                  NOT FOR PUBLICATION WITHOUT THE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.




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