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

Decided: April 18, 1978.

IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST C. SCHMIDT & SONS, INC., AND C. SCHMIDT & SONS, INC., OF NEW JERSEY. IN THE MATTER OF THE APPLICATION OF WM. H.P. INC., OF NEW JERSEY


On appeal from Division of Alcoholic Beverage.

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

Pressler

[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

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.

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,

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,

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


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