November 18, 2008
APPLICATION OF DANA V. WHITE FOR RENEWAL OF A CASINO EMPLOYEE LICENSE
On appeal from the State of New Jersey Casino Control Commission, 07-0003-ER.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 23, 2008
Before Judges Winkelstein and Fuentes.
Dana White appeals from the Casino Control Commission's (the Commission) December 12, 2007 decision denying her application to renew her casino employee license. We affirm.
Appellant was issued a casino employee license on March 13, 1995. In 2002, the New Jersey Division of Gaming Enforcement (the Division) recommended that her application to renew her license be denied, listing what it considered to be negative information related to her character. That information included a May 2, 1996 conviction for shoplifting. In addition, appellant was charged in May and June 1998 with a number of offenses arising out of physical altercations she had with her sister. All charges were subsequently dismissed, although her sister obtained a restraining order against her. The Division further reported that in July 2000, appellant was found not guilty of aggravated assault and contempt of a court order, and in March 2001, she was charged with, but acquitted of, shoplifting.
The incident that led the Commission to deny appellant's application to renew her license occurred on April 2, 2003. At that time, appellant was receiving unemployment benefits and had applied for welfare benefits and financial assistance from social organizations. Eviction from the apartment where she lived with her daughter was imminent. On that date, appellant received a check in the mail from the Benedictine Sisters of Elizabeth. The check was payable to "Pitney Painting Co. Inc.," in the amount of $1943.05. The check had a notation in the bottom left corner that read, "Invoice 2162." Appellant endorsed the check with her signature and deposited it into her credit union account. When the check cleared two days later, she withdrew $1,950 from her account.
The check had mistakenly been delivered to appellant at 107 Whalers Drive in Absecon. The intended recipient was Pitney Painting at 107 Hickory Avenue in Absecon, a business with whom appellant has never been affiliated.
On September 24, 2003, appellant was indicted in Atlantic County for theft of property lost, mislaid, or delivered by mistake, in violation of N.J.S.A. 2C:20-6. On November 21, 2003, she became employed at Showboat Casino Hotel as a dealer. On December 5, 2003, she was admitted into the Pretrial Intervention Program (PTI), which required that she perform fifty hours of community service, pay $125 in court costs and fines, and pay full restitution of $1,943.05. Upon completion of PTI, the indictment was dismissed.
On October 26, 2005, appellant filed an application to renew her casino employee license. The Division filed a report recommending that the Commission deny the application.
Following a hearing, the Commission denied her casino license renewal, but permitted her to be employed in a non-credential hotel position.
At her hearing before a Casino Control Commissioner who was acting as a hearing examiner, appellant explained that she did not notice to whom the envelope containing the check was addressed; nor could she decipher to whom the check was made out. She admitted, however, that the name on the check did not appear to be hers. Despite having never been affiliated with the Benedictine Sisters of Elizabeth, appellant testified that she believed that she received the check as a gift. She stated, "I believed it was a gift. What are the chances of something like that coming to my front door when I'm three days from being evicted?" She continued: "And I believe that . . . you could put a million names on [the check]. I believe it came from a million people who said that I deserved a gift. I deserve not to be homeless and not to be [un]able to feed my daughter."
At the hearing, appellant presented the following evidence of her rehabilitation: successful completion of PTI; no reported negative information from her employment at Showboat; several recommendations from supervisors at Showboat; letters from her cousin, a friend and two co-workers attesting to her honesty; she made Dean's List at Villanova University and was inducted into Phi Theta Kappa for her academic achievements; she was nominated to join the International Mission on Diplomacy because of her "exemplary leadership and outstanding academic performance"; and she was selected by her fellow dealers as a member of the "tote" committee.
