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

Decided: March 21, 1979.

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 certification to the Superior Court, Appellate Division, whose opinion is reported at 158 N.J. Super. 595 (1978).

For affirmance in part and reversal in part -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford, Schreiber and Handler. For affirmance in part and remandment -- Justice Pashman. The opinion of the court was delivered by Sullivan, J. Pashman, J., concurring and dissenting.

Sullivan

The petition and cross-petition for certification herein were granted primarily to consider whether the licensing provisions of the Alcoholic Beverage Control Act of New Jersey are subject to the Rehabilitated Convicted Offender's Act of New Jersey.

The Alcoholic Beverage Control Act, N.J.S.A. 33:1-1 et seq., provides in section 25 that "no license of any class shall be issued to any person * * * who has been convicted of a crime involving moral turpitude." The disqualification extends to any corporation of which such a person is an officer, director or owner directly or indirectly of more than 10% of the corporate stock.

Section 26 of the act additionally bars a person convicted of a crime involving moral turpitude from being employed by, or connected in any business capacity whatsoever with, a

licensee. However, persons so convicted may, with the approval of the Director, and subject to rules and regulations, be employed by a licensee. Also, pursuant to section 31.2, after the lapse of five years from the date of his conviction, a person may apply for an order removing the statutory disqualification to licensure. The Director may so order, in his discretion, upon being satisfied that the applicant has conducted himself in a law-abiding manner during that period and that his association with the alcoholic beverage industry will not be contrary to the public interest.

The Rehabilitated Convicted Offender's Act (RCOA), N.J.S.A. 2A:168A-1 to -6, provides in section 2 that:

[n]otwithstanding the contrary provisions of any law * * * no * * * licensing authority * * * may disqualify or discriminate against an applicant for a license * * * on the grounds that the applicant has been convicted of a crime * * * except * * * if a conviction * * * relates adversely to the * * * business for which the license * * * is sought.

The same section further provides that if the licensing authority determines that a particular conviction does relate adversely, it is required to "explain in writing" how eight enumerated factors "relate to the license * * * sought." The factors listed are, (1) the nature of the occupation or business for which a license is sought, (2) the nature and seriousness of the crime, (3) the circumstances under which it was committed, (4) the date of the crime, (5) the age of the person when the crime was committed, (6) whether the crime was an isolated or repeated incident, (7) social conditions which may have contributed to the crime, and (8) any evidence of rehabilitation.*fn1 By L. 1974, c. 161, a new section,

N.J.S.A. 2A:168A-6, was added to RCOA providing that "[t]his act shall not be applicable to any law enforcement agency * * *."

The basic facts herein are undisputed. William H. Pflaumer is the sole stockholder and president of C. Schmidt & Sons, Inc. and C. Schmidt & Sons, Inc. of New Jersey, which corporations are the holders of limited licenses issued by the Division of Alcoholic Beverage Control (ABC). In 1972 Pflaumer pleaded guilty in the Federal District Court in Pennsylvania to a charge of transporting improperly labeled beer in violation of 26 U.S.C.A. § 5683. In 1974 he pleaded guilty to both counts of another federal indictment, the first charging a conspiracy with tavern owners to maintain false records of beer purchases in violation of 18 U.S.C.A. § 371 and the second charging obstruction of justice by attempting to influence a prospective Grand Jury witness contrary to 18 U.S.C.A. § 1503.

As a result of these convictions, the ABC, in June 1976, conducted a hearing with regard to Pflaumer's eligibility for licensing in the alcoholic beverage industry. On August 25, 1976 the Director of the ABC issued a declaratory ruling that Pflaumer had been convicted of acts involving moral turpitude and that he and the two Schmidt corporations were disqualified under N.J.S.A. 33:1-25 and -26 from engaging in the alcoholic beverage industry in this State. A notice of appeal was filed in the Appellate Division by Pflaumer and the Schmidt corporations.

While the foregoing administrative matter was pending, the ABC, in July 1976, held a hearing on an application for a limited transportation ...


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