In the Matter of the Application for a Retail Firearms

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4229-11T2
IN THE MATTER OF THE APPROVED FOR PUBLICATION
APPLICATION FOR A RETAIL
March 28, 2016
FIREARMS DEALER'S LICENSE
RENEWAL BY CAYUSE CORP. APPELLATE DIVISION
LLC, T/A WILD WEST CITY
______________________________
Submitted November 12, 2015 – Decided March 28, 2016
Before Judges Alvarez, Ostrer and Haas.
On appeal from the Superior Court of New
Jersey, Law Division, Sussex County.
Mary K. Benson, attorney for appellant
Cayuse Corp. LLC, t/a Wild West City
(Michael Stabile, on the pro se brief; Ms.
Benson, on the reply brief).
Francis A. Koch, Sussex County Prosecutor,
attorney for respondent State of New Jersey
(Laura L. Nazzaro, Assistant Prosecutor, of
counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
This appeal involves the denial of an application for a
retail firearms dealer license under N.J.S.A. 2C:58-2. It
requires us to clarify the procedure to be followed by trial
judges considering applications under this statute, as well as
the applicant's burden to prove entitlement to a license.
In this case, the judge denied the application after an ex
parte proceeding. The applicant did not appear at this hearing,
and there is no persuasive evidence the applicant received
advance notice. The applicant was then permitted to "appeal"
the denial in a hearing before the same judge. Over a year
after the initial denial, the applicant was notified of the
hearing, but he chose not to appear. The hearing took place in
the applicant's absence, and the judge entered an order
dismissing the "appeal" of the initial denial. The applicant
appeals from that order.
We hold the court erred in proceeding ex parte. The offer
of a plenary hearing did not cure that error. However, we also
conclude an applicant bears the burden to establish that he has
satisfied the eligibility requirements of N.J.S.A. 2C:58-2.
Inasmuch as the applicant has not met that burden in an
appropriate hearing, we reject his contention that he should
automatically receive a license because of procedural
infirmities. We also decline to order a new hearing, because
the term of the license at issue has already expired.
Therefore, we vacate the license denial, but do not remand for a
hearing.
2 A-4229-11T2
I.
We discern the following facts from the record. Michael
Stabile filed the application at issue in August 2010 on behalf
of "Cayuse Corp. LLC." (Cayuse).1 Stabile sought to renew retail
firearms dealer's license number 2530, issued to "Western World,
Inc. t/a Wild West City" (WWI), and transfer it to Cayuse.
License 2530 was set to expire October 4, 2010, three years
after it was issued.2 "Wild West City" is the trade name of a
Western theme park in Byram Township.
The State Police apparently forwarded the application to
the Law Division on September 21, 2010. The record does not
include a State Police investigation of the application. On
September 28, 2010, an assistant Sussex County prosecutor wrote
to the court that "the State objects to the renewal and/or
continued issuance of a retail firearms' license to Michael
Stabile and/or the Cayuse Corporation." The opposition was
based on Stabile's involvement, as manager of Wild West City, in
an accidental shooting at the park. On July 7, 2006, a juvenile
actor employed by the park used live ammunition in his weapon
1
We also use "Cayuse" to refer to "Cayuse, LLC," the limited
liability company Stabile formed. "Cayuse Corp. LLC" appears to
be a misnomer for "Cayuse, LLC," as there is no record evidence
of the formation of an entity by the name "Cayuse Corp. LLC."
2
See N.J.S.A. 2C:58-2(a) (retail dealer licenses are valid for
three years).
3 A-4229-11T2
during a skit, and shot and grievously injured another actor.
Actors used real firearms in the skits, but were supposed to
only load them with blanks.
