Brown v. Office of the Dir. of Regulation, (2024)

• Docket Number: GDTC-AA-23-104-JAM
• Decision Date: 15 April 2024
• Citation: 7 G.D.R. 97
• Parties: JOSHUA BROWN v. OFFICE OF THE DIRECTOR OF REGULATION
• Court: Mohegan Gaming Disputes Court

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7 G.D.R. 97

JOSHUA BROWN v. OFFICE OF THE DIRECTOR OF REGULATION

No. GDTC-AA-23-104-JAM

Mohegan Gaming Disputes Court

April 15, 2024

SUMMARY

The Office of the Director of Regulation revoked the Plaintiff's gaming license as a result of his arrest on numerous charges, including violation of a restraining order and vandalism, activities directed at his ex-girlfriend and her boyfriend.The Plaintiff, a server at a non-Tribal restaurant at Mohegan Sun Casino, challenged the revocation on grounds that it was not supported by substantial evidence.The Gaming Disputes Trial Court, MacNamara, J., upheld the revocation, finding that it was based not only on the arrest warrant affidavit but also on the Plaintiff's admissions and voluntary statement admitting to criminal activity.

M John Strafaci, Esq. for the Plaintiff

David Luty, Esq. for the Defendant

MEMORANDUM OF DECISION

FULL TEXT, McNamara, J.

I.FACTUAL BACKGROUND

The Plaintiff, Mr. Joshua Brown, was employed as a server at Tao Restaurant, a non-tribal restaurant, located on the Mohegan Sun Property.As a requirement of employment, the Plaintiff held a Mohegan Tribal Gaming Commission("MTGC") license issued by the Office of the Director of Regulation.

An investigation by the Office of the Director of Regulation revealed that on January 13, 2023, the Plaintiff was arrested by the Connecticut State Police and charged with two counts of stalking in the First Degree, two counts of Criminal Violation of a Restraining Order, two counts of Reckless Endangerment in the Second Degree and two counts of Breach of Peace in the Second Degree.The arrest warrant application which was introduced as an exhibit in the show cause hearing, detailed the alleged acts that ultimately led to the Plaintiff's arrest.

It was alleged that the Plaintiff dropped nails and screws onto a public road near the residence of his exgirlfriend's boyfriend, vandalized his ex-girlfriend's car and violated a protective order issued against him.

As part of the Office of the Director of Regulations investigation, the Plaintiff was interviewed and asked to provide a signed written statement.The Plaintiff was asked in that interview to describe the incident which resulted in his arrest, who was involved, and where the alleged conduct took place.At the time of said interview, the Plaintiff had not yet appeared in court and had not yet reviewed the arrest warrant application.He responded that the incidents involved his former girlfriend but did not provide details of the actual conduct that lead to his arrest.

On February 3, 2023, the Office of the Director of Regulation conducted a second interview with the Plaintiff.The Plaintiff had not seen the arrest warrant application and was asked specific questions regarding the various charges levied against him by the State of Connecticut.He admitted to placing the nails and screws in the road and letting air out of his ex-girlfriend's tires.He denied the other allegations contained in the arrest warrant application.The Plaintiff did not have counsel present at either interview.

On February 10, 2023, MTGC hand-delivered a letter to the Plaintiff requiring him to appear before the MTGC for a show cause hearing scheduled for February 22, 2023.

The letter stated that the Plaintiff engaged in conduct that resulted in the Connecticut State Police charging him with two counts of stalking in the First Degree, two counts of Criminal Violation of a Restraining Order, two counts of Reckless Endangerment in the Second Degree and two counts of Breach of Peace in the Second Degree.Said letter also stated that on or about January 31, 2023, the Plaintiff was untruthful during an official investigation conducted by the Office of the Director of Regulation.It further stated that such conduct posed a threat to the public interest, to the interest of the Mohegan Tribe and/or to the effective regulation of gaming.

On February 22, 2023, the Office of the Director of Regulation conducted a show cause hearing relative to the Plaintiff's arrest.The MTGC introduced evidence that the Plaintiff was arrested on January 13, 2023 and charged with offenses as alleged by the arrest warrant.The MTGC called Suzette Strickland, the investigator who interviewed the Plaintiff, to testify and introduce copies of the statement she obtained from the Plaintiff.Ms. Strickland testified that the Plaintiff was untruthful during his first interview because he failed to give a full statement of each allegation contained in the arrest warrant.

