ALJDEC decisions subject to certification as final

18F-007-GAM · Department of Gaming · 2018-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

James John Jaeger,

State ID No. 58862,

Appellant.

No. 18F-007-GAM

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 16, 2018, at 9:00 a.m.

APPEARANCES: James John Jaeger (“Appellant”) appeared on his own behalf; the Arizona Department of Gaming (“the Department”) was represented by Deanie Reh, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about May 7, 2018, the Department issued a Notice of Intent to Deny State Certification to Appellant under Sections 5(f)(4), 5(f)(6), 5(f)(10), and 5(f)(12) of the Yavapai Prescott Indian Tribe/State of Arizona Compact. Appellant appealed the decision by the Department to deny his application for state certification.

Pursuant to A.R.S. § 41-1092.01, the Department referred the appeal to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on July 16, 2018. Appellant testified on his own behalf. The Department presented the testimony of William Harris, a Special Agent in the Department’s Employee Certification Unit, and submitted thee exhibits.

Hearing Evidence

On or about April 13, 2018, Appellant filed with the Department an Application for State Certification/Tribal License Recommendation (“the application for certification”) for the position of Card Dealer at Bucky’s Casino in Prescott, which is operated by the Yavapai Prescott Indian tribe.

Appellant disclosed on the application that he had been employed as a detention officer for the Yavapai County Sheriff’s Office (“YCSO”) between July 2007, and December 2016, but that he had been terminated for attempted use of a credit card. Appellant also disclosed that he had been charged with a criminal offense or arrested, but denied ever having been convicted of a felony. Appellant explained that he had been charged with a Class 6 Undesignated Felony in Prescott Justice Court, found guilty, and sentenced to serve 18 months’ probation, but that after he served eleven months of his probation, the probation was terminated in March 2018 and the Class 6 Undesignated Felony reduced to a misdemeanor.

Because Appellant did not provide a more detailed description of the criminal charge, court records, or the police report, the Department requested these documents from the Yavapai Prescott Indian Tribe.

Appellant’s detailed explanation of the event that led YCSO to terminate his employment as a detention officer and to charge him with having committed a Class 6 Undesignated Felony provided in relevant part as follows:

On December 16, 2016, I found a reloadable debit card lying on the ground in the parking lot of [YCSO].

I had changed into my civilian clothes after my shift as I was going to meet my wife to attend her employer Christmas party . . . . As I was crossing the parking lot the heel of my dress shoe broke off. When I bent down to check my shoe I saw the debit card. I put the card in my pocket and drove to Bucky’s Casino to pick up my wife from work. While I was waiting for her to finish work I decided to try the card in an ATM. I was shocked when the ATM dispensed $100.00. I panicked and threw the card away. I pocketed the $100.00.

On December 29, 2016, after arriving at work, I was questioned by Detective Dan Pritchard about the debit card. I explained to him about how I [was] in control of the debit card and at that time I was terminated and subsequently arrested for theft of debit card and fraudulent use of debit card. I was completely forthcoming with [the] investigator and admitted to the offense.

On April 3, 2017, I was sentenced to 18 months [’] probation for attempted theft of a credit card, which was a Class 6 Undesignated Felony in the superior Court of Arizona Yavapai County . . . . I was ordered to pay $121.12 in restituition, $1,259.50 in fines and fees and 90 hours community service.

On March 1, 2018, my probation officer . . . petitioned the court to terminate my probation after 11 months. [The judge] signed the order and it was ordered that my Class 6 Undesignated Felony be designated a misdemeanor.

Appellant testified consistently with his disclosure to the Yavapai Prescott Indian Tribe. On December 16, 2018, he found the debit card in the parking lot when he was leaving YCSO jail to attend his wife’s employer’s Christmas party at Bucky’s Casino, where his wife works as a pit boss. The biggest mistake in his life was pocketing and cashing out the debit card. It has cost him his job at YCSO and his house because he is now working for $10/hour at Sprouts. He apologized to the subject to whom the card belonged. Appellant testified that he had never done anything like this before and that he is not a malicious person.