The assistant prosecutor wrote, "The State has concluded
that Mr. Stabile's recklessness in the handling and distribution
of firearms caused the injury" to the actor. Stabile had been
charged, in a June 2008 grand jury indictment, with thirteen
offenses, including unlawful transfer of a firearm to a minor;
facilitating possession of a handgun without a permit;
aggravated assault; and violating a law intended to protect
public safety. The same judge assigned the license application
was presiding over the criminal proceeding. The prosecutor
summarized the charges, and asserted an investigation revealed
that firearms safety procedures under Stabile's management were
lax; live ammunition was routinely kept in the same place as the
blanks the untrained actors loaded into their operable firearms;
and "Mr. Stabile hid the bullets from law enforcement officers
investigating the shooting."
The grand jury had also indicted Cheyenne Corporation,
which owned the land under the theme park, and WWI, which
operated Wild West City at the time of the shooting. The
prosecutor noted that both entities had been dissolved into a
new entity named Cayuse LLC, which Stabile owned. The
4 A-4229-11T2
prosecutor urged that "[t]o the extent Cayuse, LLC presently has
a retail license, that license should be revoked." Attached to
the letter were the criminal complaints and indictment against
Stabile, Cheyenne and WWI; and corporate documents pertaining to
Cheyenne, WWI and Cayuse LLC. The letter was sent to the State
Police Firearms Investigation Unit and Robert Gluck, WWI's and
Cheyenne's attorney, but not to Stabile or his attorney.
On September 30, 2010, the judge conducted an ex parte
telephonic and in-person hearing, on the record, on Cayuse's
application. Only Gluck and a different assistant prosecutor
appeared. Gluck made it clear he did not represent Cayuse or
Stabile. Neither Stabile nor any representative of Cayuse
participated in the hearing. Stabile contends on appeal that he
was not given notice of the hearing. The State does not contest
that contention.3
At the hearing, the court did not admit evidence or hear
argument. The judge noted he had read the prosecutor's letter.
The judge assumed the State had the burden to establish reasons
to deny the application, which he found was met based on the
pending charges against Stabile and Cayuse. The judge denied
3
We note that the assistant prosecutor asserted at the end of
the hearing, after Gluck had already signed off, that Stabile
"didn't want to be here." However, there is no evidence of
prior written notice to him, or an effort to reach him by
telephone.
5 A-4229-11T2
the application, but stated Cayuse was entitled to a de novo
hearing. The judge referenced In re Sportsman's Rendezvous
Retail Firearms Dealer's License, 374 N.J. Super. 565, 581-82
(App. Div. 2005), in which a trial judge summarily denied a
license application and thereafter held a de novo hearing. The
judge explained, "[I]f I deny this, this gets back to [Stabile],
then he can, I guess, pursue whatever he wishes to pursue."
On October 13, 2010, the State Police advised Stabile by
fax that his application was denied and that he could request a
hearing in Superior Court within thirty days of the denial.
Stabile was advised he was not permitted to conduct retail
firearms business after the prior license expired.
On October 14, 2010, Stabile wrote to the court requesting
a hearing. He also asked whether he should be represented by
counsel at the hearing, whether he should file papers in
advance, and if the hearing would be before the same judge.
Having received no response, Stabile mailed another copy of his
letter on October 31, 2010, adding a post-script requesting that
court staff contact him regarding a hearing. License 2530
expired on October 4, 2010.
Stabile took no further action until January 2012, when he
was informed by a federal Alcohol Tobacco and Firearms inspector
that License 2530 had expired. Stabile then contacted the State
6 A-4229-11T2
Police and the court, contending that he had timely requested a
hearing and that, because no hearing had been scheduled, his
license renewal should automatically be approved.
After multiple letters and phone calls between Stabile and
court staff, the court scheduled a hearing for March 2, 2012,
for "Firearms Appeal: Denial of Retail License Renewal." On
February 22, 2012, Stabile received written notice of the
hearing. However, he decided to pursue an appeal with this
court. On March 1, 2012, he informed the Law Division he would
not attend the hearing.
