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10 N.J.A.R. 1

Dunn, In Re: George 'Chip' .
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Citation: 10 N.J.A.R. 1
Decision Date: 1984
Synopsis: Applicant filed for a special concessionaire permit pursuant to N.J.S.,4 33:1-42 and N.J.,4.C 13:1-5.2 to operate a restaurant-bar at a State-owned marina in Atlantic City. The term of the concession agreement extended from March 15, 1983 to December 31, 1983: thus, the right to serve alcoholic beverages by virtue of the special con- cessionaire permit would expire on December 31, 1983. Based upon the Division's notice of intent to deny the appli- cation, a request for a hearing was filed. The administrative law judge assigned to the case found that the applicant had never been convicted of a crime and that while he was currently under indictment and had faced investigations and criminal charges in the past, he met the threshold test for licensure. In addition the .judge found that the applicant possessed particular and specialized experience in the food- liquor business, that he possessed a good administrative background and that the Division had failed to establish applicant's business relationship with individuals engaging in criminal activity. Accordingly, the .judge concluded that the applicant was worthy to hold a permit and ordered approval of his application. Upon review, this initial decision was rejected by the Director of the Division of Alcoholic Beverage Control. The Director noted that at the time of the issuance of the final decision, the applicant no longer had the required possessory interest in the premises and thus was not entitled to the issuance of a special concessionaire's permit. In addition, the Director observed that an applicant always bears the burden of proof with respect to establishing fitness for qualifi- cation, and that a license to sell intoxicating liquor is essentially a permit to pursue an otherwise illegal operation. When reviewing an application, the Director must, in exercising his extensive powers of supervision and control, determine if the public good requires the issuance of a license. This was found to be particularly true in the present case because of the Division's special concerns created by the In Re: Dunn establishment of legalized gambling in Atlantic City as further re- cognized by the provisions of N.J.A.C. 13:2-3.10, et seq. The Director specifically rejected the judge's view that by virtue of the applicant's being of legal age and not having been convicted of a crime, he met the 'threshold of licensure.' In contrast, the Director noted that these conditions merely indicate that the applicant is not statutorily disqualified from being licensed and that he must still affirmatively prove his qualifications. The Director, upon his review of the record noted that, besides the pending indictment which alleged the applicant had committed acts classified as crimes of the fourth degree and had been associated with persons who were either criminals or of disreputable character, he had also been convicted of stealing which resulted in a disorderly persons violation. The applicant during testimony admitted knowing persons who were allegedly members of the Nicodemo 'little Nicky' Scarfo Organized Crime Family. He had been the subject of a criminal complaint that he had defrauded the Atlantic National Bank of $8,350.00. He was charged with credit card theft as well as driving while his license was revoked and without insurance. When confronted with the possession of a credit card issued to George D. McCormick, he stated he found it in the trash, but gave no reason for carrying it. While much of this information was of a hearsay nature, some had been corroborated and all of it provided a basis of legitimate concern to a licensing authority. Reviewing the applicant's financial capacity, the Director found that he had embarked upon his business venture on less than a shoe- string budget. He was late (if not having totally failed) in paying the proper amounts due on the concession agreement. He held himself out as a competent businessman who dealt with 12 to 14 million dollars worth of funds, but had no credit history. He stated he did not believe in credit cards, but was charged with credit card theft. The judge's finding of his 'particular and specialized experience in the food-liquor business' was entirely based either upon his own testimony or the self promotional brochures composed by and sub- mitted on behalf of the applicant. Here, given the totality of the evidence, the Director concluded that the applicant had not met the burden of establishing his fitness for licensure and thus it would not be in the public interest to grant him a permit. State of New Jersey 3 In Re: Dunn Harold I. Garber, Esq., for petitioner Carol L. Widemon, Deputy Attorney General, for respondent (Irwin I. Kimmelman, Attorney General of New Jersey, attorney)
Statute(s) Cited: 33:1-42