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Bevacqua v. Renna

Decided: November 13, 1986.

JOHN J. BEVACQUA, APPELLANT,
v.
JOHN P. RENNA, COMMISSIONER, NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, RESPONDENT



On appeal from final determination of the Commissioner of the Department of Community Affairs.

Michels, Skillman and Landau. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

[213 NJSuper Page 556] This appeal requires us to consider the relationship between the section of the Uniform Construction Code authorizing the

Commissioner of the Department of Community Affairs to license construction code officials, N.J.S.A. 52:27D-124(a)(2), the section of the Code of Criminal Justice mandating the disqualification from public offices and positions of persons convicted of certain offenses, N.J.S.A. 2C:51-2 c, and the section of the Rehabilitated Convicted Offenders Act prohibiting discrimination in professional licensing against convicted offenders, N.J.S.A. 2A:168A-2.

Appellant was licensed by the Commissioner of Community Affairs pursuant to N.J.A.C. 5:23-5.1 et seq. as an electrical subcode official. In 1982 he pled guilty to theft by failing to make the required disposition of property received, in violation of N.J.S.A. 2C:20-9. The offense consisted of the failure to remit certain inspection fees to Mahwah, for which appellant acted as a subcode official. Since the amount involved was less than $200, the guilty plea was to a disorderly persons offense. Based on this offense the Commissioner revoked appellant's license as electrical subcode official. We affirmed this revocation in an unreported opinion. Bevacqua v. State of N.J. Dep't of Community Affairs, Div. of Housing, Bur. of Construction Code Enforcement, A-5623-81T3. At that time, we rejected appellant's argument that the penalty of revocation was too severe, noting that, in the view of the Department of Community Affairs, appellant was "involved in activities of an unlawful nature which were inherently dishonest and reached to the very heart of [his] statutory responsibilities and trust."

Less than a month after our opinion was issued, appellant reapplied to the Department for licensure as an electrical subcode official and electrical inspector. The Bureau of Construction Code Enforcement denied the application on the basis of appellant's disorderly persons conviction and the recent revocation of his license.

Appellant requested and was granted a hearing before an Administrative Law Judge. The Administrative Law Judge

concluded that the denial of appellant's application was improper for two reasons. First, he read the Rehabilitated Convicted Offenders Act to preclude denial of licensure based upon a conviction for a disorderly person's offense. Second, he found that appellant had been rehabilitated to a sufficient degree that his conviction no longer adversely relates to the occupation for which he seeks licensure.

The Commissioner of Community Affairs reversed the decision of the Administrative Law Judge and sustained the denial of appellant's application for a license. We affirm the Commissioner's decision.

Appellant argues that the Rehabilitated Convicted Offenders Act precludes denial of a license based upon a conviction for a disorderly persons offense. The section of the Act upon which he relies states in relevant part:

[N]o "licensing authority" authorized to pass upon the qualifications of any applicant for a license . . . to engage in the practice of a profession or business . . . may disqualify or discriminate against an applicant . . . on the grounds that the applicant has been convicted of a crime, or adjudged a disorderly person, except that a licensing authority may disqualify or discriminate against an applicant for a license . . . if N.J.S. 2C:51-2 is applicable or if a conviction for a crime relates adversely to the occupation, trade, vocation, profession or business for which the license . . . is sought. [ N.J.S.A. 2A:168A-2].

Appellant argues that under this section a licensing authority is prohibited from disqualifying an applicant on the grounds that he has been either "convicted of a crime, or adjudged a disorderly person," but that the exception from this prohibition for offenses which "relate adversely to the . . . profession or business for which the license . . . is sought" is limited to "conviction for a crime." Since appellant was only adjudged a disorderly person and not convicted of a crime, he argues that the Commissioner of Community Affairs ...


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