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Avant Industries Ltd. v. Kelly

Decided: April 5, 1974.

AVANT INDUSTRIES LTD., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
DAVID B. KELLY, SUPERTENDENT OF THE DIVISION OF STATE POLICE OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Halpern, Matthews and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Plaintiff appeals pursuant to N.J.S.A. 2A:151-21 from a denial by defendant Superintendent of State Police of his application to be registered as a manufacturer of firearms under N.J.S.A. 2A:151-19.

On June 14, 1973 plaintiff filed an application with defendant seeking to be registered as a manufacturer of firearms.

His application was denied by letter dated November 15, 1973, reading in pertinent part as follows:

This letter is to inform you that your application to be registered as a Manufacturer or Wholesale Dealer of Firearms has been denied by the Superintendent of State Police.

Based upon tests by the State Police and an independent firearms testing laboratory, the Superintendent is satisfied that the firearm you wish to manufacturer [sic], would be detrimental to the protection of the public safety, health and welfare * * *.

Plaintiff was never advised that tests on the proposed firearm were being conducted, the nature of the tests or the results thereof. It first received information concerning the results of the tests when the reports were annexed to the brief filed by defendant in this appeal.

While plaintiff does not attack the constitutionality of the statute in question, it contends that the failure of defendant to promulgate rules and regulations as prescribed by the statute*fn1 and to afford it a hearing constitutes arbitrary and

unreasonable conduct resulting in a deprivation of due process of law.

The form which the applicant must submit for registration appears to seek information relating only to his character, as distinguished from information concerning the nature and quality of the firearm he proposes to manufacture. While the statute provides that "the Superintendent shall prescribe standards * * * for registration of manufacturers * * * of firearms," the only standards or regulations which have been promulgated to which the parties refer us or which our own research has uncovered are those contained in N.J.A.C. 13:54-4.1 et seq. These rules and regulations and the forms required thereunder do not contain any standards pertaining to the registration of manufacturers of firearms. In fact, defendant concedes that regulations concerning the nature of the weapons and the standards pertaining to their manufacture have not been promulgated. Further, he argues that while the statutory language appears mandatory, it should be construed merely directory.

While the statute in question vests in defendant the authority to register applicants to manufacture firearms, his ...


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