The March 2012 hearing proceeded without Stabile. An
assistant prosecutor appeared, but did not introduce evidence.
The judge summarized the history of the application. He noted
that, consistent with Sportsman's, the applicant was entitled to
a plenary hearing, but he rejected the contention that the
license should automatically be renewed because the court did
not conduct a timely hearing. As for the merits, the court
found it would be inappropriate to grant the application while
the criminal charges against Stabile were pending.4 On March 12,
2012, the judge issued an order stating, "the Applicant's appeal
of the Court's previous denial is dismissed based on the pending
4
In 2011, the court dismissed two of the charges against Stabile
with the State's consent, but most of them remained.
7 A-4229-11T2
indictable charges against the Applicant . . . as well as the
Applicant's failure to appear for the requested plenary
hearing."
The indictment was thereafter dismissed as to Stabile.
However, on April 11, 2012, WWI entered a conditional plea of
guilty through Stabile to unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b). Stabile stated in his allocution that WWI
provided operable handguns to the actors and, to the
corporation's knowledge, they did not have carry permits. WWI
retained the right to appeal the limited question whether a
carry permit was required by the actors in the skit. That
appeal was dismissed in September 2015 upon WWI's request.
II.
On behalf of Cayuse, Stabile appeals from the March 12,
2012 order.5 He argues the court's denial in September 2010
violated his right to due process, because the hearing was held
without notice and an opportunity to be heard. He claims he
satisfied the prerequisites for a license, and the unproved
allegations of the indictment were an insufficient basis to deny
5
Although Stabile appeared pro se before the trial court, Cayuse
was required to obtain counsel on appeal. R. 1:21-1(c).
8 A-4229-11T2
licensure.6 Stabile adds that the indictment was dismissed as to
him.
Stabile also defends his decision to absent himself from
the plenary hearing. He contends his right to appeal to this
court ripened after the trial court's denial in September 2010.
He argues he "attempted to invoke this right as soon as he
learned, in January 2012, that his license had been denied."
Stabile also states he did not attend the March 2012 hearing to
avoid prejudicing his pending criminal case.
The State responds that the judge properly denied the
license application, relying on investigation reports related to
the July 2006 shooting incident. However, these documents were
not in the record before the trial court. The State also relies
on Stabile's admissions in entering WWI's plea on April 11,
2012. The State contends that even if there were procedural
errors in the application process, they do not compel automatic
licensure. The State argues that denial was appropriate given
Stabile's failure to appear at the March 2012 hearing.
6
His appendix includes various documents not of record before
the trial court, including corporate documents, grand jury
transcripts, investigatory records related to the shooting, and
evidence of prior inspections of Wild West City.
9 A-4229-11T2
III.
We defer to a trial court's fact findings if supported by
substantial credible evidence. In re Return of Weapons to
J.W.D., 149 N.J. 108, 116-17 (1997). However, we owe no
deference to the trial court's legal conclusions, including its
interpretation of N.J.S.A. 2C:58-2. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also In
re Pantano, 429 N.J. Super. 478, 483 (App. Div. 2013), certif.
dismissed as improvidently granted, ___ N.J. ___ (2014).
A.
We begin by reviewing the statute. N.J.S.A. 2C:58-2(a)
prohibits retail dealers from selling firearms "unless licensed
to do so." To obtain a license, applicants must apply to the
Superior Court using a standard form prescribed by the State
Police Superintendent. Ibid. The judge "shall grant a license"
if he or she finds "the applicant meets the standards and
qualifications established by the superintendent and that the
applicant can be permitted to engage in business as a retail
dealer of firearms . . . without any danger to the public
safety, health and welfare." Ibid. Anyone who is under twenty-
one years old, or who would not qualify for a permit to purchase
a handgun or a firearms purchaser identification card (FPIC), is
ineligible for a retail dealer license. Ibid. Licenses are
10 A-4229-11T2
subject to various administrative and recordkeeping conditions.