YCSO’s Deputy Report for Incident 16-045821 (“the incident report”) provided that on December 12, 2016, inmate Nicholas Phinney was issued a debit card in the amount of $121.12. After Mr. Phinney was transported to a locked treatment facility (“Hillside”), it was discovered that he was not scheduled to be released to the facility until December 14, 2016. On December 14, 2016, Mr. Phinney again was transported from the YCSO jail to Hillside. Appellant was the detention officer who completed the permanent release for Mr. Phinney from the YCSO jail on December 14, 2016.

The incident report provided that Mr. Phinney eventually discovered he no longer had the debit card after he arrived at Hillside on December 14, 2016. His father contacted YCSO and learned that the debit card had been used on December 16, 2016, at about 1832 hours at an ATM in Bucky’s Casino. YCSO obtained a video from the Yavapai Prescott Tribal Police of the ATM and located footage of Appellant using the debit card at the ATM.

On December 29, 2016, YCSO questioned Appellant about his use of the debit card. He stated that he had found the card in the YCSO parking lot, that he knew what the card was, that the card did not belong to him, and that he had withdrawn $100.00 from the card at the ATM at Bucky’s Casino. Appellant stated that after he withdrew the money, he threw the card away in a trash bin at the casino.

Mr. Harris testified that crimes involving theft or moral turpitude are a concern to the Department when it is asked to certify a person to a tribe as being suitable to work in a casino. Mr. Harris explained that a casino is a work environment that operates on cash. Cash and gambling chips are exchanged on a card dealer’s table and may both be given as tips by patrons. Card dealers have been known to take for themselves from the table chips or cash that patrons did not intend to give as tips.

Mr. Harris pointed out that when Appellant filed the application for certification with the Department on April 13, 2018, only a little more than a month had passed since Appellant had been released from his sentence of probation for the crime of attempted theft of a credit card. In Mr. Harris’ opinion, more time is needed for Appellant to establish rehabilitation.

Appellant testified that he was not liked at YCSO because his sister-in-law, who has the same last name, had embezzled more than $20,000 from Yavapai County. He has no idea why he cashed out the debit card. He had a couple drinks at his wife’s employer’s Christmas party before he withdrew $100.00 from the debit card. He used the $100.00 to buy drinks or gamble at the party. He feels that the Department and YCSO are treating him unfairly because during the time he worked for YCSO as a detention officer, he had access to $25,000.00 cash bonds, but never took a cash bond. People employed by Bucky’s Casino are a close-knit family who look after one another. He just wants a chance.

The Department called the Administrative Law Judge’s attention to the YCSO incident report that summarized its officer’s January 13, 2017 interview with Larry Stine, a detention officer who worked with Appellant at YCSO, in relevant part as follows:

Stine told me while in the booking area on [December 14, 2016,] he saw an inmate debit card in [Appellant’s] desk. He said he asked [Appellant] what he was doing with the card, and was told something to the effect of, I just have it. Stine said he asked [Appellant] how much money was on the card and [Appellant] told him $121. Stine said he asked who the card belonged to. Stine then told me that he could not remember the exact words used but [Appellant] told him something about the inmate being in rehab or there was some reason that the inmate could not have it. Stine said [Appellant] asked what he should do with it. Stine said he then told [Appellant] about a time he found an inmate debit card in the parking lot at the Camp Verde Detention Center. He said the card he found was new and it had $90.60 on it. He said the card provided directions on how to cash it. He said he explained that he took the card to Sgt. Bora. Stine said his suggestion to [Appellant] was to find a family member and mail it to them or give it to a supervisor. Stine said [Appellant] made a comment about not wanting the money to go to waste. Stine said he thought [Appellant] was joking because [Appellant] is a joker. . . .

