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9 N.J.A.R. 225

Roselli, Thomas, Estate of v. Alcoholic Beverage Control, Director, Division of
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Citation: 9 N.J.A.R. 225
Decision Date: 1986
Agency: DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Synopsis: The Estate of Thomas Roselli (petitioner) was the holder of an inactive Plenary Retail Consumption License. The license had ceased active operation in or about 1964, and the Director had granted, pursuant to N.J.S.A. 33:1-12.39, authorization to renew the license in its inactive state for the 1984-85 license term as well as the five previous license terms since this law became effective with the 1978-1979 license term. The last ruling imposed a Special Condition stating that no further renewals would be granted unless the license was being actively used on or before June 30, 1985. The petitioner applied to the Director for additional authorization to renew the license in its inactive state for the 1985-86 license term and the matter was forwarded to the Office of Administrative Law for a determina- tion as to whether the petitioner had established good cause as re- quired by the statute and whether the petitioner had demonstrated sufficient reasons for vacating the Special Condition imposed. The administrative law judge found that the petitioner had made a diligent and persistent effort to activate its license: had expended such funds, time and attention to that end as would have been ex- pended by a reasonable licensee: had adequately addressed the twenty- one year period of inactivity: and had justified a waiver of the Special Condition requiring activation before June 30, 1985. The adminis- trative law judge concluded that relief was established since the peti- tioner had done all that a reasonable licensee could have done, and that in fact, 'the malady (inactivity of a potentially active license) addressed in N.J.S.A. 33:1-12.39 could not be cured by terminating Beverage Control, 6 N.J.A.R. 278 (1982). Finally, the judge rec- ommended that the Director indicate the circumstances in which he would grant relief to this petitioner for the 1986-87 term should the license remain inactive after the granting of the within relief. Upon review, this Initial Decision was rejected by the Director. While recognizing that good cause will be evaluated based on the particular facts of the case, the Director observed that standards to determine the existence of good cause have been established. See, In re Silwad Corp., 9 N.J.A.R. 215 (1985). The Director further articulated that, in the case of multi-term inactive licenses, a dominant emphasis must be placed upon the realistic prognosis as to when the license would be activated. In light of such a standard, all prior petitions and Special Rulings will be reviewed in evaluating the prog- nosis factor. In addition, the Director noted that the Special Condition was placed upon the preceding license renewal as a directive to the peti- tioner to activate the license and would only be vacated upon extreme and clear justification of imminent activation. The Director rejected the administrative law judge's proposed 'reasonable licensee' stan- dard and overruled those concepts in the Chateau Corporation case which are now inconsistent with this determination and the Division's interpretation of N.J.S.A. 33:1-12.39. In applying the relevant factors and reviewing the testimony in this case, the Director found that good cause had not been presented. The licensee had demonstrated no imminent possibility of activating the license if another license renewal was authorized or at any defini- tive point thereafter. The request by petitioner was denied. Michael C. Gaus, Esq., for petitioner (Kelly, Gaus, Holub, Reed and Morro, attorneys) Nancy Mahony, Law Assistant, for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)
Statute(s) Cited: 33:1-12.39