NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2702-19
SHE-KEV, INC.,
Petitioner-Appellant,
v.
TOWNSHIP OF ROXBURY,
Respondent-Respondent. __________________________
Submitted January 3, 2022 – Decided January 21, 2022
Before Judges Vernoia and Firko.
On appeal from the New Jersey Department of Law and Public Safety, Division of Alcoholic Beverage Control, Agency Docket No. 134.
Jeffrey S. Mandel, attorney for appellant.
Murphy Schiller & Wilkes, LLP, attorneys for respondent Township of Roxbury (Thomas S. Dolan, on the brief).
PER CURIAM Petitioner She-Kev, Inc. appeals from an October 15, 2019 Final
Conclusion and Order of the Division of Alcohol Beverage Control (the ABC)
dismissing as moot petitioner's verified petition for a special ruling allowing
renewal of petitioner's inactive liquor license and a person-to-person transfer of
the license. 1 Petitioner sought the relief from the ABC based on its claim
respondent Township of Roxbury's (Roxbury) failure to timely act on its
applications for the renewal and transfer constituted de facto denial of the
applications. Petitioner also appeals from the ABC's February 12, 2020 Order
denying its motion for reconsideration. Petitioner argues the orders were
erroneously entered based on insufficient evidence, in violation of its due
process rights, and in reliance on disputed facts that can only be decided in a
plenary hearing. Unpersuaded by petitioner's claims, we affirm.
I.
In June 2018, petitioner filed a verified petition with the ABC claiming
Roxbury had failed to take timely action on its applications for renewal of its
1 The proposed "person-to-person" transfer of the liquor license was between petitioner and "She-Kev, LLC."
2 A-2702-19 liquor license for the "2016-2017 and the 2017-2018 licensing years" 2 and the
person-to-person transfer of the liquor license, asserting the failure constituted
a de facto denial of the applications under N.J.A.C. 13:2-2.10(b), and requesting
a special ruling pursuant to N.J.S.A. 33:1-12.39. The ABC referred the matter
to the Office of Administrative Law (OAL) as a contested case.
Roxbury subsequently filed an answer to the verified petition, asserting:
it did not consider petitioner's renewal application because it was incomplete;
petitioner, the corporate owner of the license, "had been dissolved and was no
longer a going concern"; and the State was unable to provide the tax clearance
letter required for approval of the application because petitioner was a
"dissolved entity." Roxbury's answer further stated that after it resolved a
"myriad of errors" in the renewal application, it scheduled a June 26, 2018
hearing on that application and the application to transfer the license. 3
Roxbury later decided to adjourn the hearing to allow its police
department to complete criminal investigations into petitioner's business and
2 N.J.S.A. 33:1-26 provides that the term of a liquor license runs from July 1 of one year until June 30 of the next, and automatically expires on June 30 each year. 3 It is unnecessary to the resolution of the issues presented on appeal to address the myriad of issues with petitioner's application Roxbury contends resulted in the delay in its consideration of the application on the merits.
3 A-2702-19 because the New Jersey Division of Criminal Justice informed Roxbury it was
in the process of presenting evidence to a grand jury concerning the operation
of petitioner's business and petitioner's owners, Kevin Lipka and Shelly Lipka.
In its answer, Roxbury further asserted that before it could inform
petitioner the hearing was to be adjourned, petitioner filed its verified petition
for a special ruling with the ABC claiming Roxbury's alleged failure to timely
decide the applications for the license renewal and transfer resulted in a de facto
denial of the applications.
Following the filing of Roxbury's answer, petitioner's counsel withdrew,
and one of petitioner's owners, Kevin Lipka (Lipka), thereafter represented
petitioner in the OAL proceedings before the administrative law judges (ALJ)
assigned to the matter, and before the ABC.
