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2 N.J.A.R. 380

Bill & Betty's Tavern; Alcoholic Beverage Control, Division of, v
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Citation: 2 N.J.A.R. 380
Decision Date: 1980
Agency: DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Synopsis: The Division of Alcoholic Beverage Control charged the tavern with the sale of an alcoholic beverage to an actually or apparently intoxicated person in violation of N.J.A.C. 13:23.1. In order to establish a violation, the Division is required to prove the elements of the charge by a preponderance of the evidence. Although there was no dispute as to the sale or content of the alcoholic beverage, testimony was offered which attempted to show that the mumbling, slow speech and unusual mannerisms of the individual served were due, not to intoxication, but to a speech impediment and the fact that he was 'kind of slow.' The administrative law judge determined that the applicable standard for review was whether a reasonable mind might view these external characteristics as indications of intoxication. Applying this standard, the judge determined that substantial evidence supported a conclusion that the individaui appeared to be apparently intoxicated. The argument that the individual's conduct was not a deviation from his normal behavior was found to be without merit, for to accept such an argument would require an investigating agent to know the individual idiosyncrasies of each drinker. It was also noted that the failure to call the served individual to testify created an adverse inference against the interests of the tavern. Charles J. Mysak, Deputy Attorney General, for Petitioner (John J. Degnan, Attorney General of New Jersey, Attorney) George F. Hendrickson, Esq., for Respondent
Rule(s) Cited: 13:2-23.1