Finding implausible appellant's claim that she believed that the check was a gift intended for her, the hearing examiner made the following findings:
While there might be some possibility that [appellant's] testimony is believable, the written evidence of the check itself, as well as the deposit slip, makes me conclude that [her] story is just not plausible. The check clearly is payable to Pitney Painting Company and the odd amount of the check, i.e. $1,943.05, makes it likely that it is not a gift to [appellant] or anyone else. I could imagine that a charity may make a gift of $1,000, $1,500, $1,800 or $2,000 but not an odd amount like $1,943.05. [Appellant] had to write the amount of the check three times on the deposit slip (Exhibit D-4) after seeing that amount on the face of the check. [She] deposited the check to her own checking account and knew what 'pay to the order of' means. I just cannot find [her] story plausible.
Additionally, I cannot accept [appellant's] testimony that she did not know to whom the envelope was addressed because it is not in accord with common human experience. If you open an envelope by mistake and find that it contains a check payable to a painting company, you would naturally take a look at the envelope that the check came in to determine who was the addressee. [Appellant's] explanation defies common sense and is not credible to me.
The hearing examiner found that "[appellant] knew the intended recipient of the check and by her actions, clearly intended to deprive said owner of the money." The hearing examiner concluded that her conduct constituted theft of property delivered by mistake, in violation of N.J.S.A. 2C:20-6, an offense disqualifying her from casino employee licensure.
With regard to her rehabilitation, the hearing examiner stated, "[The] positive evidence . . . is outweighed by my conclusion that [appellant's] testimony has not been plausible and credible. Plainly stated, I do not believe her testimony." He continued: "The evidence that leads me to conclude that [appellant] has not established her rehabilitation also compels the conclusion that she has not provided clear and convincing evidence of good character, honesty and integrity." The Commission adopted the hearing examiner's findings and conclusions.
Against this background, we turn to appellant's first argument, that our scope of review is de novo. We reject that argument. Judicial review of administrative agencies' actions is limited. In re Taylor, 158 N.J. 644, 656 (1999). We will not upset the determination of an agency unless it was arbitrary, capricious or unreasonable; or it violated legislative policies expressed or implied in the act governing the agency; or the findings on which the decision is based are not supported by the evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
The Commission's decision depended on its interpretation of the Casino Control Act and its concomitant regulations in the context of the evidence adduced at appellant's hearing. See Campione v. Adamar Inc., 155 N.J. 245, 264 (1998); Muise v. GPU, Inc., 332 N.J. Super. 140, 160 (App. Div. 2000) (deference to an agency is appropriate when "to deny the agency's power to resolve the issues in question would be inconsistent with the statutory scheme which vested the agency with the authority to regulate [the] industry or activity it oversees"). It is therefore entitled to our deference. Applying that deference, we conclude that appellant's arguments are without merit.
The Casino Control Act disqualifies casino employee applicants based upon:
[t]he commission by the applicant . . . of any act or acts which would constitute any offense under subsection c. of this section, even if such conduct has not been or may not be prosecuted under the criminal laws of this State or any other jurisdiction or has been prosecuted under the criminal laws of this State or any other jurisdiction and such prosecution has been terminated in a manner other than with a conviction.
Theft of Property, pursuant to N.J.S.A. 2C:20-6, is a disqualifying offense under subsection c. N.J.S.A. 5:12-86c. According to the plain language of N.J.S.A. 5:12-86c, conduct constituting criminal offenses enumerated within that section warrant disqualification even if the applicant is acquitted of criminal charges for that offense. Thus, when evaluating the facts that led to criminal charges, the Commission comes to its own conclusion as to whether the applicant committed the offense, even if the charges were dismissed. It then exercises its own discretion regarding the suitability of applicants who have committed the offense, even in the absence of a criminal conviction. In exercising that discretion, the Commission evaluates the evidence under the preponderance of the evidence standard. N.J.A.C. 19:42-2.8(a) (requiring the Division to establish disqualification pursuant to section 86 of the Casino Control Act by a preponderance of the evidence); see also In re Polk, 90 N.J. 550, 560-61 (1982) (where the burden of proof for revocation of a doctor's medical license was preponderance of the evidence); Atkinson v. Parsekian, 37 N.J. 143, 149 (1962) (observing that: "[i]n proceedings before an administrative agency, . . . it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt.").