Ibid. Breach of a condition is grounds for revocation, after
notice and a hearing. Ibid.
Regulations promulgated by the State Police clarify that
the application form is first submitted to the State Police,
which forwards the application to the court. N.J.A.C. 13:54-
3.3(b). "The Superintendent shall cause the applicant . . . to
be investigated for purposes of providing the judge . . . with
such information as the Superintendent deems appropriate
. . . ." N.J.A.C. 13:54-3.7. State Police may also conduct
criminal and mental health records checks. N.J.A.C. 13:54-3.3.
N.J.A.C. 13:54-3.4 sets forth "standards and qualifications"
that essentially mirror the statutory requirements. N.J.A.C.
13:54-3.7 largely restates the statutory standards governing the
court's determination. Renewal applicants must meet the same
requirements as initial applicants and, with minor exceptions,
follow the same procedures. N.J.A.C. 13:54-3.10. Any person
"denied approval by a Superior Court judge . . . may file an
appeal in accordance with law." N.J.A.C. 13:54-3.18(a).
B.
We discern no basis in the statute or the Rules of Court
for a court to decide a contested application ex parte, and then
allow an unsuccessful applicant to seek de novo review by the
11 A-4229-11T2
same judge. We hold that a court should ordinarily conduct a
hearing on the record, with notice to the applicant, on a
contested application under N.J.S.A. 2C:58-2. An evidentiary
hearing is required if there are genuine issues of material
fact. If the application is unopposed, however, a hearing is
not required, unless the judge sua sponte discerns issues of
concern or grounds to reject the application. These rules are
necessary to preserve the judicial nature of proceedings under
N.J.S.A. 2C:58-2.
In authorizing a judge to decide an applicant's eligibility
for licensure, we presume the Legislature intended the process
to conform with that typical of judicial determinations. The
Supreme Court has recognized that when the Legislature delegates
nonjudicial duties to the judiciary — including deciding
firearms-related licenses — it does not intend to alter the
nature of judicial action. See Massett Bldg. Co. v. Bennett, 4
N.J. 53, 60-61 (1950). Rather, the delegation "reflects an
intent of the Legislature to seek an impartial and independent
tribunal for the decision of matters deemed vital to the welfare
of the community." Id. at 61. In a contested matter, that
implicates notice and an opportunity to be heard.
Rule 1:2-1 requires that hearings "be conducted in open
court, unless otherwise provided by rule or statute." "[E]xcept
12 A-4229-11T2
in unusual circumstances, a trial court should not communicate
ex parte with a party or witness, even with the parties'
consent." In re Dubov, 410 N.J. Super. 190, 201 (2009). These
are fundamental principles. See Code of Judicial Conduct, Canon
3(A)(6) ("A judge should accord to every person who is legally
interested in a proceeding, or that person's lawyer, full right
to be heard according to law, and, except as authorized by law,
neither initiate nor consider ex parte or other communications
concerning a pending or impending proceeding."). Indeed, due
process mandates the hearing requirement of Rule 1:2-1. Dubov,
supra, 410 N.J. Super. at 201.
We also presume that, as with other licensing proceedings,
the Legislature intended the judge's decision on a contested
application to be based on competent evidence. In Weston v.
State, 60 N.J. 36, 43-46 (1972), our Court discussed the
procedural protections for applicants for FPICs. A police chief
is authorized to grant or deny an application ex parte. Id. at
43-44. Given the informality of the chief's initial decision,
an evidentiary hearing is required when an applicant appeals a
denial to the Law Division. Id. at 44-45. At the hearing, the
judge may admit hearsay, but "a residuum of legal and competent
evidence in the record" must support the court's decision. Id.
at 51.
13 A-4229-11T2
In light of these principles, the process used in this
case, which involved a contested application, was deficient.
