IN THE MATTER OF ALEJANDRO BATISTA, LIC. NO.0714-33-500-007

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1954-05T11954-05T1

IN THE MATTER OF THE REQUEST

FOR SPECIAL RULING OF INACTIVE

LICENSE PURSUANT TO N.J.S.A.

33:1-12. 39 FOR THE 2003-04

LICENSE TERM; AND REQUEST FOR

SPECIAL RULING TO PERMIT ISSUING

A NEW LICENSE UPON FAILURE TO

TIMELY RENEW PURSUANT TO N.J.S.A.

33:1-12. 18 FOR THE 2003-04

TERM.

ALEJANDRO BATISTA,

LICENSE NO. 0714-33-500-007

Applicant-Appellant.

________________________________________

 

Submitted July 24, 2006 - Decided September 21, 2006

Before Judges C.S. Fisher and Grall.

On appeal from a final agency decision of the Director, Division of Alcoholic Beverage Control.

Andril & Espinosa, attorneys for appellant (Antonio R. Espinosa, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent Division of Alcoholic Beverage Control (Lorinda Lasus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Appellant was the holder of an inactive plenary retail consumption liquor license issued by the Alcoholic Beverage Control Board of Newark. He failed to timely apply for the renewal of the license for the 2003-04 license term by the statutory deadline of June 30, 2003, N.J.S.A. 33:1-26, failed to seek relief within the 30-day grace period set forth in N.J.S.A. 33:1-12.13, and failed to submit, by only a few days, a late application within the 60-day hardship period, i.e., September 28, 2003, contained in N.J.S.A. 33:1-12.18.

Following a hearing, an administrative law judge (ALJ) concluded there was no authority to grant relief because nothing was filed prior to the September 28, 2003 deadline. By written decision, the Director of the Division of Alcoholic Beverage Control (the Director) concluded that the record supported the ALJ's findings and adopted the ALJ's findings as his own. Based upon appellant's delay, the Director concluded that he did not have the statutory authority to grant relief and dismissed the application.

In her written decision, the ALJ found that appellant failed to take the necessary steps to secure the renewal of the license. She relied upon the testimony of Milagros Flores, secretarial assistant to the Newark board, as to the board's customs and practices and concluded that it was "not credible" that appellant had attempted to file an application before October 3, 2003. The record reflects that appellant owed taxes for prior tax years. He claimed that his attempts to file an application prior to September 28th were rebuffed because he was unable to show that the tax lien was cleared. However, the ALJ found Ms. Flores's testimony -- that the existence of a tax lien may delay the approval of an application but does not constitute an obstacle to the filing of an application -- to be credible. Since the ALJ's findings, later adopted by the Director, are supported by evidence in the record, those findings are entitled to our deference. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

We exercise plenary review of an agency's legal conclusions. In examining the Director's conclusions, we observe that appellant does not claim that he complied with the statutory time requirements but instead argues that he "substantially" complied by missing the deadline by only a few days. He relies, in this regard, on Application of Virgo's Inc., 355 N.J. Super. 590 (App. Div. 2002).

Prior to Virgo's, we had steadfastly concluded that the failure of an applicant to file by the September 28th statutory deadline deprives the Director of the jurisdiction to grant relief. See Plata v. Div. of Alcoholic Bev. Control, 360 N.J. Super. 92, 100 (App. Div. 2003); Cavallaro v. Div. of Alcoholic Bev. Control, 351 N.J. Super. 33, 42-43 (App. Div. 2002). A panel of this court in Virgo's held that the Director may grant relief when there has been substantial compliance with the statutory time frames, but concluded, in the particular facts of that case, that the Director properly found an absence of substantial compliance. To the extent that the holding in Virgo's represents an appropriate departure from our earlier precedents -- an issue which we need not consider here -- we nevertheless conclude, based upon our review of appellant's dilatory attempts to seek renewal, that the Director properly denied relief. It is true that neither the ALJ nor the Director analyzed the facts in view of the substantial compliance doctrine adopted in Virgo's, but we are satisfied that the facts as found preclude a determination that appellant substantially complied with N.J.S.A. 33:1-12.18.

Affirmed.

 

These facts are beyond dispute since the renewal application is dated October 3, 2003 and the supporting affidavit was witnessed as having been executed on October 2, 2003.

(continued)

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A-1954-05T1

 

September 21, 2006