Greenbrier, Inc. v. Hock

• Decision Date: 17 May 1951
• Docket Number: No. A--69,A--69
• Citation: 14 N.J.Super. 39,81 A.2d 398
• Parties: GREENBRIER, Inc., v. HOCK, Director of Division of Alcoholic Beverage Control, in Department of Law and Public Safety.
• Court: New Jersey Superior Court — Appellate Division

Page 39

14 N.J.Super. 39

81 A.2d 398

GREENBRIER, Inc., v. HOCK, Director of Division of Alcoholic Beverage Control, in Department of Law and Public Safety.

No. A--69.

Superior Court of New Jersey, Appellate Division.

Argued April 9, 1951.

Decided May 17, 1951.

Abraham I. Mayer, Newark, argued the cause for appellant (Mr. Thomas L. Hanson, Newark, attorney).

Samuel B. Helfand, Deputy Atty. Gen., argued the cause for respondent (Theodore D. Parsons, Atty. Gen. of New Jersey, attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

The appellant is the holder of a plenary retail liquor consumption license. It was found guilty of charges that it allowed, permitted or suffered the following prohibited conduct: (1) lewdness and immoral activities on its licensed premises, in violation of Rule 5 of State Regulation No. 20; (2) sale and service of alcoholic beverages on its licensed premises during prohibited hours, in violation of local ordinance, and (3) during such prohibited hours it failed to have its entire licensed premises closed and permitted persons other than the licensee and its employees to remain thereon, in violation of local ordinance. An order was entered by the Director of the Division of Alcoholic Beverage Control suspending the appellant's license for a period of 90 days.

Both the state regulation and the local ordinance provide that the licensee shall not 'allow, permit or suffer' the prohibited conduct. The licensee concedes that the prohibited conduct as charged was proved, but argues that there was a failure to prove that it allowed, permitted or suffered such conduct.

At about 5:45 A.M. on April 21, 1950, one William Berry, who resided next door to the licensed premises, gained access to the tavern for himself and others, by the use of a key given to him by the president of the corporate licensee. William Berry participated in the prohibited conduct which occurred on the licensed premises between 5:45 A.M. and 6:45 A.M. on that day. The licensed premises are located in a building owned by a corporation controlled by William Berry and his two brothers, James and Ellie. The licensee obtained the license in September, 1948, by transfer from Vella Berry, the wife of William Berry. The licensee is a corporation in which the stock is held as follows: Patsy Giuliano, eight shares; James Berry, brother of William, one share; and Ellie Berry, brother of William, one share. Patsy Giuliano, the president of this corporation, lives about 40 miles from the licensed premises. He employed two bartenders, each of whom resides near the tavern and has a key to the premises. Giuliano visited the tavern only two or three times a week. He testified that he gave a key to the tavern to William Berry 'about a couple of weeks before' the prohibited conduct occurred, in order to permit him to paint the inside of the premises, fix a pump and fix the sewer system, but denied that William Berry was an agent, servant or employee of the licensee.

The licensee argues that there was error in the finding that it allowed, permitted or suffered the prohibited conduct, because there was no proof that the licensee or any agent, servant or employee of the licensee participated in the violation. The licensee relies on Rule 31 of State Regulation No. 20, which provides: 'In disciplinary proceedings brought pursuant to the Alcoholic Beverage Law, it shall be sufficient, in order to establish the guilt of the licensee, to show that the violation was committed by an agent, servant or employee of the licensee. The fact that the licensee did not participate in the violation or that his agent, servant or employee acted contrary to instructions given to him by the licensee or that the violation did not occur in the licensee's presence shall constitute no defense to the charges preferred in such disciplinary proceedings.' It is argued that under this regulation there can be no finding of guilt of the licensee. But the finding of guilt here did not depend upon Rule 31 of State Regulation No. 20. This rule contains no prohibition and is merely declaratory of certain applicable court decisions. Cf. Grant Lunch Corp. v. Driscoll, 129 N.J.L. 408, 29 A.2d 888 (Sup.Ct. 1943), affirmed 130 N.J.L. 554, 33 A.2d 900 (E. & A. 1943), certiorari denied 320 U.S. 801, 64 S.Ct. 431, 88 L.Ed. 484 (1944); Cedar Restaurant & Cafe Co. v. Hock, 135 N.J.L....