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1 N.J.A.R. 365

Marini, John R. v. Alcoholic Beverage Control, the Division of
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Citation: 1 N.J.A.R. 365
Decision Date: 1980
Agency: DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Synopsis: After serving one year's probation for a criminal conviction arising out of an assault with a deadly weapon and carrying a revolver, John Marini applied under N.J.A.C. 13:2-14.1 for an unlimited Rehabilitation Employment Permit from the Division of Alcoholic Beverage Control to manage the premises where he and his wife had formerly been the licensed owners. The Division would have allowed Marini a permit to manage any liquor establish ment except the one formerly owned by Marini and his wife. The administrative law judge found that, on the advise of counsel, Mr. Marini transferred his interest in the couple's restaurant-lounge to Mrs. Marin shortly after his conviction in 1978 and hd, for the most part, been out of work since that time. Mrs. Marini had worked with her husband in virtually all their business ventures for more than 20 years ap..d for at least six years had worked with her husband full time for equal pay in the alcoholic beverage industry. The judge observed that the Division's refusal to grant an unlimited permit was based on its fear that to do so would place Marini in a tempting situation in which a 'front' (i. e., the active control of a liquor establishment by someone who would otherwise be disqualified and who is not the named licensee) could develop. This refusal was not based on any personal knowledge of the restaurant's operation nor did any field investigation take place. The judge noted that the Division's position was apparently based on a 1980 internal memorandum to the Division's Enforcement Bureau directing that 'Rehabilitation Permits should only be issued to a petitioner who will not be employed in an establishment where such petitioner has held a prior financial interest.' The administrative law judge concluded that this internal memorandum could not be used as the sole reason for denying a permit to Marini, nor was it binding on the administrative law judge. The judge observed that the Division had failed to show that the internal memorandum represented its 'long-continued usage and practice'; its recent date would preclude such a showing. Nor could an internally adopted policy bind the public since there was no opportunity for public comment and no public awareness of the rule with which the public is supposed to comply. The judge also rejected the argument that an administrative agency could establish policy and procedures through either formal rule making or by individual ad hoc litigation. The judge found that such an argument ignored current opinion disapproving of ad hot' policy making in lieu of formal rule making with public participation. The judge also noted that administrative law judges were not bound to accept without question an agency party's position since an administrative law judge's duty is not simply to anticipate an agency head's decision but to conduct an impartial and unbiased due process hearing. The judge pointed out that the underlying assumptioh of N.J.S.A. 52:14F-1 et seq. (which created the Office of Administrative Law) is that agencies rendering final decisions will be able to separate regulatory-advocate functions from adjudicative roles. As a result, although the judge would give careful consideration to the Division's policy, it was not controlling and he would consider it analogous to any party's contention in civil litigation. The administrative law judge found that under existing statutory and regulatory framework, individuals with convictions involving moral turpitude may be employed in a licensed establishment, N.J.S.A. 33:1-26, provided that the employment is not 'contrary to the public interest .... ' N.J.A.C. 13:2-14.5 Based upon Mrs. Marini's experience, the administrative law judge found that she was a knowledgeable owner of a licensed premises who would not vanish from the premises and allow her husband a ¾ee hand if he were to become manager. Furthermore, any reluctance to grant the permit based upon any perceived notion that a wife may be easily controlled by her husband was outweighed by the facts of the case and by the current law. Accordingly, the administrative law judge concluded that granting an unlimited Rehabilitation Employment Permit to Mr. Marini would not be contrary to the public interest. Richard L. Friedman, Esq., for Petitioner (Avena, Hendren and Friedman, Attorneys) Jerome A. Ballarotto, Deputy Attorney General for Respondent (John J. Degnan, Attorney General of New Jersey, Attorney) State of New Jersey 367
Rule(s) Cited: 10:87-5 et seq. 
Citation Tracker rejected, Div. of A.B.C.; dismissed-App. Div., A-2297-80, 5/18/81 (unreported) [Updated through 1991]