NCJ Number
16281
Journal
Criminal Law Bulletin Volume: 11 Issue: 1 Dated: (JANUARY-FEBRUARY 1975) Pages: 29-47
Date Published
1975
Length
19 pages
Annotation
REVIEW OF A 1973 NEW YORK CASE INVOLVING AN EX-FELON WHO WAS DENIED PERMISSION TO WORK AT A RESTAURANT LICENSED TO SERVE LIQUOR AND A COMPARISON TO OTHER AREAS OF ADMINISTRATIVE LAW.
Abstract
THE NEW YORK COURT OF APPEALS ALLOWED AN ADMINISTRATIVE AGENCY TO APPLY AN IRREFUTABLE PRESUMPTION THAT THE PETITIONER - A MAN WITH AN EXTENSIVE AND RECENT CRIMINAL HISTORY - WAS NOT ENTITLED TO A HEARING ON THE ISSUE OF HIS REHABILITATION. ADDITIONALLY, THE COURT FAILED TO RESPOND TO BERGANSKY'S CLAIM THAT THE CRIMES HE COMMITTED WERE UNRELATED TO THE JOB HE SOUGHT. HOWEVER, THE COURT IMPLIED THAT THE AGENCY DID NOT HAVE TOTAL DISCRETION AND ON DIFFERENT FACTS IT MIGHT HAVE AN INCREASED DUTY TO INQUIRE INTO THE REHABILITATION OF THE APPLICANT. THE AUTHOR NOTES THAT THE SUPREME COURT DEALT WITH THE ANALOGOUS ISSUE OF A DENIAL OF A STATE LICENSE TO PRACTICE LAW AND FOUND THAT EVIDENCE OF RECENT REHABILITATION MUST BE CONSIDERED AND THAT RESTRICTIONS MUST BE RATIONALLY RELATED TO THE OCCUPATION COVERED BY THE LICENSE. THE AUTHOR SUGGESTS THAT THROUGH THE UTILIZATION OF A JOB-RELATEDNESS APPROACH, A BALANCE CAN BE SOUGHT BETWEEN THE GOALS IMPLICIT IN A LICENSING REQUIREMENT ON THE ONE HAND (THAT PEOPLE PERFORMING SENSITIVE JOBS BE UNQUESTIONABLY QUALIFIED TO PERFORM THEM), AND THE FACILITATION OF THE REHABILITATION AND THE REENTRY INTO SOCIETY OF THE EX-CONVICT ON THE OTHER.