Following said hearing, the MTGC's Hearing Officer made the following conclusions of Fact and Law:

'1.Mr. Brown's conduct violates the following provisions: Mohegan Code 2-69(a)(2).That the person shall be of good character, be honest, and have integrity;Licensing of Employees "Regulation" Section3(D)(vi), that the person has engaged in conduct which can be found to be a violation of either a department policy or procedure or a Standard of Operation of Management including but not limited to Mohegan Sun Policy 27 (2a), as promulgated by the Director of Regulation pursuant to the Section 7(a) of the Tribal-State Compact;Section 3 E(i), the person has conducted himself in a manner that is analogous to a felony under Connecticut or other State or Federal law;Section 3 E(ii)(30) and/or (34), that the person has conducted himself in a manner analogous to an offense under Connecticut or other State or Federal law which would be inimical to gaming operations, including but not limited to stalking and/or reckless endangerment;Section 3 (D)(vii), the person is untruthful in an official investigation conducted by the Office of the Director of Regulation.

2.Mr. Brown is employed as a waiter at TAO Restaurant at Mohegan Sun.Mr. Brown routinely works with the public at Mohegan Sun.Mr. Brown handles food and beverages served to Mohegan Sun Patrons.Mr. Brown has access to the back of house areas at Mohegan Sun.I find through all the evidence that Mr. Brown's conduct was unrelenting, malicious, and knowing.His behavior put the safety of the general public in jeopardy.He repeatedly did not think about how his conduct could affect the general public.His conduct poses a threat to the public interest of the Mohegan Tribe.He was untruthful in a MTGC investigation.A person in a position of waiter must be a person who would not act with malice, as it could put patrons at risk while handling food and beverages that will be ingested.The back of house areas must remain secure.His outright lie to the MTGC makes it difficult for MTGC to regulate.'

The Hearing Officer, Gregory Bursell, ordered the Plaintiff's license to be revoked due to his conduct.

The Plaintiff now appeals to this Court challenging the revocation of his gaming license.

II.STANDARD OF REVIEW

This appeal of a final agency decision is taken pursuant to MTC Section 3-221 et seq. Section 3-224, which sets forth the procedure in this Court and the standard of review as follows:

'(i) The appeal shall be conducted by the Court without a jury and shall be confined to the record.If alleged irregularities in procedure before the Agency are not shown in the record, or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the Court.The Court upon request, shall hear oral argument and receive written briefs.

(j)The Court shall not substitute its judgment for that of the Agency as to the weight of the evidence on questions of fact.The Court shall affirm the decision of the Agency unless the Court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, interferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the Agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

If the Court finds such prejudice, it shall sustain the appeal, and if appropriate, it may render a judgment under subsection (k) of this section or remand the case to the Agency for further proceedings in accordance with its ruling.For purposes of this Section, a remand is final judgment.'

If there is substantial evidence in the record to support the decision, it must be upheld."Nevertheless, the Court may not affirm an administrative decision if substantial rights of the Plaintiff have been prejudiced......Moreover, gaming licenses cannot be revoked without a hearing that comports with procedural due process ...."Culley v. ODR,3 G.D.R. 28, 31(2006).

The standard for revocation of an employee's gaming license requires that the Gaming Commission prove that the employee's "prior activities, criminal record, reputation, habits and associations pose a threat to the public interest or the interest of the Tribe or to the effective regulation and control of gaming, or create or enhance the dangers of unsuitable, unfair or illegal practice in the conduct of gaming."Davidson v. Director of Regulation,3 G.D.R. 2(2005), citingDzwiewski v. Office of Director of Regulation,2 G.D.R. 100(2004).

The Plaintiff bears the burden of proving that the Director's decision was clearly erroneous in view of the reliable probative and substantial evidence on the whole record.Kochachy v. Office of the Director of Regulation,1 G.D.R. 115, 117(2003)."The question is not whether the trial court would have reached the same conclusion but whether the record before the administrative...