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9 N.J.A.R. 349

Fizer Corporation t/a Go-Go Rama, In the Matter of Disciplinary Proceedings Against
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Citation: 9 N.J.A.R. 349
Decision Date: 1984
Agency: DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Synopsis: The licensee was charged with three instances of allowing lewd and immoral dancing upon its premises in violation of N.J.A.C. 13:2-23.6 and with two instances of failing to keep on the licensed premises a list containing the names and addresses of employees and other information required pursuant to N.J.A.C. 13:2-23.13(a)(3). The Director of the Division of Alcoholic Beverage Control rejected licensee's constitutional attacks on N.J.A.C. 13:2-23.6, finding that the regulation had withstood similar constitutional challenges in the courts. In addition, the Director held that the licensee had the burden of establishing the invalidity of the regulation and it had failed to establish that the regulation was void based on alleged deficiencies in the regulatory adoption process. The Director also denied licensee's motion to have the charges made more definite and to strike the term 'indecent' from those charges, concluding that case law is clear that the terminology gave sufficient notice as to what issues were involved. The Director also determined that the Division had fulfilled its responsibilities of providing appropriate discovery by supplying investigative reports to the licensee. The licensee's argument that the dancers performing at the licensed premises were 'independent contractors' and thus not subject to record-keeping requirements of N.J.A.C. 13:2-23.13(a)3 was rejected by the Director. In doing so he noted that it was immaterial whether the performers were in the employ of the licensee or independent contractors--the licensee was still responsible for their conduct as well as the proper completion of all records. Noting that the Division had to establish its case by a fair preponderance of the evidence and that minor inconsistencies in the testimony of the investigating agents would not destroy their credibility, the Director concluded that the evidence supported a conclusion that dancing which took place was lewd and immoral and had been permitted by the licensee. Based upon prior violations of the same regulation, the Director determined that revocation of the license was the only appropriate penalty in this matter.
Rule(s) Cited: 13:2-23.6(a)2 13:2-23.13(a)(3)