Cayuse was not given an opportunity to participate in the
initial ex parte hearing, but the assistant prosecutor, who
contested the application, was. The court should not have
relied on the prosecutor's letter, as it was not served on
Stabile.7 An "appeal" to the same judge does not cure these
deficiencies. Although denominated an "appeal," the second-
round hearing differs from an appeal because the judge who hears
the "appeal" has previously ruled against the applicant on the
same issue. The applicant may feel the court has already made
up its mind on the matter. The process is also unlike a motion
for reconsideration, where the initial order is entered after
notice and an opportunity to be heard.
We recognize the trial judge followed the two-stage
procedure utilized in Sportsman's, supra, where the trial court
summarily denied a renewal application based on the State
Police's recommendation; the applicant "appealed" the denial;
and the court conducted a de novo plenary hearing with the
applicant's full participation. 374 N.J. Super. at 571. On
appeal, the panel held this procedure was not reversible error,
7
The court also should have marked the prosecutor's letter as an
exhibit, R. 1:2-3, and entered a formal order embodying its
decision, R. 1:6-2(f).
14 A-4229-11T2
as the applicant was afforded a de novo hearing at which both
sides presented witnesses and documentary evidence. Id. at 581-
82. We decline to read Sportsman's to establish this two-stage
procedure as the default mechanism for deciding applications
under N.J.S.A. 2C:58-2.8
Furthermore, in denying Cayuse's application, the court
relied on unproved allegations in an indictment. A decision on
an application under N.J.S.A. 2C:58-2 must be based on competent
evidence, which may include hearsay if it is corroborative. See
Weston, supra, 60 N.J. at 51. A pending criminal charge,
standing alone, is not competent evidence. To rely on facts
underlying pending criminal charges, the State must present
competent evidence to establish those facts. See In re Osworth,
365 N.J. Super. 72, 78 (App. Div. 2003) (dismissal of criminal
charges does not bar court from considering underlying facts in
deciding application under N.J.S.A. 2C:58-3). But a court may
not rely on unproved allegations in an indictment. See In re
Kollman, 210 N.J. 557, 576 (2012) (in expungement cases, court
8
Although the panel analogized the ex parte denial of the
application to the ex parte issuance of a temporary restraining
order (TRO), id. at 581, an ex parte TRO may only be granted
upon a showing of emergent circumstances, see R. 4:52-1(a),
which are not present in license applications. Moreover, a TRO
is by definition temporary, while an ex parte license denial is
final unless the applicant takes a further "appeal."
15 A-4229-11T2
"may only consider established or undisputed facts, not unproved
allegations").
Accordingly, we conclude the court should not have decided
Cayuse's application ex parte without affording the applicant
notice and an opportunity to be heard. Allowing the applicant
to "appeal" to the same judge did not cure this deficiency.
C.
In outlining the proper procedure for considering retail
dealer license applications, we must also address allocation of
the burden of proof. After reviewing the statutory text and
discussing general principles of burden allocation, we conclude
that an applicant bears the burden to prove the eligibility
requirements of N.J.S.A. 2C:58-2 are met.
N.J.S.A. 2C:58-2 generally prohibits the retail sale of
firearms unless the dealer holds a retail firearms dealer
license. The court "shall grant a license" if it finds "that
the applicant meets the standards and qualifications established
by the superintendent and that the applicant can . . . engage in
business as a retail dealer of firearms . . . without any danger
to the public safety, health and welfare." Ibid. The statute
also provides that a license "shall [not] be granted" if an
applicant is under twenty-one or would not qualify for a
purchase permit or FPIC. Ibid. Thus, the statute does not
16 A-4229-11T2
require issuance unless grounds for denial are presented;
rather, it authorizes issuance only if the court finds these two
positive criteria are met, and there are no disqualifying facts.9
We have held that similar language in N.J.S.A. 2C:58-4,
which governs carry permits, puts the burden on the applicant to
prove his eligibility for a permit. That section provides, in
relevant part:
The court shall issue the permit to the
applicant if, but only if, it is satisfied
that the applicant is a person of good
character who is not subject to any of the
disabilities set forth in section 2C:58-3c.,
that he is thoroughly familiar with the safe
handling and use of handguns, and that he
has a justifiable need to carry a handgun.
