Lyons Farms Tavern, Inc. v. Municipal Bd. of Alcoholic Beverage Control of City of Newark

• Decision Date: 02 February 1970
• Citation: Lyons Farms Tavern, Inc. v. Municipal Bd. of Alcoholic Beverage Control of City of Newark, 261 A.2d 345, 55 N.J. 292 (N.J. 1970)
• Parties: LYONS FARMS TAVERN, INC., Plaintiff-Respondent, v. MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF the CITY OF NEWARK, Defendant-Appellant, and Department of Law and Public Safety, Division of Alcoholic Beverage Control, Defendant-Respondent, and Newark Beth Lsrael Hospital, Objector-Appellant.
• Court: New Jersey Supreme Court

Page 292

55 N.J. 292

261 A.2d 345

LYONS FARMS TAVERN, INC., Plaintiff-Respondent, v.MUNICIPAL BOARD OF ALCOHOLIC BEVERAGE CONTROL OF the CITY OF NEWARK, Defendant-Appellant and Department of Law and Public Safety, Division of Alcoholic Beverage Control, Defendant-Respondent,and Newark Beth Lsrael Hospital, Objector-Appellant.

Supreme Court of New Jersey.

Argued Nov. 3, 1969.

Decided Feb. 2, 1970.

Clive S. Cummis, Newark, for objector-appellant Newark Beth Israel Hospital (Alan J. Gutterman, Newark, on the brief, Cummis, Kent & Radin, Newark, attorneys).

Sam Weiss, Asst. Corp.Counsel of the City of Newark, for defendant-appellant(Philip E. Gordon, Corp.Counsel of the City of Newark, attorney).

Rocco F. Senna, Newark, for plaintiff-respondent Lyons Farms Tavern, inc.

Arthur J. Sills, Atty. Gen., filed a Statement in Lieu of Brief on behalf of Division of Alcoholic Beverage Control(Stephen Skillman, Asst. Atty. Gen., of counsel).

The opinion of the court was delivered by

FRANCIS, J.

PlaintiffLyons Farms Tavern, Inc. operates a tavern at 368 Clinton Place, Newark, N.J.It is the holder of a plenary retail liquor license and, by virtue thereof, sells alcoholic beverages over the bar for on-premises consumption.Packaged goods for off-premises consumption are likewise sold over the bar; there is no separate room or department set aside for them.In early 1967 the volume of business having increased, and further increase being anticipated, plaintiff applied to the Municipal Board of Alcoholic Beverage Control for a place-to-place transfer of its license so as to include thereunder a 750 square foot addition to its building to be constructed in accordance with plans submitted with the application.After a full hearing the local board unanimously denied the request.Plaintiff appealed to the State Division of Alcoholic Beverage Control where the Director reversed and ordered transfer of the license so as to include as part of the licensed premises the enlargement described in the plans.Further review followed in the Appellate Division where in an unreported opinion the Director's order was affirmed.Thereafter we granted certification on the petitions of the City of Newark and Newark Beth Israel Hospital, one of the objectors in the proceedings below.Lyons Farms Tavern, Inc. v. Municipal Board of Alcoholic Beverage Control of City of Newark, 54 N.J. 107, 253 A.2d 554(1969).

At the local board hearing it appeared that plaintiff had conducted its business at this location since 1954.The tavern occupied the entire first floor and basement of the building.The second floor contained living quarters which according to a neighbor witness had been rented to transient roomers.That practice seemed to have been discontinued.In describing the use of the second floor at the time of the hearing, one of plaintiff's officers simply said '(w)e have tenants there.'The plaintiff's plan is to extend the length of the building from 60 to 90 feet and to lengthen the bar so that it would run almost the entire length of the old and the new building.Some stools would be placed at the bar and tables and chairs would be added to the new area for convenience of patrons.Outside the building off-street parking would be provided for from 20 to 24 cars.At least four sizeable signs presently bedeck the building to draw the public's attention.Plaintiff agreed to remove one of them, described as 'garish,' if its application for extension was granted.

