[143 NJSuper Page 360] Defendant's counsel moved for dismissal of the indictment at the end of the State's case. Defendant was indicted for violating N.J.S.A. 45:19-10, which prohibits the unlicensed "engag[ing] in the private detective business or as a private detective or investigator * * *." Counsel argued that the State's proofs may have
shown that defendant engaged in conduct which constituted a single or isolated transaction of detective work, but the proofs failed to show that defendant engaged in a business. For the reasons expressed in this opinion, the court has adopted counsel's argument and granted the motion.
Giving the State the benefit of the most favorable factual inferences that can be drawn from its evidence, the court makes the following findings of fact.
Defendant is licensed to do detective work in New York State. He runs a detective business in New York City. He has no office in New Jersey. He has never advertised in New Jersey. So far as the record shows, he has never worked in New Jersey except for the work which is the subject of this indictment.
On November 28, 1973 a larceny occurred on Miss Doris Duke's estate in Hillsborough Township, New Jersey. As a result Miss Duke and her attorney contacted defendant in New York. Miss Duke's testimony showed that her original purpose in contacting him was centered upon investigation of the larceny. Various conversations were had, and defendant visited Miss Duke's estate to discuss not only the specific larceny but also the general security of the estate.
Thereafter defendant conducted an investigation of the larceny by, among other things, engaging a firm to perform polygraph examinations of the hundred or more employees who worked on Miss Duke's estate. The probable illegality of these examinations under N.J.S.A. 2A:170-90.1 is not an issue in this case.
In addition, defendant caused the estate to engage additional security guards, both to act as undercover detectives to investigate the larceny and also to provide additional protection for, among other concerns, the wildlife on the estate.
The entire duration of Miss Duke's employment of the defendant amounted only to some thirty odd days, through December of 1973 and early January of 1974. What started as a harmonious relation ended discordantly over a fee dispute.
It is this court's obligation to determine whether this set of facts can support an indictment under N.J.S.A. 45:19-10. As quoted previously, this statute makes it unlawful for an unlicensed person to "engage in the private detective business or as a private detective or investigator * * *" (emphasis supplied).
The authorities suggest, and the prosecutor seemed to concur, that the law interprets the word "business" and the phrase "to engage in a business" and similar phrases, when they are used in professional licensing statutes, as special terms of art which, unless explicitly otherwise defined, encompass only a continuous, repeated, on-going, regular course of conduct. That conduct which constitutes only a single transaction, or even a few isolated transactions, does not fall within the meaning of the phrase "to engage in a business." See generally, Annotation, "License -- Single Transaction," 93 A.L.R. 2d 90 (1964).
In a civil case, Fox v. Smith , 197 N.Y. 527, 90 N.E. 1158 (Ct. App. 1909), rev'g 123 App. Div. 369, 108 N.Y.S. 181 (App. Div. 1908), the highest court of New York had occasion to interpret a licensing statute which criminalized "engag[ing] in the business of a private detective for hire or reward" without the proper license. The plaintiff, unlicensed, had agreed to act as a private detective to watch the movements of a husband and report to the wife, for which he was promised a fee. Plaintiff devoted considerable time and money to the project until defendant wife refused to pay. The lower courts dismissed plaintiff's contract suit, holding that his activities had been barred by the statute. However, the dissenting opinion of the Appellate Division argued that the phrase "engaging in business" was not meant to touch an occasional employment of an individual in a specific instance, but instead was carefully confined to controlling a regular business. The Court of Appeals affirmed this dissent as the law of the case and granted a new trial.
A similar result from our own jurisdiction is reported in Wensley v. Godby , 101 N.J.L. 325 (Sup. Ct. 1925). A
statute, L. 1921, c. 141 § 1 et seq. , made it "unlawful for any person * * * to engage * * * in the business of a real estate broker * * * without first obtaining a license." Plaintiff, unlicensed, had sued to recover a commission agreed upon in writing for services in effecting a sale of real estate. The transaction was an isolated one, and "the evidence fail[ed] to prove that [he] [was] engaged in the business." 101 N.J.L. at 325. The lower court had denied recovery because of the statute. The former Supreme Court ...