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In re Disciplinary Proceedings Against C. Schmidt & Sons Inc.

New Jersey Superior Court, Appellate Division

Decided: April 18, 1978.


On appeal from Division of Alcoholic Beverage.

Michels, Pressler and Bilder. The opinion of the court was delivered by Pressler, J.A.D.


[158 NJSuper Page 596] These consolidated appeals from orders of the Division of Alcoholic Beverage Control (Division) raise a pivotal question of statutory construction, namely, whether applicants for Division licenses who have been convicted of crime are entitled to the substantive and procedural protections of the Rehabilitated Convicted Offenders Act, N.J.S.A. 2A:168-1 et seq. , as amended by L. 1974, c. 161. The Division, following the Attorney General's Formal Opinion 4-1975, concluded that such persons are

[158 NJSuper Page 597]

excepted from the act and continue subject to N.J.S.A. 33:1-25, which imposes an absolute disqualification from license-holding upon persons convicted of crimes of moral turpitude. We disagree with this conclusion.

All of the orders here appealed from were essentially based on the Division's finding that by reason of prior conviction appellant William Pflaumer was a disqualified person within the intendment of N.J.S.A. 33:1-25. The personal eligibility question was raised by Pflaumer himself by way of a declaratory ruling proceeding he initiated in the Division after having become the sole stockholder of both C. Schmidt & Sons, Incorporated, and its wholly owned subsidiary C. Schmidt & Sons, Inc. of New Jersey, each of which was the holder of a limited wholesale license. Because of the declaratory ruling adjudicating Pflaumer's ineligibility these licenses were suspended during the balance of their respective terms. The third of the orders appealed from is the Division's denial of a limited transportation permit to Wm. H.P. Inc. of N.J. The basis of that order was the Division's finding that Pflaumer, already declared ineligible, was the person actually in control of the corporate applicant. As to the disqualifying convictions themselves, it is undisputed that in 1972 Pflaumer pleaded guilty in the Federal District Court in Pennsylvania to a violation of 26 U.S.C.A. § 5683, the gravamen of that charge being his participation in a scheme to mislabel beer barrels. In 1974 he pleaded guilty to both counts of another federal indictment returned in Pennsylvania, the first charging a violation of 18 U.S.C.A. § 371 (conspiring with tavern owners in the maintaining of false records of beer purchases) and the second charging a violation of 18 U.S.C.A. § 1503 (obstructing justice by attempting to influence a jury witness). The Division's ineligibility adjudication rested upon the finding that the 1972 conviction and the 1974 obstruction of justice conviction were of crimes involving moral turpitude.

[158 NJSuper Page 598]

We are satisfied, despite the arguments of appellants to the contrary, that the Division did not err in its moral turpitude classification of the two convictions in question. See State Bd. of Medical Examiners v. Weiner , 68 N.J. Super. 468, 483-484 (App. Div. 1961), aff'd 41 N.J. 56 (1963); De Moura v. Newark , 90 N.J. Super. 225 (App. Div. 1966), certif. den. 46 N.J. 605 (1966). We are also satisfied that the Division's determination that Pflaumer actually controlled Wm. H.P. Inc. was supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). And see Close v. Kordulak Bros. , 44 N.J. 589, 599 (1965). Accordingly, the only meritorious question raised by these appeals is whether or not the moral turpitude disqualification of N.J.S.A. 33:1-25 was properly relied on by the Division.

The Rehabilitated Convicted Offenders Act, N.J.S.A. 2A:168A-1 et seq. , first adopted in 1968 and substantially amended and supplemented by L. 1974, c. 161, is predicated upon the express legislative finding that "it is in the public interest to assist the rehabilitation of convicted offenders by removing impediments and restrictions upon their ability to obtain employment * * * based solely upon the existence of a criminal record." N.J.S.A. 2A:168A-1.*fn1 Accordingly,

[158 NJSuper Page 599]

that section of the Act further declares that

The primary implementation of these statements of legislative purpose and public policy is contained in N.J.S.A. 2A:168A-2, which prohibits every state and local licensing authority, without exception, from disqualifying license applicants on the basis of prior criminal conviction unless either the special disqualification of N.J.S.A. 2A:93-5 is applicable*fn2 or unless the licensing authority determines,

[158 NJSuper Page 600]

upon consideration of eight enumerated factors,*fn3 that the conviction "relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought."