CONCLUSIONS OF LAW

If tribal casinos operate Class III games, they must have a Compact with the State of Arizona. Because the Department is charged with enforcing the Compact between the State of Arizona and the tribe, the Department has jurisdiction to resolve this matter. Hearings on appeals from the Department’s decisions are conducted through the Office of Administrative Hearings.

The Compact provisions that the Department cited in its Notices of Intent to Deny State Certification to Appellant provide as follows:

5(f) Grounds for Revocation, Suspension or Denial of State Certification. The State Gaming Agency may revoke, suspend or deny a State Certification when an Applicant or holder of certification:

. . . .

(4) Has been convicted of . . . or pleaded guilty to . . . willful failure to make required payment or reports to any tribal, state or United States governmental agency at any level, or filing false reports therewith, . . . or of any crime, whether a felony or misdemeanor, involving any Gaming Activity or physical harm to individuals or moral turpitude;

(5) Makes a misrepresentation of, or fails to disclose, a material fact to the State Gaming Agency or the Tribe or Tribal Gaming Office;

. . . .

(10) Has pursued or is pursuing economic gain in an occupational manner or context which is in violation of the criminal laws of any state if such pursuit creates probable cause to believe that the participation of such Person in gaming or related activities would be detrimental to the proper operation of an authorized gaming or related activity in this State. For purposes of this paragraph, occupational manner or context shall be defined as the systematic planning, administration, management or execution of an activity for financial gain;

. . . .

(12) Is a Person whose prior activities, criminal record, if any, reputation, habits and associations pose a threat to the public interest of the Tribe or the State or to the effective regulation and control of Class III Gaming, or creates or enhances the dangers of unsuitable, unfair or illegal practices, methods and activities in the conduct of Class III Gaming, or the carrying on of the business and financial arrangements incidental thereto . . . .

Appellant must establish that he meets the standards set forth in the gaming compact by clear and convincing evidence. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”

Appellant acknowledged that he was convicted of attempted theft of a credit card and that he converted $100.00 on the inmate’s debit card to his own use on December 16, 2016, after he allegedly found the card in the parking lot of YCSO. Cause therefore exists for the Department to deny his application for certification under Sections 5(f)(4), 5(f)(6), 5(f)(10), and 5(f)(12) of the gaming compact.

The Department’s certification to work in a tribal gaming facility is a privilege, not a right. Even though cause may exist to deny a license application, however, once a Class 6 Felony has been redesignated a misdemeanor, an applicant may establish that he is rehabilitated, has reestablished good character, and no longer poses a threat to the public. The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted:

No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant . . . , a judgment of which it may be said as it was of “many honest and sensible judgments” in a different context that it expresses “an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth.” . . .

Once good character is shown to be absent, it is not automatically regained by the mere passage of time and positive and affirmative activities are required for a person to regain what was lost.

Among the factors that may be considered in determining rehabilitation are the nature of the criminal offense, the length of time that has elapsed since the offense was committed, and evidence of subsequent positive actions.

A little more than a month after Appellant was released from probation and the court redesignated his felony as a misdemeanor, he submitted his application for certification. Appellant has no explanation for why he converted the funds on the inmate’s debit card to his own personal use and has provided no reason why the Department should not be concerned that he might commit a similar offense as a card dealer at Bucky’s Casino who has even more access to patrons’ and his employer’s cash and chips. Neither Appellant nor anyone else testified to any changes that Appellant has made in his life that would make a future similar incident unlikely. Appellant continues to blame others for the difficulties in his life. YCSO’s report of Mr. Stine’s account of seeing the debit card on Appellant’s desk at YCSO raises even more concerns. At this time, Appellant has not established that he is sufficiently rehabilitated to be qualified to receive State Certification from the Department to work in a tribal gaming facility as a card dealer.

RECOMMENDED DECISION

Based on the foregoing, the Administrative Law Judge recommends that on the effective date of the Order, the Department dismiss James John Jaeger’s appeal and affirm its decision to deny his application for certification.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, July 23, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Daniel H. Bergin, Director

Department of Gaming