[N.J.S.A. 2C:58-4(d).]
In In re Wheeler, 433 N.J. Super. 560, 575, 580-82 (App. Div.
2013), we held that an applicant bears the burden of proving all
three requirements listed above:
An applicant for a carry permit must
demonstrate more than absence of a
disqualifying condition. The applicant must
show that he or she is "thoroughly familiar
with the safe handling and use of handguns"
and that he or she has "a justifiable need
to carry a handgun."
[Id. at 575 (quoting N.J.S.A. 2C:58-4(d)
(emphasis in original).]
9
The applicant's age and eligibility for a purchase permit or
FPIC are not at issue in this case.
17 A-4229-11T2
We also held in Pantano, supra, that the applicant bears the
burden of proving "justifiable need." 429 N.J. Super. at 483-84
(citing In re Preis, 118 N.J. 564, 571 (1990); Siccardi v.
State, 59 N.J. 545, 557 (1971)).10
We see no reason to depart from this burden allocation when
construing similar text in N.J.S.A. 2C:58-2. Both N.J.S.A.
2C:58-2 and N.J.S.A. 2C:58-4 provide, in essence, that the court
shall grant the license or permit if it finds requisite facts.
We construe these two sections together to resolve any
uncertainty about the meaning of N.J.S.A. 2C:58-2(a). See
J.W.D., supra, 149 N.J. at 115 ("Statutes in pari materia are to
be construed together when helpful in resolving doubts or
uncertainties and the ascertainment of legislative intent.").
Our interpretation is supported by more general principles
of burden allocation. Absent a clear legislative direction, the
allocation of the burden of proof is a procedural matter
"normally reserved for the courts." In re Will of Smith, 108
N.J. 257, 264 (1987); see also Mercedes-Benz Credit Corp. v.
Lotito, 328 N.J. Super. 491, 510 (App. Div.), certif. denied,
165 N.J. 137 (2000). Allocation of the burden of proof
10
Although the burden rests on the State to prove grounds to
deny an application under N.J.S.A. 2C:58-3, that statute creates
a right to receive the permit or FPIC "unless good cause" for
denial appears. See Weston, supra, 60 N.J. at 46.
18 A-4229-11T2
can vary depending on the type of
proceedings, the comparative interests of
the parties, the relative litigational
strengths or weaknesses of the parties, the
access of the parties to proof, and the
objectives to be served by the evidence in
the context of the particular proceeding.
[Romano v. Kimmelman, 96 N.J. 66, 89
(1984).]
Our Court has recognized that "the party with greater expertise
and access to relevant information should bear those evidentiary
burdens." J.E. ex rel. G.E. v. State, 131 N.J. 552, 569-70
(1992). Under the Code of Criminal Justice, in which the retail
dealer license statute is located, the burden to prove a fact
that is not an element of an offense is borne by the party
"whose interest or contention will be furthered if the finding
should be made[,]" unless the Code otherwise provides. N.J.S.A.
2C:1-13(d).
The applicant should bear the burden of proving the
eligibility requirements because he or she has greater access to
facts demonstrating compliance. The applicant can best present
information regarding his or her ability to deal with firearms
safely. Cf. In re Kollman, 210 N.J. 557, 573 (2012) (burden is
on petitioner to establish grounds for early pathway expungement
in part because he or she "is uniquely qualified to demonstrate
facts about his or her character"). And it is in the
applicant's interest to establish eligibility for licensure.
19 A-4229-11T2
Cf. ibid. (citing N.J.S.A. 2C:1-13(d)(1) and reasoning that
burden of proving that expungement serves the public interest
rests on petitioner because the finding "furthers the
applicant's cause").