In a January 15, 2019 letter to the ABC director, Lipka disputed the claims
made in Roxbury's answer to the verified petition and requested a "review and
immediate[] approv[al]" of the license renewal and transfer applications. On
February 14, 2019, the Deputy Attorney General representing the ABC informed
Lipka the ABC Director would not take any action on petitioner's verified
petition for a special ruling while the petition was pending in the OAL.
4 A-2702-19 The OAL issued a February 27, 2019 notice scheduling a March 5, 2019
telephone conference before ALJ Robert J. Giordano. In its brief on appeal,
petitioner acknowledges Judge Giordano conducted the conference and then a
follow-up call. As result of the initial telephone conference and call, the parties
agreed to a remand of petitioner's applications for the license renewal and
transfer – that were the subject of its verified petition for a special ruling – to
Roxbury for a hearing and its decision on the merits of the applications. 4
On appeal, the parties dispute the precise parameters of the agreement
concerning the remand. However, it is undisputed they agreed to submit
petitioner's applications for the license renewal and transfer to Roxbury for a
decision on the merits of the applications. Indeed, Lipka represented to the ABC
Director that he "agreed to the remand back to Roxbury for [its]
decision . . . because Judge Giordano assured [him] that this route would be
4 The record does not include a transcript of the conference or call, and it appears none was prepared. It also appears the parties' remand agreement was not memorialized in a writing and was not the product of an order entered by the ALJ. In any event, as we explain there is no dispute the parties agreed to a remand to Roxbury for its determination of the merits of petitioner's applications.
5 A-2702-19 quicker than having the OAL decide this matter." 5 Lipka explained he agreed
to the remand to allow Roxbury to decide the merits of petitioner's applications
because "Roxbury would have a decision in [forty-five] days and the OAL could
take as long as six months." According to Lipka, "[e]xpediting any decision was
[his] only reason [for] consenting [to] the remand" to Roxbury.
Lipka obtained the result he sought by agreeing to submit petitioner's
applications to Roxbury for its decision on the merits. On April 15, 2019,
Roxbury held a hearing on petitioner's applications at which Lipka represented
petitioner, presented evidence, and testified on petitioner's behalf. Eight days
later, on April 23, 2019, petitioner obtained Roxbury's decision: it issued a
resolution denying petitioner's applications for the license renewal and transfer,
and detailing the reasons for its denial. 6
5 Lipka's statements concerning his agreement to the remand for Roxbury to decide the merits of petitioner's applications are included in an October 4, 2019 letter he sent to the ABC Director. 6 Roxbury's stated reasons for the denial of the application included: (1) the application was incomplete and did not include an original affidavit and appropriate background investigation with "appropriate fingerprints"; (2) Lipka's testimony at the hearing was not credible because he claimed a completed application was submitted to Roxbury and that was not the case; (3) petitioner She-Kev, Inc. is not a corporation in good standing with the State; (4) during the term of the liquor license's suspension, petitioner received "delivery of alcoholic beverages on and within the licensed premises in violation of the
6 A-2702-19 The OAL did not immediately dismiss the verified petition following the
parties' agreement to a remand to Roxbury for a decision on the merits of the
applications. Although Roxbury heard the matter and issued its resolution
denying the applications on the merits on April 23, 2019, the OAL Deputy Clerk
issued an April 24, 2019 notice scheduling a May 29, 2019 hearing on the
verified petition. On May 14, 2019, counsel for Roxbury advised the OAL that
the "matter was resolved pursuant to a settlement reached through OAL
mediation, whereby [Roxbury] agreed to hold a hearing on April 15, 2019[,] on
the license renewal and related issues." Counsel provided a copy of Roxbury's
resolution denying the applications, and indicated his correspondence, which
was sent via email, was copied to Lipka. On appeal, petitioner does not dispute
Lipka received counsel's email, and the record is bereft of any response from
Lipka disputing counsel's representation concerning the referenced settlement.
conditions imposed by the suspension;" (5) petitioner violated the terms of its license by failing to preserve and maintain required video recordings of the licensed premises, and petitioner failed to provide the recordings to Roxbury when requested; (6) "while not dispositive," Roxbury found it "more likely than not that the licensed premises and the principals of [petitioner] were engaged in nefarious conduct" at the premises that is "contrary to the best interests and welfare" of the township; (7) petitioner failed to comply with the liquor license's limitations and suspension conditions "necessary to ensure that the licensed premise [were] not [to] be used for unlawful purposes"; and (8) petitioner failed to meet its burden of justifying the renewals and transfer of the liquor license.
