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Severini v. State

Decided: January 2, 1964.

ARTHUR J. SEVERINI, DEFENDANT-APPELLANT,
v.
THE STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF ALCOHOLIC BEVERAGE CONTROL, PLAINTIFF-RESPONDENT



Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

This is an appeal from a ruling by the Acting Director of the Division of Alcoholic Beverage Control (Director).

The matter has the following background. Arthur J. Severini, appellant herein, became employed as a truck driver by Red Star Express Lines (Red Star), the holder of a New Jersey liquor transportation license. Under regulations of the Alcoholic Beverage Control Division, and subject to certain enumerated exceptions, every employee of a liquor licensee is required to execute a specified form of questionnaire. If answers to the questionnaire disclose conviction of a crime, such questionnaire must be filed with the Division. In December 1962 Severini filled out a questionnaire which disclosed that on June 25, 1962 he had been convicted of a crime in New York City. Upon the filing of such questionnaire with the Division, inquiry was made of the New York City Police Department and it was ascertained that appellant had been convicted of criminally concealing and withholding stolen and wrongfully acquired property.

The Director then wrote to Severini's employer Red Star and advised it that Severini had been convicted of a crime which "may involve moral turpitude." The Director pointed out that under provision of the Alcoholic Beverage Control Law, N.J.S.A. 33:1-25 and 26, a person convicted of a crime involving moral turpitude was disqualified from employment by a liquor licensee, and that employment of such a person was ground for suspension or revocation of the employer's liquor license. Red Star was directed that "you may

not continue to employ" Severini unless Severini filed with the Division a petition to determine his eligibility.

Severini requested a hearing before the Division as to his eligibility for employment. A hearing was had and Severini appeared and testified on his own behalf. Thereafter the Director rendered a decision that in his opinion the crime of which Severini had been convicted involved the element of moral turpitude and that "in the opinion of the Director, he is not presently eligible * * * to be employed by * * * the holder of any such license within the meaning of R.S. 33:1-25, 26." Severini and his employer were notified of the ruling. It is from such ruling that Severini appeals.

Preliminarily, the Division argues that the Director's ruling was not a final decision and therefore not appealable. R.R. 4:88-8(a). While the ruling is in the form of an advisory opinion by the Director, the effect of such opinion is to declare appellant ineligible to continue in the employment of Red Star (or to be employed by any liquor licensee). Appellant's standing to appeal such ruling is clear. Kravis v. Hock , 136 N.J.L. 161, 164 (E. & A. 1947).

On the merits of the appeal, appellant argues that a determination by a state agency that a crime involves moral turpitude should be based solely on the record of conviction, and that a conviction of criminally concealing and withholding stolen and wrongfully acquired property as a misdemeanor is not a crime involving moral turpitude.

Our consideration of the criminal law here involved, New York Penal Law , McKinney's Consol. Laws, c. 40, ยง 1308, makes it clear that the elements of the crime spell out moral turpitude. Weinstein v. Division of Alcoholic Beverage Control , 70 N.J. Super. 164 (App. Div. 1961); Raphalides v. N.J. Dept. of Civil Service , 80 N.J. Super. 407 (App. Div. 1963); cf. State Bd. of Medical Examiners v. Weiner , 68 N.J. Super. 468, 488-494 (App. Div. 1961). The statute makes the crime a felony or misdemeanor, depending on the value of the property involved. However, the elements of the crime are the same no matter what the value of the

property is. Raphalides v. New Jersey Dept. of Civil Service, supra.

Appellant's other point is that the Director had no jurisdiction to render a decision that appellant was not eligible for employment by any liquor licensee. He relies on the holding in Kravis v. Hock, supra. In that case the Commissioner (now Director) had ruled that Kravis was ineligible to be employed by any liquor licensee in New Jersey because of his conviction of a crime involving moral turpitude. On appeal the Court of Errors and Appeals held that the Commissioner was without jurisdiction to make such a ruling and that the Alcoholic Beverage Control Law did not empower the Commissioner to make "any rule or decision concerning the eligibility of an individual for employment on licensed premises." 136 N.J.L. , at p. 163. The court went on to state that the Commissioner might institute disciplinary proceedings against any licensee found employing an ineligible person, and that such licensee was also subject to criminal proceedings. The court concluded that the only control the Commissioner has over ...


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