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9 N.J.A.R. 215

Silwad Corporation for Relief Pursuant to the Provisions of N.J.S.A. 33:1-12.39, In the Matter of the Application of
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Citation: 9 N.J.A.R. 215
Decision Date: 1985
Agency: DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Synopsis: Silwad Corp. applied to the Director of the Division of Alcoholic Beverage Control for authorizations to renew its plenary retail con- sumption license, pursuant to N.J.S.A. 33:1-12.39, for the 1984-85 license term. In addition, since the license had been inactive since 1974 and the petitioner had received no previous authorizations to renew the license in its inactive state, the petitioner was required to apply for relief for the six previous license terms, nunc pro tunc, since this law became effective with the 1978-79 license term. The matter was forwarded to the Office of Administrative Law for a determination as to whether the petitioner had established good cause as required by the statute. The administrative law judge assigned to the case ultimately concluded that good cause had been established. Upon review, the Director of the Division of Alcoholic Beverage Control rejected cer- tain aspects of the initial decision concerning findings of fact and conclusions of law, but did concur that petitioner was entitled to relief. The Director noted that N.J.S.A. 33:1-12.39 was enacted to ensure that licenses which are inactive will resume active status within a two-year period or lapse unless the licensee can demonstrate to the Director's satisfaction that good cause exists to allow a license to continue in its inactive status. While good cause will be determined on a case by case basis, the Director will examine those factors which demonstrate a willingness on the part of the applicant to attempt to activate the license. Those factors include: the specific efforts taken; those factors outside the control of the applicant which thwart or delay the efforts to activate; the monetary expenditures incurred towards activation; the need or necessity for any further licenses in the community; and the prognosis as to when the license will be activated. In re: Silwad Corp. The Director further noted that the statute indicates that if the licensee is deprived of the use of the licensed premises because of fire, eminent domain or casualty, a standard of 'good faith effort to resume active use' will be applied. In all other cases, 'good cause' is required for renewal. In establishing good cause, recognition must be given to the concept that a petitioner must not only demonstrate efforts to activate the license, but also show a realistic prognosis as to when it expects the license to be actively used as well. In applying those factors to the present case and in reviewing the testimony, the petitioner demonstrated that the license would be activated presumably before the end of the current term. In addition, the licensee noted that for the previous license terms, it had filed the necessary application and fees and the municipality renewed the license, albeit improperly. Therefore, the licensee assumed nothing additional was necessary to complete the renewal process and to a certain extent relied to its potential detriment on the actions of the municipality. The Director authorized renewal of the licensee for the current license term and granted relief for the previous license terms, nunc pro tunc, subject to a special condition that no further appli- cations for renewal would be allowed unless the license was being actively used in an approved location on or before June 30, 1985. Peter J. Melchionne, Esq., for petitioner (Robert S. Damiano, at- torney) Beverly M. Wurth, Esq., for the Borough of East Rutherford (Alfred A. Porro, Jr., attorney)
Statute(s) Cited: 33:1-12.39