In view of the expansive and all-encompassing nature of these provisions, we are unable to accept the Division's thesis that the Legislature nevertheless intended to exclude it as a licensing authority subject to the act. It bases this argument first on the historically sui generis nature of legislative and administrative control of the alcoholic beverage industry and argues that because of the unique nature of that industry the moral turpitude standard of disqualification imposed by Title 33*fn4 was not intended by the Legislature to be affected by the general 1974 act. We do not agree. Every regulated business and profession has its own unique public impact which warrants its regulation in the first instance, many are of no less substantial and general public concern than the distribution of alcohol, and the use of the moral turpitude standard of disqualification in pre-1974 regulatory legislation was typical, customary and characteristic.*fn5 We see no

[158 NJSuper Page 601]

reason to assume, therefore, that of all of the licensing authorities operating in this State, the Legislature, without so stating, actually intended that the moral turpitude standard of only this one licensing authority would be unaffected by the act.*fn6

The Division seeks further support for its position in the 1973 amendment of N.J.S.A. 33:1-26, which permits employment by a licensee (but not licensing) of a person convicted of a crime involving moral turpitude, with the approval of the Director and subject to rules and regulations of the Division. The Division's theory here is that this legislative action represents the full present extent of the Legislature's intention to relieve persons subject to the Division's control and regulation from the moral turpitude disqualification. If the 1974 act had preceded this amendment there might be merit to this argument. The fact, however, is that the comprehensive treatment of the right of convicted offenders to employment and licensing came later. We are aware of no canon of statutory construction which would suggest that an earlier piecemeal approach to a subject should take precedence over or constitute an exception to a later and more comprehensively remedial approach. See, e.g., Service Armament Co. v. Hyland , 70 N.J. 550, 559 (1976).

Finally, the Division urges that it is excepted from the act by reason of N.J.S.A. 2A:168A-6, which provides in full as follows:

[158 NJSuper Page 602]

This act shall not be applicable to any law enforcement agency; however, nothing herein shall preclude a law enforcement agency in its discretion from adopting the policies and procedures set forth herein.

It claims to be an included law enforcement agency because of the scope of its statutory powers to enforce the alcoholic beverage laws. We don not, however, regard an analysis of its enforcement powers as here dispositive. In our view, the clear thrust of the statutory exception goes to law enforcement activities and the persons who perform them. It is entirely rational to insist that persons engaged in the enforcement of law themselves have no background of criminal conviction. And that we believe is the self-evident purpose and mandate of that provision. We do not construe it as applying to the licensing function of those agencies which also have law enforcement responsibilities, at least where the licensed activity is not itself law enforcement. We note, further, that it is typical for the agency charged with the licensing of a particular occupation or profession to have also been accorded the obligation to enforce the law and the rules and regulations governing it.*fn7 If we accepted the Division's view that its excepted law enforcement function immunized it from compliance with the act in respect of its licensing function, there would be few, if any, licensing authorities to which the act would remain applicable. That result certainly was not the legislative intent. We, therefore, hold that the Division's licensing functions are subject to the remedial provisions of N.J.S.A. 2A:168A-1 et seq.

Those portions of the orders appealed from which are based on the ineligibility of appellant William Pflaumer are

[158 NJSuper Page 603]

reversed and these matters are remanded to the Division for further proceedings on that issue in conformance with N.J.S.A. 2A:168A-2. In all other respects the orders appealed from are affirmed.

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