7 A-2702-19 Two days later, on May 16, 2019, the OAL forwarded an email to the
parties conveying a message from ALJ Gail M. Cookson to Lipka. The email to
Lipka stated, "[y]ou must withdraw the "appeal seeking the special ruling on
Roxbury's denial by default of petitioner's applications to renew and transfer the
license "without prejudice to filing a new appeal." 7 On the same day, Roxbury's
counsel also forwarded the OAL's email to Lipka, stating, "Mr. Lipka, [k]indly
withdraw your appeal per Judge Cookson's e-mail." The record does not include
a response from Lipka or petitioner to the correspondence, and petitioner did not
withdraw its verified petition seeking the special ruling on Roxbury's initial de
facto denial of petitioner's applications. 8
Roxbury contends there was an additional OAL conference subsequent to
the May 16, 2019 emails. Roxbury claims the parties met with ALJ Jeffrey
Gerson, who "again advised [Lipka] that he needed to timely appeal the merits"
7 The email identified the appeal petitioner was directed to withdraw by its OAL docket number, but there is no dispute the referenced appeal was petitioner's verified petition for a special ruling from the ABC on Roxbury's de facto denial of petitioner's license renewal and transfer applications. 8 The record shows the email correspondence was sent to Lipka's two email addresses, both of which he listed throughout the OAL proceedings as his email addresses.
8 A-2702-19 of Roxbury's resolution denying petitioner's applications. 9 There is no
independent evidence supporting Roxbury's contention, but whether there
actually was a conference with Judge Gerson during which he advised Lipka to
withdraw the appeal is not a material issue of fact in this matter; resolution of
the legal issues presented on appeal is not in any manner dependent on it.
On May 31, 2019, ALJ Cookson issued an Initial Decision dismissing
petitioner's verified petition, which sought the special order concerning
Roxbury's initial de facto denials of petitioner's applications. Judge Cookson
found the parties had agreed Roxbury "would convene and consider the
application[s]" to renew and transfer petitioner's liquor license "to give
petitioner consideration on the merits rather than the prior de facto denial." She
further found the parties agreed "the OAL matter would be remanded to Roxbury
for said hearing." Judge Cookson also noted Roxbury held an evidentiary
hearing on the applications on April 15, 2019, and denied the applications in an
April 23, 2019 resolution.
Judge Cookson found the remand "should have resulted in the closing of
the OAL matter which had been transmitted by [the] ABC for adjudication of
9 The parties, ALJ's, and the ABC Director refer to petitioner's June 2018 verified petition as petitioner's "appeal" from Roxbury's de facto denials of the license renewal and transfer applications.
9 A-2702-19 the de facto denial[s] and special request," but "[f]or some reason, it did not."
Judge Cookson explained that after the matter was assigned to her for a plenary
hearing, she reviewed the file and Roxbury's resolution denying the applications,
and she "sought to obtain petitioner's written statement that . . . the appeal was
withdrawn from the OAL without prejudice to filing a new appeal . . . from the
adverse [r]esolution." 10
Judge Cookson sua sponte determined the matter "was properly concluded
with the agreement of petitioner to have the matter remanded to Roxbury for a
municipal hearing on the merits, which had been concluded." She further
explained that petitioner's appeal, as set forth in its verified petition challenging
the de facto denial of the applications, was moot because Roxbury had, with the
agreement of the parties, conducted a hearing on the merits of the applications
and rendered a decision. She noted petitioner refused to withdraw its verified
petition, and it had been advised "there is no prejudice by doing so to its ability
to file a new request for an appeal . . . on the latest formal (non-de facto) action
10 Judge Cookson also mentions the case was later assigned to another ALJ, Jeffrey Gerson, who reviewed the file and came to the same conclusion. Judge Gerson did not issue a decision in this matter, and we disregard any reference to his determination. Although Judge Cookson refers to Judge Gerson's involvement in the case, we read Judge Cookson's decision as reflecting she made her decision based on her review of the matter, independent of Judge Gerson's subsequent review.
