DIVISION OF ALCOHOLIC BEVERAGE CONTROL v. MILL STREET HOTEL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3428-05T53428-05T5

DIVISION OF ALCOHOLIC

BEVERAGE CONTROL,

Plaintiff-Respondent,

v.

MILL STREET HOTEL, INC.,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 6, 2006 - Decided January 4, 2007

Before Judges Lefelt and Parrillo.

On appeal from a Final Decision of The

New Jersey Division of Alcoholic

Beverage Control, Docket No. S-02-26305.

John P. Yetman, Jr., attorney for

appellant.

Stuart Rabner, Attorney General, attorney

for respondent (Lorinda Lasus, Deputy

Attorney General, of counsel; Andrew R.

Sapolnick, Deputy Attorney General, on

the brief).

PER CURIAM

The Director of the Division of Alcoholic Beverage Control issued a final decision, which adopted Administrative Law Judge (ALJ) Ana Viscomi's initial decision, imposing a fifteen-day license suspension on defendant licensee, Mill Street Hotel, Inc., for selling an alcoholic beverage to an intoxicated person named Michael Black. N.J.A.C. 13:2-23.1(b). Defendant appeals and argues that "the State failed utterly to meet its standard of proof" and that the decisions of the ALJ and Director were "arbitrary, capricious and not supported by the evidence."

The facts are quite simple. A Mt. Holly police officer observed Black "walking back and forth on the porch area of the entrance to Mill Street Tavern," which is operated by defendant. Black was intoxicated and disorderly, ranting and raving, spitting in the street, and hollering at people. He was carrying a brown bag containing two cans of unopened beer. The officer asked Black where he got the beer, and Black said "[f]rom the bar, fool." When the officer entered the bar, the manager stated that "Black is always drunk and that if I don't sell him it, he gets somebody else to sell it. . . ." Based on these facts, the officer charged defendant with the offense that led to this appeal.

We disagree with defendant that these facts are insufficient to support the ALJ's finding that a violation of N.J.A.C. 13:2-23.1(b) occurred. To establish a violation, the Division must prove only that the licensee sold, served, or delivered an alcoholic beverage to a person who is actually or apparently intoxicated. Ibid.

The ALJ accepted as credible the officer's testimony, and rejected the inferences defendant hoped would be drawn from the testimony of its five witnesses. The ALJ simply found that defendant's evidence "lacked credibility." The Director as well as this court, must defer to the ALJ's credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999); In re Taylor, 158 N.J. 644, 656 (1999); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).

Even though Black's statement to the officer was hearsay, it was admissible in the administrative proceeding. N.J.A.C. 1:1-15.5(a). Moreover, the manager's statement to the officer regarding the sale of alcohol to Black was admissible as either a statement made by an agent or as a statement against interest. N.J.R.E. 803(b)(4); N.J.R.E. 803(c)(25). Accordingly, it constitutes a "residuum" of legally competent evidence sufficient to corroborate Black's statement. Weston v. State, 60 N.J. 36, 51 (1972).

In our view, the officer's testimony and the reasonable inferences that can be drawn from it provide sufficient, credible evidence supporting the final decision. Consequently, we are obliged to affirm. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Affirmed.

 

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A-3428-05T5

January 4, 2007