consumed alcohol at plaintiff's establishment. A hearing ensued before the Municipal Board of Alcoholic Beverage Control of West Orange, which suspended plaintiff's plenary retail consumption license for ten days for the unlawful sale of alcoholic beverages to a minor of 17 years of age, in violation of N.J.A.C. 13:2-23. 1(a). The suspension was affirmed on appeal by an administrative law judge, and later by the Appellate Division of the Superior Court.

The testimony at the appeal of the liquor license suspension indicated that when defendant was checked for proof of age when she entered plaintiff's premises, she showed the temporary license of her sister Deborah, who was 19. There was also a statement given to the police at the time of the accident that defendant had also displayed a birth certificate of Deborah, but this fact was not relied upon for the suspension. No one asked for any other proof, nor did anyone ask her to sign any kind of a statement that she was of age.

The decision of the local licensing board found that the plaintiff had violated N.J.A.C. 13:2-23.1(a), which states that

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 age of 18 years, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises.

and N.J.S.A. 33:1-77, which states that

Anyone who sells any alcoholic beverage to a minor is a disorderly person; provided, however, that the establishment of all of the following facts by a person making any such sale shall constitute a defense to any prosecution therefor: (a) that the minor falsely represented in writing that he or she was 21 years of age or over, (b) that the appearance of the minor was such than an ordinary prudent person would believe him or her to be 21 years of age or over, and (c) that the sale was made in good faith relying upon such written representation and appearance and in the reasonable belief that the minor was actually 21 years of age or over.

(See N.J.S.A. 9:17B-1, which reduced the age from 21 to 18).

In affirming the suspension the administrative law judge also relied upon the "Special Note" concerning the defense provided by N.J.S.A. 33:1-77, which is set forth at the conclusion of instructions on disciplinary proceedings in the appendix to the rules and regulations of the Division of Alcoholic Beverage Control, N.J.A.C., Title 13, Subtitle B. The Special Note reads:

In disciplinary proceedings involving alleged sale of alcoholic beverages to a minor in violation of N.J.A.C. 13:2-23.1, the defense provided by N.J.S.A. 33:1-77 is available to the licensee. However, to establish the defense, it must affirmatively appear (a) that the minor falsely represented himself in writing to be of age; (b) that the minor's appearance was such that an ordinary prudent person would believe him to be of age; and (c) that the sale was made in reliance upon such written representation and appearance and in the reasonable belief that the minor was of age. Hence it is not a defense that mere verbal inquiry may have been made as to the age of the minor or that the minor had verbally misrepresented his age or that the minor had displayed some document (such as a driver's license, county clerk identification card, birth certificate, or any other similar document) which represented his age as 18 or over. The representation in writing required by the Alcoholic Beverage Law is a writing made by the minor at or prior to the time of sale or service. Such writing must be signed by the minor in the presence of the licensee or his employee and one in which the minor gives his name, address, age, date of birth and, by signing the writing, makes a statement that he is making the representation as to his age to induce the licensee to make the sale. After the writing has been signed, the licensee should require that the person signing the representation adequately identify himself as that person and thus affirmatively avoid the acceptance of these representations from persons using fictitious names, addresses and ages. The signed representation should then be retained by the licensee.

Plaintiff filed a complaint against Barbara Kennedy, her sister Deborah and her parents, Kathleen Kennedy and Robert Kennedy, alleging loss of business profits for the ten-day period of the suspension of the liquor license. The claim against Barbara Kennedy is based upon her "use of false identification" to gain entrance to plaintiff's premises. The claim against Deborah Kennedy is based upon her alleged negligence in allowing her identification to come into the possession of Barbara. The claim against the parents is based upon the alleged negligent supervision and control of their children, Deborah and Barbara.

Plaintiff made a motion for partial summary judgment on the issue of liability, against defendant Barbara Kennedy only. The defendant made a cross-motion for summary judgment dismissing the complaint as to her. The court will address both of these motions.

An infant may be liable in tort for his fraud or his misrepresentation. 43 C.J.S., Infants, § 192. As a general rule, an infant is civilly liable for his torts to the same extent as an adult, so long as the tort is not connected with a contract. Id., § 189 [447 A.2d 595] at 503; Brunhoelzl v. Brandes, 90 N.J.L. 31, 100 A. 163 (Sup.Ct.1917); Steelman v. Gilbert, 14 N.J.Misc. 490, 186 A. 47 (Sup.Ct.1936). This same rule also extends to liability for intentional tort, as here, committed by an infant. Guzy v. Gandel, 95 N.J.Super. 34, 229 A.2d 809 (App.Div.1967); State in the Interest of D. H., 139 N.J.Super. 330, 353 A.2d 570 (J. & D. R. 1976), aff'd 153 N.J.Super. 490, 380 A.2d 295 (App.Div.1977).

There appears to be a conflict of authority as to the question of whether an action will lie against an infant for falsely representing himself to be of full age. Some authorities consider that a false representation as to age inducing a contract is a part of the contract and accordingly hold that it cannot be the basis of an action in tort. Other authorities hold that such misrepresentation may be the basis of such an action, on the theory that such misrepresentation is not a part of, and does not grow out of, the contract, or that the enforcement of liability for such misrepresentation as a tort does not constitute an indirect method of enforcing liability on the contract. 43 C.J.S., Infants, § 193b.

The principles of law applicable to the case at hand have been discussed in definite terms in the leading case of Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), where the Supreme Court said:

The Legislature has in explicit terms prohibited sales to minors as a class because it recognizes their very special susceptibilities and the intensification of the otherwise inherent dangers when persons lacking in maturity and responsibility partake of alcoholic beverages; insofar as minors are concerned the sale of the first drink which does "its share of the work" ... and which generally leads to the others is unequivocally forbidden. See R.S. 33:1-77. In furtherance of the legislative policy, the Division of Alcoholic Beverage Control has by its Regulation No. 20, Rule 1, provided that no licensee shall permit any minor to be served or consume any alcoholic beverages; and the same regulation contains a provision against service to or consumption by any person "actually or apparently intoxicated." It seems clear to us that these broadly expressed restrictions were not narrowly intended to benefit the minors and...