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Dunston v. Department of Law & Public Safety

Decided: April 10, 1990.

DORIS DUNSTON, PETITIONER-APPELLANT,
v.
DEPARTMENT OF LAW & PUBLIC SAFETY, DIVISION OF GAMING ENFORCEMENT, RESPONDENT-RESPONDENT, AND CASINO CONTROL COMMISSION, AGENCY-RESPONDENT



On appeal from the Department of Law & Public Safety, Division of Gaming Enforcement, Casino Control Commission.

Pressler, Long and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

Petitioner Doris Dunston, employed in the casino industry as a public area worker, that is, a cleaning lady in the gaming rooms, appeals from a decision of the Casino Control Commission denying her application for renewal of her casino employee license pursuant to the Casino Control Act, N.J.S.A. 5:12-1, et seq. We reverse, having concluded that the Commission acted arbitrarily in determining that petitioner had not demonstrated sufficient rehabilitation to overcome the onus of an otherwise disqualifying incident.

The relevant factual background is recited in the initial decision of the administrative law judge (ALJ), issued in June 1989. Petitioner started working in the casino industry in 1981 as an employee of United Company, an independent contractor retained by Bally's Park Place Hotel and Casino to clean the casino's gaming areas. In 1982 or 1983, she became a direct

employee of Bally's, licensed by the Commission. The incident in question occurred in April 1985. Petitioner, whose job it was to clean the floor in the slot-machine area on the midnight to 8:00 a.m. shift, came upon a Bally's plastic cup containing 63 one-dollar chips. She took it. Eventually a patron complained. When first asked about it, petitioner denied the taking. Later she admitted it, claiming that the cup was unattended and she believed it to have been abandoned. She also claimed that she had been instructed by United Company that the rule of "finders-keepers" applied to minor items and that she believed this to be Bally's rule as well. In any event, the property, which petitioner had asked a friend to place in her locker for her, was returned to the patron, and no criminal charges were ever filed against her. She was, however, asked to resign and did so. Following that resignation she found similar employment at Claridge Hotel and Casino, where she was still employed more than four years later when the final determination here was rendered.

Based on the foregoing facts, the Division of Gaming Enforcement opposed petitioner's licensure claiming that she was disqualified from relicensure pursuant to both N.J.S.A. 5:12-86(g) and N.J.S.A. 5:12-90(b). N.J.S.A. 5:12-86 lists a series of disqualification criteria. Subsection (c)(1) disqualifies a person who has been convicted of the crimes therein set forth, including all first degree crimes and specified second and third degree crimes. Subsection (c)(2) disqualifies a person who has been convicted of any other offense under state or federal law unlisted in (c)(2) "which indicates that licensure of the applicant would be inimical to the policy of this act and to casino operations. . . ." Subsection (g) disqualifies a person from licensure based on the commission of conduct prescribed by (c)(1) and (c)(2) even though that conduct was not prosecuted. N.J.S.A. 5:12-90(b), the second provision on which the Division relied, requires every applicant for a casino employee license to meet the qualification criterion of N.J.S.A. 5:12-89(b) for key

employees, namely, to demonstrate "by clear and convincing evidence the applicant's good character, honesty and integrity."

To complete the statutory picture, we point out two additional relevant legislative provisions. First, N.J.S.A. 5:12-90(h), mirroring the provisions of the Rehabilitated Convicted Offenders Act (RCOA), N.J.S.A. 2A:168A-1, et seq., provides that disqualification imposed by N.J.S.A. 5:12-86 may be avoided if the applicant "affirmatively demonstrated his rehabilitation." Subsection (h) then lists factors, substantially similar to those listed in the analogous RCOA section, N.J.S.A. 2A:168A-2, which are to be taken into account in the rehabilitation determination. Finally, N.J.S.A. 5:12-91(e) authorizes the Commission to "waive any disqualification criterion for a casino hotel employee consistent with the public policy of the act and upon a finding that the interests of justice so require."

Applying the relevant statutory provisions to the facts, the ALJ first concluded, with respect to the criminal-conduct disqualification, that petitioner was not disqualified by conduct constituting a theft in violation of N.J.S.A. 2C:20-3 but by conduct constituting an unsworn falsification in violation of N.J.S.A. 2C:28-3(b). He declined to find that petitioner's conduct had amounted to a theft because he apparently believed that "she had found the cup of tokens unattended in the slot area," and moreover, that

Bally's policy as to such "found money" was unclear at best and the petitioner credibly claims that she was still under the informal "finders-keepers" practice of the United Company.

The ALJ did, however, conclude that petitioner was guilty of a violation of N.J.S.A. 2C:28-3(b), a disorderly person's offense, by reason of her initial false statements to the casino security personnel denying that she took the cup. Nevertheless, the ALJ concluded that that conduct should not be disqualifying because she had ...


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