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3 N.J.A.R. 357

Lo-Ran, Inc. v. Bound Brook, Borough of,
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Citation: 3 N.J.A.R. 357
Decision Date: 1981
Agency: DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Synopsis: Lo-Ran, Inc. claims that the Borough of Bound Brook should not have denied its application for an alcoholic beverage license transfer without affording it a hearing. Bound Brook contends that a hearing was not required because the location for the proposed transfer vio- lates a valid municipal ordinance controlling the distance between licensed alcoholic beverage establishments. The administrative law judge found that in August of 1979, the Borough of Bound Brook repealed a 1949 ordinance which had been designed to keep licensed premises at least 700 feet apart. After local election results in November, however, steps were immediately taken to reestablish the 1949 ordinance and on January 15, 1980, the newly elected Borough Council introduced and passed an ordinance rein- stating the 700-foot distance requirement. On January 31, 1980, the same day on which the Notice of Applica- tion of the new distance ordinance first appeared in a local newspa- per, the appellant filed an application for a person-to-person and place-to-place transfer of its plenary municipal retail consumption license. The Borough Council adopted the distance ordinance in final form on February 5, 1980 and two days later, notice of the adoption appeared in the local newspaper. On May 6, 1980, after the Council had received a legal opinion concerning the applicability of the distance ordinance to the Lo-Ran transfer, the Council denied the place-to-place transfer at one of its regular scheduled meetings. The administrative law judge noted that although N.J.A.C. 13:2- 7.10(c) affords an applicant an opportunity to be heard before an application is disapproved, it was unnecessary in this case to deter- mine if such a hearing had been held. Observing that it was well settled that a municipality must apply an ordinance in effect at the time it makes its decision, the judge concluded that the effective date of the new distance ordinance was February 7, 1980, the date on which it was published in the local newspaper. Accordingly, that ordinance was binding upon the Bound Brook Council when appel- lant requested a hearing and when the Council voted to deny the application. While noting that equitable considerations might preclude the en- forcement of such a statute, the judge observed that the appellant had failed to raise any such issue. Accordingly, the administrative law judge ordered that the action of the Council be affirmed. Nachum Bar-Din, Esq, for Appellant Michael W. Berdine!!a, Esq. and William Welaj, Esq., for Respon- dent
Rule(s) Cited: 13:2-7.10(c)