Laurino v. State Division of Alcoholic Beverage Control

• Decision Date: 21 November 1963
• Docket Number: No. A--832,A--832
• Citation: 195 A.2d 306,81 N.J.Super. 220
• Parties: Alfred P. LAURINO, Appellant, v. STATE of New Jersey, DIVISION OF ALCOHOLIC BEVERAGE CONTROL, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 220

81 N.J.Super. 220

195 A.2d 306

Alfred P. LAURINO, Appellant, v. STATE of New Jersey, DIVISION OF ALCOHOLIC BEVERAGE CONTROL,

Respondent.

No. A--832.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 28, 1963.

Decided Nov. 21, 1963.

Edward K. Keefe, Matawan, for appellant.

Avron J. Gold, Nutley, for respondent (Arthur J. Sills, Atty. Gen., attorney).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Alfred P. Laurino (hereinafter 'licensee'), the holder of a plenary retail consumption license, appeals from an order of the Acting State Director of Alcoholic Beverage Control, adjudging him guilty of (1) selling alcoholic beverages to persons under 21 years of age and (2) employing persons under 21 years of age in or upon the licensed premises without obtaining a permit from the Director. This determination resulted in a suspension of the license for a period of 30 days.

The licensee admits the truth of the charges but contends that he established a complete defense under the special facts herein and within the ambit of N.J.S.A. 33:1--77.

The facts are not disputed. In November of 1962 two girls, one 20 years of age and the other 16 years of age at the time, applied to the licensee for employment. Both girls orally represented themselves to be over 21 years of age. The 16-year-old girl showed the licensee what purported to be a genuine baptismal certificate, impressed with the church seal, which recited that she was born on August 8, 1941 and baptized on September 12, 1941 at the Church of Christ the King, Yonkers, New York. Thus, this certificate indicated on its face that this girl was then 21 years old. The 20-year-old girl claimed to have been born on October 17, 1940. If this were true, she would then have been 22 years old. She, too, exhibited a birth or baptismal certificate.

On November 27, 1962 the licensee took the 16-year-old girl to the Union City Bureau of Liquor Control at the local police headquarters. She then and there presented a photograph of herself, signed a form in which she stated she was 21 years old, and was fingerprinted, as required by the local ordinance. She received an identification card issued by the Commissioner of Public Safety, showing her age as 21 and certifying compliance with the provisions of the ordinance. The ordinance required this certificate to be on file on the licensed premises.

The licensee followed the same procedure with reference to the 20-year-old girl on December 7, 1962. She represented that she was 22 years old and her identification card, issued by the local bureau of liquor control, so indicates.

Aside from the oral representations as to their age made by the girls to the licensee, the showing of the baptismal certificate, and their signatures on the fingerprint cards, executed for the local board of liquor control at police headquarters, neither girl signed any other writing certifying or attesting to the licensee that she was 21 years of age, or older.

On January 6, 1963 two agents of the State Division of Alcoholic Beverage Control went to the licensee's premises and there found the two girls in the licensee's employ. The fact of that employment and that the girls had been served alcoholic beverages is admitted. The licensee was charged with serving intoxicating beverages to minors and employing minors without a permit on licensed premises, in violation of Division of Alcoholic Beverage Control Rule 1, Regulation 20, and Rule 3, Regulation 13, respectively.

At the Division hearing, aside from the facts recited above, it was stipulated that if the agents were to testify as to their impression of the girls' apparent ages, they would say the 16-year-old girl appeared to be 18 or 19, and the 20-year-old girl about 19 or 20.

The licensee testified that the girls appeared to him to be over 21. He stated further that he had been in the tavern business as bartender and proprietor for about five or six years. The licensee's bartender, similarly experienced in the tavern business, testified that both girls appeared to him to be over 21. On cross-examination the bartender testified that he knew the girls had police cards and, therefore, did not question them. He admitted that if they did not have police cards he 'might have' asked them about their age because they were 'of that age.'

I.

We consider first the charge of selling alcoholic beverages to minors.

The sale of alcoholic beverages to a minor is a misdemeanor as well as a violation of the rules and regulations of the Division of Alcoholic Beverage Control. N.J.S.A. 33:1--77 provides:

'Anyone who sells any alcoholic beverage to a minor shall be guilty of a misdemeanor; 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 twenty-one (21) years of age or over, and (b) that the appearance of the minor was such that an ordinary prudent person would believe him or her to be twenty-one (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 twenty-one (21) years of age or over.'

The defense provided in the above criminal statute has been held to be available in proceedings before the Division. Sportsman 300 v. Board of Com'rs of Town of Nutley, 42 N.J.Super. 488, 127 A.2d 208 (App.Div.1956).

It has been held that All of the factual elements enumerated in N.J.S.A. 33:1--77 must be present to constitute a defense to the violation. Sportsman 300 v. Board of Com'rs of Town of Nutley, supra. That is: (1) the minor must represent In writing that he or she is over 21, And (2) an ordinary prudent person would believe the minor appeared to be over 21, And (3) the sale was made in good faith relying on the written representation and appearance of the minor and in the reasonable belief the minor was actually 21 or over.

In finding the licensee guilty of selling alcoholic beverages to minors, the Director found that the licensee's defense was lacking in only one of the necessary elements, namely, the appearance of the minors. In his words:

'I find that, notwithstanding the minor's representations and writings (the pertinence of which is questionable), their appearances were such that an ordinary prudent person would not believe them to be of age. Hence one of the requirements necessary to establish the defense provided by R.S. 33:1--77 is lacking.'

There was no finding that the minors had not falsely represented in writing that they were 21 years of age or over, or that the sale of liquor to them was not made in good faith in reliance upon their written representations and in the reasonable belief of the licensee that they were actually 21 years of age or over.

However, on this appeal taken by the licensee, the...