Opinion
Argued May 8, 1946 —
Decided September 17, 1946.
A contention that a plea of nolo contendere to an indictment for the offense of aiding and abetting in lewd and lascivious entertainment is not a conviction so as to come within section 33:1-25 presents an arguable question meriting the issuance of a writ of certiorari.
On petition for certiorari. Rule to show cause.
Before Justices BODINE, PERSKIE and WACHENFELD.
For the prosecutor, Irving I. Jacobs.
For the respondent, Walter D. Van Riper and Samuel B. Helfand.
The Alcoholic Beverage Control Act, amongst other things, provides ( R.S. 33:1-25): "No license of any class shall be issued to any individual who is an alien; * * * to any person who has been convicted of a crime involving moral turpitude" and ( R.S. 33:1-26) "No person who would fail to qualify as a licensee under this chapter shall be knowingly employed by or connected in any business capacity whatsoever with a licensee."
The prosecutor was indicted in the Atlantic Oyer and Terminer Court for the offenses of aiding and abetting in lewd and lascivious entertainment. He retracted a plea of not guilty to that indictment and entered a plea of nolo contendere. The prosecutor contends that such a plea is not equivalent to a "conviction" so as to come within section 33:1-25, and relies upon the case of Schireson v. State Board of Medical Examiners, 130 N.J.L. 570 . The Schireson case in this respect seems to be both applicable and controlling. At least it presents an arguable question.
The respondent contends that the Commissioner's action was merely an opinion and was, therefore, not subject to review by certiorari, relying upon Newark v. Fordyce, 88 N.J.L. 440, and other cases.
The record shows the opinion and recommendation in the Commissioner's office was "APPROVED — Applicant is ruled ineligible as determined herein. ALFRED E. DRISCOLL, Commissioner."
The letter addressed to the prosecutor by the Commissioner under date of February 21st, 1946, advises him that the Commissioner has "ruled," and refers to the opinion and recommendation as a "decision in your case." In addition to the question raised by the Schireson case there is also an arguable question as to whether or not this disposition by the Commissioner is subject to review by certiorari. O'Connell v. Bayonne, 4 N.J. Mis. R. 708.
The writ is granted, without stay.