On appeal from the Final Order of the Casino Control Commission.
Bischoff, King and Polow. The opinion of the court was delivered by Polow, J.A.D.
Shortly after commencing employment at Resorts International Hotel Casino in Atlantic City in April 1978, appellant Antonio Tufi filed his personal history disclosure form for licensure as a casino key employee. The Division of Gaming Enforcement (Division) investigated and recommended denial. Upon receipt of a notice of intention from the Casino Control Commission (Commission) to deny his licensure application, Tufi requested a hearing, which was conducted by an administrative law judge. Following a 14-day hearing, Judge Smith rendered his initial decision concluding that Tufi failed to demonstrate qualification for licensure. The Commission substantially affirmed Judge Smith, adopted his initial decision with some modification and denied Tufi's application. On this appeal it is contended that the determination of the Commission was erroneous and that appellant's license as a casino key employee should be granted.
Tufi, who was born in Italy in 1942, is currently classified as a permanent resident alien in this country by the Immigration and Naturalization Service. He completed the equivalent of grade school in his native land, took specialized training in hotel catering and, when he was 24 years old, attended a school for croupiers in England. Upon completion of that course of study, he was employed as a roulette croupier in the Bahamas where, during 15 years with Resorts Paradise Island Casino, he became adept in the operation of blackjack, roulette and craps. He ultimately supervised the operation of those games and accumulated substantial knowledge of the design and operation of slot machines. Most recently, Resorts sought to transfer him to its Atlantic City Casino as Director of Research and Development of Casino Equipment.
Among other things, the Division investigation was concerned with allegations that Tufi associated with alleged career offenders, in particular Dino Cellini, Eduardo Cellini and James Neal. The investigation also scrutinized the manner in which Tufi obtained his permanent alien registration visa, known as a "green card," issued on June 10, 1977. The Division contended that appellant gave fraudulent information in his application for the "green card." Since one of the grounds for its issuance was his investment of at least $10,000 in a business in this country, the investigation also inquired into all representations contained in his visa application, the bona fides of the business investment he relied upon therein and the sources and disposition of various amounts of cash appellant brought into the country from time to time.
Judge Smith rejected all allegations of alleged association with career offenders, misrepresentations on the "green card" application and lack of honest intent to go into business as represented. Nevertheless, denial of licensure was recommended. The administrative law judge determined that Tufi had knowingly lied to customs officials in July 1976 when he transported $37,000 in cash to Miami from the Bahamas for James Neal which he falsely claimed as his own money when passing through customs; that he knowingly violated federal law by deliberately failing to declare $11,000 in cash when he entered the country in May 1976, and that he deliberately lied to investigators of the Division about the true source of those funds and the circumstances surrounding their transportation into this country.
Tufi produced a number of character witnesses, including coemployees and Division and Commission personnel to vouch for his honesty, integrity and competence in casino gambling operations. However, they did not deal with the specific charges against him. On the other hand, Judge Smith and the Commission brushed aside seemingly damaging evidence concerning misrepresentations in Tufi's application for permanent resident status as well as the proofs concerning alleged associations
with individuals deemed undesirable by the terms of the statute. For example, the judge refused to rule on the charges relating to the manner in which the "green card" was obtained. He held that the issue of its validity was "not properly before me." Although the issue presented was not the validity of the "green card," it involved serious questions about the manipulations and distortions allegedly attributable to Tufi in pursuance of permanent visa status. Nevertheless, there is no appeal by the State. Hence, we do not deal with those issues.
Federal law requires disclosure of cash sums brought into the United States in excess of $5,000. 31 U.S.C.A. § 1101. Tufi now concedes that he failed to declare $11,000 which he brought into the country from the Bahamas in May 1976. He has given different accounts for his failure to comply with customs requirements. On one occasion he sought to rely on his misunderstanding of the language, and inexperience with American customs procedures. On another occasion he implicitly admitted his knowledge of the customs requirement by explaining that he did not declare the money because he brought it in more than one trip, not exceeding the $5,000 statutory maximum on any single occasion. Later, he admitted that version was false. The conclusion is inescapable that he lied to the investigator in order to conceal his noncompliance with federal law from the Division. Although the Commission in its final decision struck Judge Smith's finding that Tufi knowingly violated federal law when he carried in the $11,000, the determination that he deliberately lied to the investigator to conceal noncompliance with federal law was upheld.
The $37,000 incident is more damaging. In July 1976 Tufi carried $37,000 from the Bahamas to Miami. His supervisor in the Paradise Island Casino gave it to him to deliver to James Neal in Miami. He was instructed to declare it as his own when passing through customs. He followed these instructions despite his awareness, clearly evidenced by the record, that he was violating federal law. At the hearing he initially portrayed
the violation as inadvertent, the result of a misunderstanding on the part of customs officials. During the original investigation he had given sworn testimony to a Division investigator that the money was his own, saved from his salary and kept in a safe deposit box. The finding that appellant knowingly lied to customs officials is fully supported by substantial credible evidence in the record.
Tufi insists that his statements during the Division investigation regarding the transportation of the $11,000 and $37,000 were not willful misrepresentations, and even if they were, they were not misrepresentations of facts material to his qualification. Therefore, he asserts, the denial of his application was arbitrary and capricious. The State contends that Tufi attempted to conceal the true nature of the transactions and the true ownership of the money in order to avoid the risk that his association with Neal and the Cellinis might be revealed or his violations of federal law discovered.
The standard of review in considering an appeal from a Commission ruling is clearly enunciated in In re Boardwalk Regency , 180 N.J. Super. 324, 333 (App.Div.1981):
At the outset we observe that all parties agree, as do we, that with respect to the fact finding by the agency our obligation is set and our privilege of independence is limited by Mayflower Securities v. Bureau of Securities , 64 N.J. 85 (1973). Basically, we search to discover whether the findings of fact could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard for the opportunity of the Commissioners who heard the witnesses to judge of their credibility. Where expertise is a pertinent fact, we must accord due regard in that respect as well . . . [I]t is beyond cavil that in the review function the whole record must be considered. As is expressly pointed out in Mayflower, supra:
We also concur that we are "in no way bound" by the agency's interpretation of a statute or its determination of any strictly legal issue. Mayflower, supra at 93. Finally, the requirement that we defer to the expertise of the agency is only as compelling as is the expertise of the agency, and this ...