Substantial opposition to the enlargement was voiced by neighbors, local residents, three neighborhood and civic associations with sizeable memberships, two Rabbis serving local and community interests, and by representatives of the nearby Beth Israel Hospital.These objectors spoke of Newark as being a tense, troubled city in which serious disturbances had occurred in the recent past.Crime in the streets, particularly muggings and other types of assaults, had been increasing not only at night but during the day as well.Although no witness could connect any specific criminal incident or neighborhood disturbance with plaintiff's tavern, it was suggested that consumption of alcohol frequently provides the stimulation for unlawful activity.In this connection, we take judicial notice of the fact that in recent times when riots have taken place in urban areas around the country, including Newark, one of the first acts of government to bring about peace was to order the closing of liquor-selling establishments.See, Lieberman v. Saddle River Tp., 37 N.J.Super. 62, 64, 116 A.2d 809(App.Div.1955);Reilly v. 180 Club, Inc., 14 N.J.Super. 420, 424, 82 A.2d 210(App.Div.1951);State v. Chandler, 98 N.J.Super. 241, 243--244, 236 A.2d 632(Cty.Ct.1967);Von Eye v. Hammes, 147 F.Supp. 174, 182(D.Minn.1956), aff'd sub nom.Mounds Park Hospital v. Von Eye, 245 F.2d 756, 70 A.L.R.2d 335(8 Cir.1957);O'Connor v. Board of Zoning Appeals, 140 Conn. 65, 98 A.2d 515, 517(1953);State v. Boles, 5 Conn.Cir. 22, 240 A.2d 920(Cir. Ct.1967);Smith v. Ballas, 335 Ill.App. 418, 82 N.E.2d 181, 183(App.Div.1948);Klopp v. Benevolent Protective Order of Elks, 309 Ill.App. 145, 33 N.E.2d 161, 165(App.Div.1941);Safee v. City of Buffalo, 204 App.Div. 561, 198 N.Y.S. 646, 650(App.Div.1923);Garcia v. Gusmack Restaurant Corporation, 150 N.Y.S.2d 232(Cty.Ct.N.Y.1954).In the briefs before usthe objectors point out that the number of liquor licenses presently outstanding in Newark exceeds the statutory maximum.See, N.J.S.A. 33:1--12.14.They suggest also that this condition will not be alleviated simply by denying new licenses, if enlargements of licensed premises are authorized for the purpose of accommodating and encouraging increased business thereby attracting additional customers to the neighborhood.In this connection they note that there is another tavern a block from plaintiff's place and a second one two blocks away.

At the hearing attention was called to the fact that for residential purposes there has been a movement away from the core of the city and toward its perimeters.This has brought new residents to the plaintiff's largely middle-income-housing neighborhood.Although some commercial activities are present, much of the locality is devoted to residences.The organizations whose representatives testified were composed of hundreds of old and new residents of the locality.These groups were formed among other reasons to preserve the character of the neighborhood against the erosion and deterioration that are attacking urban areas.One of their objectives was to oppose any increase in liquor licenses or facilities for sale of liquor.It was their view that such increases are associated inevitably with physical and moral decay of the section of the community involved as well as with an upsurge in the rate of crime.One association presented petitions of 700 or more persons who opposed plaintiff's application; the representative of the second testified that he expressed the opposition of 400 to 500 other persons who lived in the immediate area; the third spoke on behalf of the Weequahic Community Council which consisted of approximately 50 block organizations representing 'thousands of people.'He expressed its sentiments in part in this fashion:

'We are not overly impressed that the tavern has a good record.We only know one thing: Whiskey is the root of much evil.In a changing community it brings all kinds of problems: slums, crime, lawlessness and degradation.It is as simple as that.'

One Rabbi, Chaplain of the City of Newark, testified as co-chairman of an organization composed of the clergy of all faiths in the Weequahic community (the section of the City in which plaintiff's tavern is located).His group was concerned with improving the area and preventing any further deterioration of its residential character.He expressed the belief of the clergy that expansion of plaintiff's liquor facilities undoubtedly would lead to further tensions and increased hazards for the citizens of the general area.In this connection he said that in his nearby synagogue he has four services every day.Many of his people refuse to attend the evening services because they are afraid to leave their homes and walk on the public streets.

A second Rabbi, pastor of the Torah Chaim Jewish Center located five blocks away from plaintiff's tavern, restated the opposition sentiments of his colleague.He spoke for the Center, its affiliated organizations, the Hebrew School (whose children come 'from all directions' and attend the school in the late afternoon and early evening hours), its youth group and for King David Towers, Inc.The last named corporation was about to build, only four blocks from the tavern, a high-rise apartment for elderly people.It will involve an expenditure of about one and a half to two million dollars and was expected to house at least 200 elderly persons.These people and other members of the Rabbi's faith are expected to attend evening services, some of which do not end until 9:30 P.M.It was the Rabbi's opinion that expansion of the tavern would attract more people to the area and create additional hazards for the locality.He pointed out that the tavern premises and parking area are on the corner of Clinton Place and Lyons Avenue.Lyons Avenue is a county road and the estimate was that 5000 motor vehicles using it daily would pass the tavern.He said also that about five weeks before the hearing his own secretary was the victim of a holdup in a nearby bank and that about two weeks later she was mugged, knocked down and her purse stolen.Although he could not say that these offenses were committed by a tavern patron, he was 'trying to build a fence' against an increase in such hazards and thus protect against further deterioration of the neighborhood.The testimony of the owner of a one-family house located at 225 Lyons Avenue, 50 feet away from the tavern, might be...