10 A-2702-19 of Roxbury." She entered a May 31, 2019 order dismissing the verified petition.
The OAL, however, failed to immediately serve petitioner with Judge Cookson's
initial decision and order.
Prior to the OAL's service of the decision and order, petitioner sent an
August 1, 2019 letter to Judge Giordano. Authored by Lipka, the letter cited
petitioner's verified petition challenging Roxbury's de facto denial of the
applications for the 2016-2017 and 2017-2018 license renewals and transfer, and
explained "the case was remanded back to Roxbury . . . to finally act on the"
applications. Lipka further acknowledged Roxbury conducted the April 15,
2019 hearing on the applications and denied them, "at the conclusion of the
hearing."
In his letter, Lipka declared he was "continuing the appeal to the [OAL
and the ABC] for a [s]pecial [r]uling." Lipka asserted his letter should be
"consider[ed] as a continuation of the [v]erified [p]etition that was filed on June
19, 2018," but in fact he sought amendments to the verified petition alleging
new claims. 11 For the first time, Lipka requested relief from Roxbury's April
23, 2019 resolution denying on the merits petitioner's applications for renewal
11 Indeed, on appeal, petitioner argues the amendments to the verified petition contained in Lipka's August 1, 2019 letter should have been freely granted.
11 A-2702-19 of the 2016-2017 and 2017-2018 licenses and the license transfer, and he also
sought relief from alleged denials of the renewal of the license for the 2018-
2019 and 2019-2020 "liquor licensing years."
It was not until August 27, 2019, that the OAL first sent petitioner Judge
Cookson's May 31, 2019 Initial Decision and order dismissing the June 19, 2018
verified petition. The OAL forwarded the decision and order to Lipka via email
that day, and Lipka responded in an email stating the decision was not properly
served on petitioner because it was entitled to notice via mail. 12 The OAL
mailed Judge Cookson's decision to petitioner at the end of September.
In an October 4, 2019 letter to the ABC Director, Lipka objected to Judge
Cookson's decision, claiming she "was not involved in [petitioner's] hearing,"
and the decision violated his due process rights. However, in the same letter,
Lipka acknowledged he agreed to the remand to obtain a final decision on the
merits of the applications more quickly from Roxbury than he would if the
matter proceeded in the OAL. Lipka also referred to his August 1, 2019 letter
12 In support of his assertion, Lipka relied on N.J.S.A. 33:1-31, which provides that notice of "a suspension or revocation" of a liquor license "may be served upon the licensee personally or by mailing the same by registered mail addressed to him [or her] at the licensed premises." It does not appear the statute has any application here because Judge Cookson's Initial Decision did not constitute a notice of a suspension or revocation of petitioner's liquor license.
12 A-2702-19 to Judge Giordano, and requested that letter be considered when the matter
returned to the OAL.
The Director accepted Lipka's October 4, 2019 letter, along with his
August 1, 2019 correspondence, as exceptions to Judge Cookson's Initial
Decision and order. In the ABC's October 15, 2019 final agency decision, the
Director found that in March 2019, the parties agreed petitioner's appeal "would
be remanded to . . . Roxbury to hold a formal hearing on [p]etitioner's
applications," and Roxbury subsequently "held a full evidentiary hearing on
April 15, 2019" and "made a determination denying the applications." The
Director noted Judge Cookson then sought a written statement from petitioner
withdrawing its case in the OAL without prejudice to filing a new appeal from
Roxbury's denial of the applications on the merits, but "[p]etitioner chose not to
comply with [the] . . . request."
The Director further found petitioner's exceptions to Judge Cookson's
decision were not supported by evidence or any "authorities relied upon," and
the "exceptions did not address why [petitioner] did not timely appeal"
Roxbury's "April 15, 2019 determination to deny renewal of the license." The
Director found petitioner did not "cite any authority supporting [its] claim that
the underlying de facto denial did not become moot after" Roxbury issued its
13 A-2702-19 April 23, 2019 resolution denying petitioner's applications. In the October 15,
2019 Final Conclusion and Order, the Director determined "the matter was
properly dismissed for mootness" and adopted Judge Cookson's Initial Decision.
Petitioner filed a motion for reconsideration, claiming numerous alleged
errors in the Director's final decision. In a February 12, 2020 order, the ABC
denied the reconsideration motion, explaining petitioner failed to sustain its
burden of demonstrating dismissal of the verified petition was based on a
"palpably incorrect or irrational basis" or a failure to consider or appreciate the
evidentiary record. This appeal followed.
II.
Our review of an administrative agency's final determination is limited.
In re Adoption of Amendments, 435 N.J. Super. 571, 582 (App. Div. 2014). We
"afford[ ] a 'strong presumption of reasonableness' to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J.
163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep't of Env't
Prot., 82 N.J. 530, 539 (1980)). We may reverse only if we "conclude that the
decision of the administrative agency is arbitrary, capricious or unreasonable,
or is not supported by substantial credible evidence in the record as a whole."
14 A-2702-19 J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App.
Div. 2000).
Our review of the ABC's determinations is limited to three questions: (1)
whether the decisions are consistent with the agency's governing law and policy;
(2) whether the decisions are supported by substantial evidence in the record;
and (3) whether, in applying the law to the facts, the agency reached decisions
that can be viewed as reasonable. In re Adoption of Amendments, 435 N.J.
Super. at 583. Implicit in the scope of our review is a fourth question: whether
the agency's decision offends the State or Federal Constitution. George Harms
Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). The burden of proof is on
the party challenging the agency's action. Lavezzi, 219 N.J. at 171.
We are not "bound by the agency's interpretation of a statute or its
determination of a strictly legal issue." Ardan v. Bd. of Rev., 231 N.J. 589, 604
(2018) (quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)). We
consider those issues de novo. L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192,
204 (2015). However, "[w]hen resolution of a legal question turns on factual
issues within the special province of an administrative agency, those mixed
questions of law and fact are to be resolved based on the agency's fact finding."
Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001).
15 A-2702-19 Petitioner first argues the ABC erred by adopting Judge Cookson's Initial
Decision because there were issues of fact requiring a hearing that precluded
proper dismissal of the verified petition as moot. Petitioner's argument is
founded on its claim Judge Cookson dismissed the verified petition as moot
based on an erroneous finding petitioner agreed to the dismissal as a condition
of the remand to Roxbury. Petitioner asserts there is a fact issue as to whether
it agreed to dismiss the verified petition as a condition of the remand, and Judge
Cookson, and the ABC, erred by determining there was such an agreement when
its existence was a disputed fact. Petitioner argues that "[h]ad a motion been
filed to enforce [the] alleged agreement . . . , a hearing would be required by the
OAL to resolve the disputed facts."
Petitioner's contention is based on the false premise Judge Cookson and
the ABC dismissed the verified petition based on a finding petitioner agreed to
a dismissal as a condition of its assent to the remand. That is not the case.
Although Roxbury argued petitioner agreed to dismiss the verified petition as a
condition of the remand, neither Judge Cookson nor the ABC accepted the claim,
16 A-2702-19 found there was such an agreement, or determined the purported agreement
required dismissal of the appeal. 13
Judge Cookson and the ABC found the appeal embodied in the verified
petition was moot based on a determination wholly unrelated to the existence of
petitioner's alleged agreement to a dismissal as a condition of the remand. They
determined the appeal was moot following the remand and Roxbury's denial of
the applications after a hearing on the merits because the then-pending verified
petition challenged only the de facto denial of the applications.
We agree that if the ABC's decision dismissing the appeal was based on
its enforcement of an agreement by petitioner to dismiss the verified petition as
a condition of the remand, a hearing to resolve issues of fact would be required.
The record includes no competent evidence of such an agreement, and petitioner
disputes its existence. 14 But, despite Roxbury's claim there was such an
agreement, the ABC's final decision is not based on a finding the agreement
13 As noted, Judge Cookson stated that following Roxbury's decision on the merits following its hearing on the merits of the applications, the OAL proceeding should have been "closed," but "[f]or some reason, it did not." She did not cite to any purported agreement by petitioner to dismiss the appeal or rely on any such agreement to support her decision to dismiss the appeal as moot. 14 We offer no opinion as to whether there was such an agreement. We note only there was no competent evidence presented establishing such an agreement.
17 A-2702-19 existed, and the ABC did not dismiss the verified petition based on the purported
agreement. Thus, petitioner's claim the ABC erred by failing to conduct a
plenary hearing to determine if petitioner agreed to dismiss the appeal as a
condition of the remand is unavailing; resolution of the factual dispute over the
existence of the agreement is not necessary because the ABC did not rely on the
purported agreement to support its dismissal of the verified petition. 15
The ABC's dismissal based on mootness is founded on undisputed facts.
Petitioner's verified petition challenged Roxbury's de facto denial of the
applications. That is, the appeal challenged Roxbury's failure to timely act on
the applications in 2018 that constituted de facto denials under N.J.A.C. 13:2-
2.10. Following petitioner's appeal of those denials in its verified petition, and
the ABC's referral of the matter to the OAL, the parties' agreed to remand the
applications to Roxbury for a full hearing on the merits. In accordance with
15 For the same reasons, we reject petitioner's claim the ABC's final decision enforced a "settlement reached through OAL mediation." Petitioner's argument is based on a contention made by Roxbury, and not any findings made by either Judge Cookson or the ABC. Neither Judge Cookson nor the ABC determined there was a settlement requiring dismissal of the appeal "reached through OAL mediation," and, again, the dismissal of petitioner's appeal was not based on a finding there was such an agreement. To the contrary, the appeal was dismissed based on a determination that following Roxbury's consideration and denial of the applications on the merits, petitioner's challenge to Roxbury's de facto denials was moot.
18 A-2702-19 parties' agreement, Roxbury conducted the hearing and issued the April 23, 2019
resolution. It was only after Roxbury decided the applications on the merits and
issued its resolution that Judge Cookson sought petitioner's withdrawal of the
verified petition, and, when petitioner refused, issued her sua sponte Initial
Decision finding the appeal from the de facto denials moot.
"Mootness is a threshold justiciability determination rooted in the notion
that judicial power is to be exercised only when a party is immediately
threatened with harm." Stop & Shop Supermarket Co. v. Cnty. of Bergen, 450
N.J. Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas Hosp.,
415 N.J. Super. 301, 311 (App. Div. 2010)). Further, "[i]t is firmly established
that controversies which have become moot or academic prior to judicial
resolution ordinarily will be dismissed." N.J. Div. of Youth & Fam. Servs. v.
W.F., 434 N.J. Super. 288, 297 (App. Div. 2014) (quoting Cinque v. N.J. Dep't
of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)).
A matter becomes moot when the sought-after relief "can have no practical
effect on the existing controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015)
(quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22
(App. Div. 2011)). Generally, New Jersey courts do not decide a case where
"the issue is hypothetical, a judgment cannot grant effective relief, or the parties
19 A-2702-19 do not have concrete adversity of interest." Cinque, 261 N.J. Super. at 243
(quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)). However,
cases are not moot if such a decision renders one of the parties resultantly subject
to "collateral [legal] consequences" as a result of the dismissal. Id. at 244. This
court's review of a decision to dismiss a matter on the grounds of mootness is
de novo. Stop & Shop, 450 N.J. Super. at 290.
Petitioner's challenge to the ABC's determination the appeal was moot
ignores that petitioner's agreement to remand the applications to Roxbury for a
full hearing on the merits, and Roxbury's subsequent hearing on the merits and
April 23, 2019 resolution denying the applications, rendered the de facto denials
of the applications a nullity. It is incongruous to conclude petitioner could
properly challenge the de facto denials following its agreement to a remand for
a full hearing and decision on the merits of its applications, its participation in
the hearing, and Roxbury's decision on the merits. Once the parties agreed to
the remand, the hearing was held, and Roxbury issued its decision, the ABC
could not properly provide any relief on petitioner's verified petition challenging
the prior de facto denials of its applications. That is because petitioner's
challenge to the de facto denials were effectively abandoned by the agreement
20 A-2702-19 to the remand hearing and Roxbury's subsequent hearing and decision on the
merits.
As Lipka explained in his October 4, 2019 letter to the Director, petitioner
agreed to remand for the purpose of obtaining a more expeditious decision from
Roxbury on the merits of its applications rather than proceed with the longer
process before the OAL. In other words, petitioner opted for a hearing and
decision on the merits, and not a hearing on its appeal from the de facto denials.
And, once the conditions of petitioner's agreement to the remand option were
fulfilled, with a hearing and decision on the merits, the OAL could not offer
relief to petitioner on the option it rejected, a challenge it had presented in its
verified petition to the de facto denials. As Judge Cookson and the ABC
correctly determined, because relief from the de facto denials that were the
subject of verified petition could no longer be provided, petitioner's initial
appeal was moot. Judge Cookson's May 31, 2019 decision correctly dismissed
the appeal as such.
Petitioner offers no arguments of merit to the contrary. Petitioner claims
that "the predicate facts" used to make the mootness determination "are
disputed," but fails to identify any disputed facts pertinent to the mootness
determination. Petitioner argues that even "[a]ccepting that [it] agreed to a
21 A-2702-19 remand, the issue of whether [it] agreed to then dismiss the case is disputed."
Again, this claim ignores Lipka's unequivocal admission petitioner agreed to the
remand for Roxbury to consider and decide the merits of case for the express
purpose of more promptly obtaining a decision on the merits rather than a
determination in the OAL on the de facto denials. In addition, and as noted,
Judge Cookson's Initial Decision and the ABC's final determination that the
claims in the verified petition are moot were not based in any manner on a
finding petitioner agreed to the dismiss the appeal as a condition of the remand.
Petitioner also claims the appeal embodied in the verified petition was not
moot because, at the time the ABC issued its October 15, 2019 final decision
adopting Judge Cookson's May 31, 2019 Initial Decision, petitioner had filed its
August 1, 2019 letter stating the correspondence should be considered as a
continuation of its appeal to include a challenge to Roxbury's April 23, 2019
resolution. Of course, petitioner did not have any knowledge of Judge
Cookson's Initial Decision at the time it sent its August 1, 2019 letter because
the OAL had not served the decision by that time. And, when the August 1,
2019 letter was sent, the ABC had not issued its final decision dismissing the
appeal.
22 A-2702-19 In any event, as the ABC explained in its October 15, 2019 final agency
decision, it considered Lipka's August 1, 2019 and October 4, 2019 letters
following petitioner's receipt of Judge Cookson's decision, as exceptions to the
decision. And, in its final agency decision, the ABC directly addressed
petitioner's reliance on its August 1, 2019 letter as a request to add to its verified
petition its challenge to Roxbury's April 23, 2019 resolution. The ABC properly
rejected the request.
The ABC found that under N.J.A.C. 13:2-17.3, "[p]etitioner had [thirty]
days from April 25, 2019, when [it] was provided [Roxbury's] [r]esolution . . . to
withdraw the appeal from OAL and submit a new appeal with the ABC
challenging" the resolution denying the renewal and transfer applications on the
merits. In pertinent part, N.J.A.C. 13:2-17.3 provides that appeals from liquor
"licensee or applicant for a license must be taken within [thirty] days
after . . . service . . . of a written notice by the municipal issuing authority of the
action taken against the licensee or the applicant." The ABC determined
petitioner's attempt, in Lipka's August 1, 2019 letter, to appeal from Roxbury's
April 25, 2019 resolution, by declaring its challenge to the resolution should be
considered part of the initial appeal, was "out of time" under N.J.A.C. 13.2-17.3.
23 A-2702-19 The ABC further noted petitioner "did not address why [it] did not timely appeal
from" Roxbury's "April . . . 2019 determination to deny renewal of the license."
On appeal, petitioner does dispute ABC's finding petitioner offered no
reason it failed to timely appeal form Roxbury's April 23, 2019 resolution.
Petitioner also does not argue the ABC erred by finding the August 1, 2019 letter
constituted an untimely attempt to appeal from the resolution. We consider
those arguments abandoned, and therefore discern no basis to reject the ABC's
determination. See Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub.
Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (finding claims not
addressed in merits brief are deemed abandoned); see also Pressler and Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2022) ("[i]t is, of course, clear that
an issue not briefed is deemed waived").
Petitioner clearly understood that any challenge to the April 23, 2019
resolution was not encompassed by its verified petition, which petitioner
believed was still pending on August 1, 2019. It sought to sought add its appeal
of the April 23, 2019 resolution to its verified petition, and would not have done
so unless in understood the challenge to the resolution was not encompassed by
the then-pending verified petition.
24 A-2702-19 Petitioner's August 1, 2019 attempt to appeal from the April resolution
occurred long after the deadline in N.J.A.C. 13.2-17.3, and petitioner does not
argue otherwise. See Drinker Biddle & Reath, 421 N.J. Super. at 496 n.5.
Petitioner also offered no reasons to the ABC, and points to none on appeal, for
its failure to timely seek review of Roxbury's resolution denying the applications
on the merits. In sum, we discern no basis to conclude the ABC erred by
determining petitioner's August 1, 2019 putative attempt to appeal from the
April 23, 2019 resolution was untimely.
Petitioner argues only that amendments to pleadings should be liberally
granted, but it ignores the ABC did not reject a request to amend a pleading; the
ABC determined the putative appeal asserted in the August 1, 2019 letter was
untimely under N.J.A.C. 13.2-17.3. As noted, petitioner does not offer any
argument that determination was in error. See ibid.
Petitioner also claims the ABC erred by denying its motion for
reconsideration. We find the argument is without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(D), and affirm the ABC's denial
of the motion substantially for the reasons set forth in its February 12, 2020
order. We note only that based on our review of the record, petitioner's motion
failed to establish the ABC's October 15, 2019 decision was based on a palpably
25 A-2702-19 incorrect irrational basis, or alternatively the ABC did not consider or failed to
consider or appreciate the significance of probative, competent evidence. See
generally Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015) (explaining standard for granting a reconsideration
motion under the New Jersey Court Rules). 16
To the extent we have not expressly addressed any of petitioner's other
arguments, we find they are without sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(1)(D).
Affirmed.
16 The ABC applied the standard for reconsideration motions under the New Jersey Court Rules in accordance with N.J.A.C. 1.1-1.3(a) which provides for the use of court rules in administrative actions. See also Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:1-1 (stating "where no specific procedure is provided, administrative agencies generally follow the spirit and intent of the court rules").
26 A-2702-19