While the burden of proving entitlement to the license is
always upon the applicant, we add that the State should
generally bear the initial burden of producing evidence
underlying its objection to the application. Requiring the
State to inform the applicant of the perceived deficiencies in
an application, and to produce relevant evidence, will expedite
the hearing by ensuring that only the disputed issues are
addressed. This is not inconsistent with the direction in
Weston, supra, 60 N.J. at 46, that the hearing on a permit
application under N.J.S.A. 2C:58-3 should begin with testimony
of the applicant, followed by the police chief who bears the
burden of proving the applicant is not qualified, and then any
rebuttal testimony by the applicant. See also In re Appeal of
the Denial of the Application of Z.L., 440 N.J. Super. 351, 357
(App. Div.), certif. denied, 223 N.J. 280 (2015). Just as the
party without the burden of persuasion must testify first in the
hearing under N.J.S.A. 2C:58-3, the party without the burden of
persuasion in a hearing under N.J.S.A. 2C:58-2 – the State –
should generally go first.
20 A-4229-11T2
In sum, the applicant bears the burden to prove he or she
meets the "standards and qualifications" and can "engage in
business . . . without any danger to the public safety, health
and welfare." N.J.S.A. 2C:58-2. It is not the State's burden
to prove the negative, although the State generally bears the
burden of production.11 The applicant must prove he or she has
met the requirements by a preponderance of the evidence. See
N.J.S.A. 2C:1-13(f).
IV.
As we have noted, the proceedings in this case did not
comply with the procedure we have outlined.12 Nonetheless, we
disagree that Cayuse is entitled to an order granting it a
retail dealer license. We rejected a similar argument in Dubov,
supra, which involved an application for a FPIC under N.J.S.A.
2C:58-3. We held that the court's failure to conduct a timely
hearing on a challenge of a police chief's denial did not
entitle the applicant to "automatic approval of his application
without showing that he complies with the statutory requirements
11
We recognize the panel in Sportsman's stated that the State
bears the burden of proving the "any danger to public health,
safety and welfare" element. 374 N.J. Super. at 573. But the
panel did not discuss why the burden should rest with the State
as it found that the burden was satisfied on the record evidence
in that case. Id. at 576-79.
12
We recognize that the court may have been guided by the
panel's decision in Sportsman's.
21 A-4229-11T2
for purchasing a firearm." 410 N.J. Super. at 198. As we
stated in Dubov, we do not believe the Legislature intended that
a person who has not established his entitlement to a license
should obtain one because of a procedural oversight. See ibid.
The burden of proving entitlement to a license rested with
Cayuse.
It is too late to remand for a hearing that would comply
with our opinion, as Stabile sought a three-year license that
would expire in 2013. N.J.S.A. 2C:58-2(a). Thus, the
application for a 2010-13 license is moot. See Greenfield v.
N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div.
2006) ("An issue is moot when the decision sought in a matter,
when rendered, can have no practical effect on the existing
controversy.") (internal quotation marks and citation omitted).
However, the challenge to the denials is not moot. An
applicant for a retail dealer license must disclose on the
application form whether he has been denied a license in the
past. The fact that the 2010 and 2012 denials may prejudice
future applications by Cayuse or some other entity under
Stabile's direction satisfies us that Stabile or Cayuse may
suffer adverse consequences as a result of the denials. See
N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252,
261-62 (App. Div. 2009) (an appeal is not moot if a party may
22 A-4229-11T2
still suffer adverse consequences as a result of the decision),
certif. denied, 201 N.J. 153 (2010).
Accordingly, we are constrained to vacate the September
2010 and March 2012 orders. However, we shall not remand for a
hearing on the 2010 application. Any new application for a
retail dealer license shall be decided in accord with the
process we have outlined. We express no opinion on the merits
of such an application.
Reversed. We do not retain jurisdiction.
23 A-4229-11T2