For the prosecutor, Irving I. Jacobs.
For the respondent, Walter D. Van Riper and Samuel B. Helfand.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The writ of certiorari brings up a determination by the Commissioner of Alcoholic Beverage Control that prosecutor was ineligible, under the provisions of title 33, chapter 1, Revised Statutes of 1937 (the Alcoholic Beverage Control Act), to hold a liquor license or to be employed by any liquor licensee. Cf. Kravis v. Driscoll, 134 N.J.L. 453.
The action by the Commissioner was more than the expression of an opinion. It was, we find, a ruling with the effect imputed to it above, following and in accord with an opinion or decision filed in the department. Prosecutor does not question the jurisdiction of the Commissioner to act in the premises. He contends that the ruling is not properly supported by proofs and that a plea of nolo contendere is not a conviction within the meaning of the statute.
We think that the proceedings in certiorari are proper under the circumstances.
The substantial reason for the ruling appears clearly and authentically in the record, by admissions and otherwise. It is that the prosecutor had entered a plea of "nolo contendere" to an indictment in the Atlantic County Oyer and Terminer for aiding and abetting in lewd entertainment at the resort known as the Paddock Club in Atlantic City which prosecutor then operated under a plenary retail consumption license, a plea which the Commissioner interpreted as a conviction of a crime involving moral turpitude. By R.S. 33:1-25 and 26 it is provided that no liquor license shall be issued to any person who has been convicted of a
crime involving moral turpitude and that no person who would fail to qualify as a licensee shall be knowingly employed by or connected in any business capacity whatsoever with the licensee. Prosecutor's license was temporarily suspended and was later transferred to his mother, and the inquiry instituted by the Commissioner was upon the hypothesis that prosecutor was still connected by employment or otherwise with the management.
The acts of lewdness charged against prosecutor were detailed in the indictment. Sufficient now to say that the crime so described was, by our finding, one of moral turpitude. The question for decision is whether the prosecutor's pleading thereto constituted a "conviction" within the meaning of the statute. Prosecutor rests his argument for the negative of the proposition upon Schireson v. State Board of Medical Examiners, 130 N.J.L. 570. That decision, if squarely in point is, of course, controlling upon this court. But there are, we think, substantial distinctions between that case and this.
The Schireson decision went upon the theory (page 575) that the license of a physician to practice medicine is a "right, a property right" and worked to the conclusion that "the record of the judgment and commitment of the appellant, following his plea of nolo contendere to the charges of the indictment, do not amount to a conviction of the designated crime within the contemplation of the statute," supra (viz., R.S. 45:9-1, et seq. -- the statute concerning medicine and surgery) (italics inserted). We believe that it was the conception of the physician's license as a "property right" which caused the court to regard the revocation of the license as in the nature of a civil suit. But a liquor license is not a property right; it is a mere privilege. Meehan v. Excise Commissioners, 73 N.J.L. 382; affirmed, 75 Id. 557; Zicherman v. Driscoll, 133 Id. 586; Drozdowski v. Sayreville, 133 ...