Opinion
DOCKET NO. A-2254-14T2
05-12-2016
442-444 BROADWAY ENTERTAINMENT, LLC, t/a QUILVIO'S TAVERN; ELEDEN CORP., t/a EL EDEN BAR & LIQUORS; YHOMAX, INC., t/a J&G LOUNGE LIQUORS; AMIGOS BEVERAGES, LLC, t/a BOULEVARD LIQUORS; LOS ANGELES LIQUORS #2, INC.; LUCKY LIQUORS, LLC; 10TH AVENUE LIQUOR & FOOD MART, INC.; GONZALEZ LIQUORS, LLC; AGUASVIVAS, LLC; and TORRES WILSON, t/a J&B LIQUORS; Petitioners-Appellants, v. THE CITY OF PATERSON, Respondent-Respondent.
Jose Rodriquez, attorney for appellants. Domenick Stampone, Corporation Counsel, attorney for respondent the City of Paterson (Ben-David Seligman, Second Assistant Corporation Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent State of New Jersey (Lisa R. Ellison Barata, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from the New Jersey Division of Alcoholic Beverage Control. Jose Rodriquez, attorney for appellants. Domenick Stampone, Corporation Counsel, attorney for respondent the City of Paterson (Ben-David Seligman, Second Assistant Corporation Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent State of New Jersey (Lisa R. Ellison Barata, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Petitioners, holders of liquor licenses in Paterson, appeal from what they contend is a final order of the Director of the Division of Alcoholic Beverage Control denying their application for a stay pending appeal of their challenge to a municipal ordinance regulating closing times. Because we conclude the order is interlocutory, we dismiss the appeal without prejudice and remand the matter to the Office of Administrative Law (OAL) where the case remains pending on the inactive list.
Because we do not address the merits, we provide only so much of the background of this matter as is necessary to give context to our conclusion that there is, as yet, no final agency decision for our review.
In August 2014, the City of Paterson adopted Ordinance No. 14-045 which established a business curfew of 12:00 a.m. for certain specified geographic areas in Paterson. The ordinance contains two sections. The first imposes the business curfew in the specified areas on all "places of commerce" as defined in the ordinance. The second section, the one challenged by petitioners, imposes the 12:00 a.m. closing time on alcoholic beverage licensees in the specified areas.
Petitioners filed a notice and petition of appeal with the Division contending, in essence, that because the ordinance forces licensees in the affected areas to close earlier than those in other parts of the city, it is preempted by Title 33 and invalid. They also sought a stay of enforcement of the ordinance pending appeal. The Director denied petitioners' stay application in an order of December 5, 2014 and referred the matter to the OAL for a hearing as a contested case.
Petitioners applied for permission to file an emergent motion for stay in this court on December 11, 2014, which we denied. Petitioners thereafter moved for leave to appeal, contending the Director had "already determined that the central issue of this appeal is 'moot'" and "[a]s a consequence, there is no justiciable issue to be submitted to the [OAL]." While that motion was under consideration, the parties asked the OAL to place the case on the inactive list pending resolution of petitioners' motion for leave to appeal, which was done. We thereafter denied the motion for leave to appeal.
In our view, that denial should have resulted in reactivation of the matter in OAL. Instead, petitioners filed a notice of appeal from the Director's December 5, 2014 order denying a stay, again contending that the order was final, notwithstanding the Director's transfer of the matter to the OAL for a hearing as a contested case and our denial of their motion for leave to appeal brought on the same basis.
It is beyond dispute that the only issue before the Director in December 2014 was petitioners' request for a stay. It is true that in denying that request, the Director noted "preliminarily" that the first section of the ordinance regulates commercial hours of operation for all businesses in certain designated geographic zones, whereas the second section amends an existing chapter of the Paterson municipal code regulating the hours of operation for all alcoholic beverage licensees in the city. Noting that his jurisdiction to review municipal ordinances did not extend to ordinances of general application, the Director thus concluded "that regardless of how I rule on Section II, (either preliminarily of ultimately) Section I will remain in effect, rendering any ruling on Section II moot."
Although a detailed discussion of the doctrine of mootness is beyond the scope of this opinion, it certainly appears at this preliminary stage of the proceedings that there are remedies available to petitioners that the Director may impose which could have a practical effect on this case. Accordingly, we do not, at this juncture, conclude that further proceedings before the Division are moot by virtue of the general application of the first section of the ordinance. See Redd v. Bowman, 223 N.J. 87, 104 (2015) (noting a matter is moot when the decision sought, when rendered, can have no practical effect on the existing controversy).
It is that single sentence on which petitioners rely to argue that the "Director's determination in this matter should be treated as the Agency's Final Decision." We decline to do so.
Despite the Director's preliminary observations about the specific and general application of the ordinance challenged, he went on to review the stay application on the merits under the familiar Crowe v. De Gioia framework. The Director found petitioners had "not presented evidence that demonstrates that an ordinance of this type is contrary to law or invalid," concluding: "Without analyzing in detail or pre-judging the merits of the Appeal, which have not been fully heard or argued before me, and still must be tried before an Administrative Law Judge, [petitioners have] not, at this early juncture, persuaded me of [their] likelihood of success on the merits."
90 N.J. 126, 132-34 (1982).
It is obvious to us upon review of the entire decision, that despite the Director's preliminary observations about the interplay of the two sections of the ordinance and the limits of his jurisdiction, he did not render a final decision on the merits of petitioners' ordinance challenge. The Director did no more than deny the application for stay and transfer the matter to the OAL for a hearing as a contested case. See N.J.A.C. 13:2-17.5. Such an order is clearly interlocutory and may not be appealed without leave, which we have already denied. See R. 2:2-3. Accordingly, we dismiss the appeal without prejudice and remand the matter to the OAL for a hearing in the ordinary course. Petitioners are, of course, free to submit the briefs they have filed with us, in which they have argued the merits as well as mootness, to the OAL in support of their challenge to the ordinance.
We note that this case underwent finality review in the Appellate Clerk's Office and that the matter was allowed to proceed after receipt of a letter from petitioners' counsel raising essentially the same points we have rejected here. Nevertheless, the City continued to urge that the matter had to be addressed in the OAL and the agency before it could be heard in this court, and both parties acknowledged that whether the case was properly before us continued to be the central issue here by vigorously contesting the point in their briefs to this court. After consideration of both parties' arguments on the issue, a fuller review of the Director's stay decision and the procedural posture of the case, including its continued pendency in the OAL, albeit on the inactive list, the interlocutory nature of the application has become inescapable. Because it is now unavoidably apparent that the order appealed from is not final and there has yet to be a decision on the merits by the agency for our review, the case must be remanded to the OAL. --------
Appeal dismissed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION