ALJDEC decisions subject to certification as final

20F-001-GAM · Department of Gaming · 2019-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 25, 2019, at 1:00 p.m. APPEARANCES: Darryll Ryan Adams (“Appellant”) failed to appear; the Arizona Department of Gaming (“the Department”) was represented by Kelly M. Wagner, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

FINDINGS OF FACT Appellant submitted an application for state certification to the Department. The Department sent Appellant a letter by certified mail to the address on his application, informing him of its intent to deny his application for certification. Appellant requested a hearing on the Department’s intended denial. The Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. On August 19, 2019, the Department issued an Amended Notice of Hearing, setting a hearing at OAH on September 25, 2019, at 1:00 p.m. The Department sent by certified mail a copy of the Notice of Hearing to Appellant at the address on his application. The Department appeared through its attorney, with the Department’s witness/party representative, for the duly noticed hearing. Appellant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Appellant additional travel time, Appellant did not appear, personally or through or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to establish his qualifications for certification. CONCLUSIONS OF LAW 1. The Amended Notice of Hearing that the Department mailed to Appellant at the address that he provided on his application was reasonable, and he is deemed to have received notice of the hearing.[1] 2. The Department has jurisdiction in this matter.[2] OAH conducts hearings on appeals from the Department’s decisions on certification.[3] 3. All tribal casinos, if they are to carry on Class III games, must have a Compact with the state in order to operate. The Department must enforce the Compact between the State of Arizona and participating tribes in Arizona.[4] 4. Section 5(f)(6) of the Department’s Compact with participating tribes in Arizona requires Appellant to establish that he is qualified to receive certification from the Department by clear and convincing evidence.[5] 5. Appellant, by failing to appear at the duly noticed hearing, failed to sustain his burden to establish by clear and convincing evidence that he is qualified to receive certification from the Department. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Arizona Department of Gaming dismiss Appellant Darryll Ryan Adams’ appeal and affirm its decision to deny Appellant’s 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, September 25, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Daniel H. Bergin, Director Arizona Department of Gaming ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. §§ 5-601 and 5-602. [3] See A.R.S. § 41-1092.07. [4] See 25 U.S.C. § 2701 et seq. [5] Cf. A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952), which require license applicants to establish their qualifications for licensure by a preponderance of the evidence.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826