dissenting.
I disagree with the principles stated in the majority opinion with respect to the application of the Rehabilitated Convicted Offenders Act (RCOA), N.J.S.A. 2A:168A-1 to -6, to the licensing function of the New Jersey Racing Commission. In In re Disciplinary Proceedings Against Schmidt, 79 N.J. 344, 353 (1979), the Court refused to apply the RCOA to the liquor industry since, at least in part, that business had been dealt with by the Legislature in an exceptional way “because of its susceptibility to inherent evils.” That same pervasive control and concern are present here. The State has treated racing in a special way. Thus the constitutional prohibition against bookmaking or gambling was amended in 1939 to permit horse racing at which a parimutuel system of betting is permitted. N.J. Const. (1844), Art. IV, § VII, par. 2: see also NJ.Const. (1947), Art. IV, § VII, par. 2. No constitutional provision concerns the liquor industry. Moreover, the racing industry “entail[s] inher*12ent dangers and [is] clearly affected with a public interest.” Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 55 (1959). I would hold that the RCOA is inapplicable to the racing industry.
The majority distinguishes the New Jersey Racing Commission from the Alcoholic Beverage Control Commission because under the liquor statute a person convicted of a crime may, after the lapse of five years from the date of conviction, apply for an order removing the disqualification; there is no comparable provision in the racing law. That ground is nebulous at best for the racing
commission [has] full power to prescribe rules, regulations and conditions under which all such licenses are issued in the State of New Jersey and to revoke or refuse to issue a license if in the opinion of the commission the revocation or refusal to issue such a license is in the public interest .... [N.J.S.A. 5:5-33]
This section indicates that the Racing Commission has an even greater control over the racing industry than the Director has over the liquor business. Further, the Racing Commission could adopt a regulation containing the same substantive provision as exists in the liquor statute, N.J.S.A. 33:1-31.2. Since that power exists, the apparent distinction is simply apparent and not real.
Even if the Commission were subject to RCOA as the majority holds, the Commission should be given the opportunity to explain why Maietta’s application was denied. This it has never done.1 Even though the RCOA factors favor licensing, it has been our practice to allow the agency to exercise its statutory function in light of newly defined standards. Cf. Zigmont v. Board of Trustees, 91 N.J. 580 (1983) (remand pension application to Board of Trustees to apply stated factors); Dougherty v. Human Services Dep’t, 91 N.J. 1 (1982) (remand Medicaid appli*13cation to Commissioner of Department of Human Services to act on possible waiver); Texter v. Human Services Dep’t, 88 N.J. 376, 383 (1982) (remand to Commissioner of Department of Human Services to reevaluate income level set in regulation in light of deviation from statutory scheme and “the interest of justice”).
The Racing Commission has decided, through its rulemaking authority, to exercise strict control over the use of narcotics. N.J.A.C. 13:71-23.6; 13:71-23.12. In accordance with this decision, it adopted N.J.A.C. 13:71-23.14, which provides that: “Any person who has been convicted of possession or use of narcotics by any court in the land shall be denied a license or ruled off or both as the Commission may decide.” The Court has now determined that this regulation, N.J.A.C. 13:71-23.14, is invalid because of the statutory provisions of the RCOA. In this respect the Court’s judgment is similar to that in Texter. The Racing Commission may wish to restate the policy of that regulation consistent with the RCOA. I believe “that the appropriate judicial role is to defer to the legislative determination that the administrative agency should have the opportunity to review its regulations.” Texter, 88 N.J. at 387. The Court would be especially remiss to exercise the primary licensing function of the regulatory agency in a field as sensitive as gambling.2 The Court has granted such regulatory agencies broad discretion to protect the public interest. See also In re Boardwalk Regency Corp. Casino License, 90 N.J. 361 (1982) (questionable business associations can sustain basis for Commission’s denial of gaming license).
It may be that upon deliberation the Racing Commission will conclude that public confidence in racing can be sustained through careful licensing of former drug offenders in compli*14anee with the statutory scheme. The Court should leave individual decisions to the Racing Commission.
Justice O’HERN joins in this disposition but would hold the RCOA applicable to the New Jersey Racing Commission.
Under N.J.S.A. 2A:168A-2 the regulatory authority must explain in writing how eight enumerated factors “relate adversely” to the occupation for which the license is sought. Ante at 10. However, these are not exclusive and the Commission, accepting the Administrative Law Judge’s findings, could reasonably conclude that a license was not warranted.
In re Kallen 92 N.J. 14 (1983), restated the settled principle that it is the agency head who shall exercise the decisional power.