Opinion
DOCKET NO. A-0248-14T1
02-09-2016
NAICKEN, INC., Appellant, v. GOVERNING BODY OF THE CITY OF PLAINFIELD, Respondent.
Aiello, Harris, Marth, Tunnero, Pastor & Schiffman, P.C., attorneys for appellant (Christopher G. Aiello, of counsel; Michael Fernandes, on the brief). DeCotiis, FitzPatrick & Cole, LLP, attorneys for respondent Governing Body of the City of Plainfield (David L. Minchello, of counsel; Victoria A. Flynn, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Alcoholic Beverage Control (Alyssa Pearlman Wolfe, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from Division of Alcoholic Beverage Control, Department of Law and Public Safety, Appeal No. 7773. Aiello, Harris, Marth, Tunnero, Pastor & Schiffman, P.C., attorneys for appellant (Christopher G. Aiello, of counsel; Michael Fernandes, on the brief). DeCotiis, FitzPatrick & Cole, LLP, attorneys for respondent Governing Body of the City of Plainfield (David L. Minchello, of counsel; Victoria A. Flynn, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Division of Alcoholic Beverage Control (Alyssa Pearlman Wolfe, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Naicken, Inc., (Naicken) appeals from the Director of Division of Alcoholic Beverage Control's final administrative decision, adopting the findings of fact and conclusions of law of an Administrative Law Judge, upholding the Governing Body of the City of Plainfield's denial of Naicken's renewal of a plenary retail distribution license (license). We affirm.
Naicken, who has held the license since 1980, trades as Clinton's Deli and Grocery/Arlington Liquors and operates its store on West Front Street in Plainfield. On August 19, 2013, Plainfield's municipal council adopted a resolution denying Naicken's application to renew the license for the 2013-2014 license term. Naicken filed an appeal with the Division of Alcoholic Beverage Control (ABC), as well as a motion for stay.
The ABC Director issued an order: requiring Plainfield's governing body to show cause why Naicken's license should not be extended for the 2013-2014 license period pending determination of the appeal; and extending the license through the return date of the order to show cause. Thereafter, in a series of orders, the ABC Director extended the term of the license pending the outcome of an administrative hearing, subject to special conditions, and transmitted the matter to the Office of Administrative Law (OAL) for a hearing as a contested case. The OAL hearing took place before Administrative Law Judge Kimberly A. Moss on April 15, 2014. Judge Moss issued her decision on June 12, 2014, affirming Plainfield's decision to deny Naicken's application to renew the license.
The parties filed no exceptions to Judge Moss's initial decision, but Naicken filed an administrative appeal. The ABC Director adopted the ALJ's opinion in its entirety and issued a final written decision on July 31, 2014. Naicken filed a motion for stay on September 23, 2014; the ABC Director denied the motion on November 6, 2014.
We derive the following facts from the OAL hearing record. Naicken operates its business on West Front Street in Plainfield on a corner lot. The lot is approximately two acres with parking for approximately thirty vehicles. The sole building on the lot contains three sections: a liquor store, a chicken restaurant, and a deli. Parts of the building are within 1000 feet of a school and 500 feet of a public park. The deli section is separated from the liquor section by a row of refrigerators that prevent visibility from one section to another. The deli section and liquor section each have separate cash registers.
From 1980 through 2010, the license was renewed without incident. When Naicken applied to renew the license for the 2011-2012 term, Plainfield's municipal council granted the renewal with three special conditions, which required that Naicken: (1) provide two armed licensed security persons from dusk until closing at 2:00 a.m. "to secure the interior and exterior of the licensed premises and its adjacent property"; (2) install between six and ten security cameras "to monitor the interior and exterior of the premises, including its adjacent lot"; and (3) "take appropriate steps to collaborate with and immediately report to the Plainfield Police Division any illegal and/or suspicious activity upon its premises."
According to the Plainfield detective who testified at the OAL hearing, other than the housing projects, no area in the City was a greater hot spot for criminal activity. The detective also testified that from July 2012 to August 2013, police received 136 calls for service at the location; of these, nineteen generated police reports. Of the nineteen, eleven involved narcotics; one involved firearms, one a shooting; one involved an assault; one was an ABC violation; one involved a person giving a false name; one "for assisting the [D]ivision of [T]axation"; and one was a Drug Offender Restraining Order (DORA) violation. The detective had personally observed loitering, solicitation, and drug transactions at or near Naicken's building.
The ABC violation occurred on August 8, 2012, when Vadrajan Naicken, Naicken's owner, violated N.J.S.A. 2C:33-17(a) by selling alcohol to an individual under the age of twenty-one. Vadrajan Naicken did not check the identification of an individual who was purchasing beer. The individual was a Plainfield Police Officer. Vadrajan Naicken pled guilty to the offense in Plainfield Municipal Court.