Here, the Commission determined, by a preponderance of the evidence, that appellant committed the offense enumerated in N.J.S.A. 2C:20-6. That statute states:
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.
The record supports the Commission's decision. Appellant came into control of a check made out to Pitney Painting Company and converted that check to her own use. Although appellant testified that she did not notice to whom the envelope containing the check was addressed, nor could she decipher to whom the check was made out, she admitted that the name on the check did not appear to be hers. She further asserted that despite having no affiliation with the issuer of the check, the Benedictine Sisters of Elizabeth, she believed that she received their check as a gift.
The hearing examiner rejected appellant's defense and found that she knew the check was not intended for her. He found that the check was clearly made out to Pitney Painting Company, and the odd amount of the check precludes any reasonable belief that it was a gift. The hearing examiner found that "[appellant] knew the intended recipient of the check and by her actions, clearly intended to deprive said owner of the money." Put simply, the hearing examiner concluded that appellant was not being truthful when she expressed a belief that the check was a gift. That finding was supported by the record, and it is not for this court to substitute its independent judgment for that of the agency under those circumstances. In re Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974).
Appellant has not demonstrated that the agency's decision was arbitrary, capricious or unreasonable. Campbell, supra, 39 N.J. at 562. The Casino Control Act does not require criminal conduct for license disqualification. N.J.S.A. 5:12-86g. The Commission is charged with the responsibility of protecting the casino industry's integrity and the public's confidence in the industry. Dunston v. Dep't of Law, 240 N.J. Super. 53, 60 (App. Div. 1990). That is what occurred here.
Appellant claims that Dunston supports her position. We disagree. In Dunston, while working on the casino floor, the petitioner, a cleaning person in the gaming rooms, found a cup containing sixty-three one-dollar chips and took it. Id. at 56. After a patron complained and the petitioner was questioned, she denied taking the cup. Ibid. She later confessed, but claimed that she had only taken it because she thought it had been abandoned and that the "finders-keepers" rule applied at the casino. Ibid. She returned the chips to the patron and no criminal charges were filed. Ibid.
An administrative law judge determined that the petitioner had committed a disqualifying offense pursuant to N.J.S.A. 5:12-86. Id. at 57. He believed, however, her testimony that she happened upon the cup and reasonably believed that she was entitled to keep it under the concept of "finders keepers." Ibid. The judge found that the petitioner experienced a momentary lapse in judgment, and she had an otherwise perfect employment record. Id. at 57-58. Consequently, he determined that she demonstrated adequate rehabilitation. Ibid.
The Commission reversed. Id. at 58-59. On appeal from the Commission's decision, this court found that its decision was arbitrary, as the petitioner had admitted to the improper conduct and had demonstrated an exemplary record before and after that singular incident. Id. at 61.
The facts in Dunston are inapposite to those here. The petitioner in that case cleaned casino gaming rooms. Here, appellant is a dealer. She has direct interaction with the patrons, their money, and the casino's money. Additionally, here, the Commission did not find that appellant reasonably believed the check was for her. On the contrary, the hearing examiner believed that she knew the check was not payable to her but nevertheless kept the proceeds for herself. Thus, where, in Dunston, the judge found that the petitioner's testimony was honest and credible, the Commission here did not make similar findings. After weighing the factors for rehabilitation, the Commission found that appellant's dishonest testimony outweighed her financial hardships and subsequent academic and professional achievements. This court owes deference to that determination.
The Casino Control Act requires that "[e]ach applicant for a casino key employee license . . . produce such information, documentation and assurances as may be required to establish by clear and convincing evidence the applicant's good character, honesty and integrity." N.J.S.A. 5:12-89b(2). The Commission found that appellant did not satisfy the test and the record supports that finding.
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