ALJDEC

97A-021-GAM · Department of Gaming · 1998-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 1998. APPEARANCES: The Appellant, Joseph James Sackerman, did not appear. The Department of Gaming (“Department”) was represented by Assistant Attorney General Shirley J. Wahl ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

The commencement of the scheduled hearing was delayed for approximately thirty minutes to allow for the late arrival by the Appellant. Appellant did not appear during any portion of the hearing. When the hearing was convened evidence and testimony were presented and, based upon the entire record in this, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant did not present any evidence at the hearing in support of his appeal of the Department’s prior denial of his application for permanent State Certification. 2. The Tonto Apache Tribe (“Tribe”) and the State of Arizona, in accordance with the Indian Gaming Regulatory Act of 1988, entered into by the Tonto Apache Tribe and State of Arizona Gaming Compact of 1993 (“Compact”) for the purposes of governing Class III Gaming Activities conducted within the jurisdiction of the Tribe. 3. The Compact requires that every gaming employee shall be licensed by the Tribe. Non-members of the Tribe shall also be certified by the Department prior to commencement of employment and annually thereafter. 4. Appellant is not a member of the Tribe. 5. On May 30, 1997, Appellant submitted an Application for State Certification/Tribal License Recommendation to the Department. Appellant signed the application under oath. 6. Appellant’s application stated that he was applying for a food server position at the Tribe’s gaming facility. 7. The application for state certification asks the following question: “Have you ever been arrested, detained, charged, indicted or summoned to answer for any criminal offense or violation for any reason whatsoever (except MINOR traffic violations), regardless of the disposition of the event? Appellant answered the question in the affirmative. Appellant explained that he had been charged with theft, which turned out to be a misunderstanding. He stated that the charge had been settled out of court. No other criminal activity was disclosed by Appellant. 8. By letter dated July 21, 1997, the Department advised the Tonto Apache Tribal Gaming Office that it had issued Temporary State Certification number 15505 to Appellant based upon the background investigation undertaken to that date and the information disclosed in Appellant’s application. Permanent certification depended upon the results of the full background investigation performed by the Department. 9. Appellant was hired by the Tribe’s gaming facility on June 17, 1997, prior to the Department’s issuance of the temporary certification to him. 10. On or about January 12, 1963, Appellant was arrested by the Hialeah Police Department and charged with one count of gambling. 11. On or about January 21, 1963, Appellant was sentenced on the gambling charge to a fine of $25.00 or 3 days in jail. 12. Appellant is found to have failed to disclose his arrest and conviction on the gambling charge in his application for state certification submitted to the Department. 13. On or about January 24, 1970, Appellant was arrested by the Miami Springs Police Department on two charges: charge 1- Disorderly Conduct by Known Burglar Loitering in a Public Place; and charge 2- Fail to Register with City as Felon. The disposition of those charges is unknown. 14. Appellant is deemed to have failed to disclose his arrest by the Miami Springs Police Department in his application for state certification submitted to the Department. 15. It is determined that Appellant did properly disclose his arrest on a charge of Grand Theft by Embezzlement. That matter was dismissed with a condition that Appellant pay restitution to the victim. 16. By letter dated December 16, 1997, the Department notified Appellant of the denial of his application for permanent State Certification. The basis for the Department’s denial was Appellant’s failure to fully disclose his criminal history. 17. Appellant appealed the Department’s denial of his application for permanent State Certification. 18. Appellant’s failure to disclose his complete criminal history in his application for state certification demonstrates a willful disregard for compliance with gaming regulatory authority vested in the Tribe and the State of Arizona. 19. Appellant is a person whose prior activities and criminal record pose a threat to the interest of the Tribe, the State and to the effective regulation and control of Class III gaming.

CONCLUSIONS OF LAW

1. Appellant, by his default in appearance at the hearing, failed to sustain the required burden of showing cause why the Department’s denial of his application for permanent State Certification should be reconsidered. 2. The evidence of record is adequate to establish that Appellant has violated the provisions of Section 5(f)(1), (3), (4), (5), (6) and (12) of the Tonto Apache Tribe and State of Arizona Gaming Compact of 1993. 3. Appellant’s administrative appeal of the Department’s denial of his application for permanent State Certification should be denied.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Appellant’s appeal in this matter be dismissed and that the Department of Gaming’s prior denial of Appellant’s application for State Certification should be upheld and affirmed.

Done this day, March 4, 1998

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Gary A. Husk, Director Department of Gaming 202 East Earll Drive, Suite 200 ATTN: Linda Lairson Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826