Two narcotics offenses involved Naicken employee Williamah Naicken, who worked in the deli. Following a stroke in 2010, she began taking medication for numbness in her knees and other pain. On February 22, 2013, she was arrested at the deli for possession with intent to distribute a controlled dangerous substance (CDS) in violation of N.J.A.C. 13:2-23.5(b), which prohibits a licensee to permit or suffer unlawful possession of CDS on the premises. According to Williamah, she began to sell her prescription pain medication in order to purchase additional pain medication for herself.
A DORA was entered, prohibiting Williamah from returning to the store. Allegedly, Williamah did not understand the DORA and her criminal attorney contacted the Plainfield Police Department to see whether the court had actually entered a DORA. According to Williamah's attorney's certification, "the Plainfield Police could not find whether there was a DORA order in existence, so I was under the belief that she could return to work and I instructed her that she could."
On February 28, 2013, while back at Naicken, Williamah was arrested for violation of the DORA. A search of her person led to discovery of a single prescription pill. She was once again charged with possession of CDS. Williamah's attorney contacted the Union County Prosecutor's Office to consensually remove the DORA; the Prosecutor's Office agreed. The DORA was vacated March 6, 2013. Also on that date, the charge relating to violation of the DORA and the second CDS charge were dismissed. On May 2, 2013, Williamah pled guilty to possession of CDS with intent to distribute.
Vadrajan Naicken testified that before selling alcohol to a minor, he had never received any ABC violations. He claimed the parking lot is well-lit and he has called the police many times in the thirty-one years he operated Naicken. However, he later testified he only calls the police if there is "big trouble."
Terry Hundar, Vadrajan Naicken's grandson and Naicken employee, testified he has worked at Naicken since 2007 and has installed eleven security cameras because of the conditions placed upon Naicken by Plainfield's municipal council. Hundar admitted he had been convicted for selling loose cigarettes at Naicken. Hundar claimed he had attempted to contact the police on several occasions, leaving voicemails; however, on cross-examination, when confronted with the fact that the police station does not have a voicemail system, Hundar changed his testimony, stating he left messages with officers. Finally, Hundar testified that unarmed guards were employed by the liquor store Thursday through Saturday from 4:00 p.m. to closing.
Judge Moss found Vadrajan Naicken and Hundar to not be credible. She found Hundar had contradicted himself regarding the voicemail messages. She found Vadrajan Naicken had contradicted himself by initially testifying he regularly contacted the police, but later saying he only called when there was a major problem. Judge Moss found the detective to be credible.
Judge Moss determined Vadrajan Naicken violated the 2011 special conditions by only calling the police if there was "big trouble," and that Plainfield Police had repeatedly arrested individuals for selling CDS, using Naicken "to make contact with potential CDS buyers [by] . . . meet[ing] the buyers[,] . . . exit[ing] the store, walk[ing] down the street and mak[ing] the drug transaction." Judge Moss also found Naicken had violated all three conditions placed upon it by Plainfield's municipal council. Further, she found, based on stipulated facts, that Williamah had possessed CDS with intent to distribute, and Naicken was responsible for her actions. Based on all of these considerations, she concluded that Naicken "did not establish[] by a preponderance of the evidence that Plainfield abused its discretion when it denied [Naicken]'s liquor license renewal request."
On administrative appeal, in his July 31, 2014 final decision, the ABC Director wrote: "[n]either party filed exceptions to the [ALJ decision], therefore, I will accept the Findings of Fact and Conclusions of Law made by ALJ Moss." The ABC Director found "that Plainfield's determination to deny the renewal of Naicken's liquor license was not arbitrary or an abuse of discretion, and that this determination has reasonable support in the record." The ABC Director then adopted Judge Moss' decision in its entirety.
Naicken filed a motion for a stay of the July 31 order pending the outcome of this appeal. Because neither party had filed exceptions to the ALJ's decision, the ABC Director deemed himself bound by the record created in the OAL proceedings. As such, he "reject[ed] any attempt by counsel for Naicken to use this motion to amplify or supplement the record with Exceptions that were not previously filed." The ABC Director "reviewed the record before [him] to determine whether Plainfield was arbitrary in the exercise of its discretion not to renew Naicken's liquor license, and whether there was reasonable support in the record to sustain Plainfield's determination."
The ABC Director explained what facts Naicken attempted to introduce that were not filed as exceptions to the ALJ's decision:
Naicken is arguing that there was confusion by the drafters of the stipulated facts concerning the possession of CDS by Naicken's employee, that the Director failed to take into account mitigating factors, such as the fact that Naicken has held his liquor license for thirty-three years, and that Naicken had no knowledge that one of his employees was distributing CDS within the licensed premises.The ABC Director found that using motion practice in this manner was inappropriate; thus, he denied the stay.
On appeal, Naicken contends the Director "manifestly erred or otherwise abused its discretion" by: violating express or implied legislative policies; making factual determinations unsupported by the record; and reaching "a conclusion that could not have been made based on the record." We have considered Naicken's arguments in light of the record and controlling law, and reject them substantially for the reasons given by ALJ Moss and the ABC Director. The ABC Director's decision is supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). Naicken's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION