--- Am. Tribal Law ----, 2024 WL 1673196 (Mohegan Gaming Trial Ct.)
Only the Westlaw citation is currently available.
Mohegan Gaming Disputes Trial Court.
 
Joshua BROWN
v.
OFFICE OF the DIRECTOR OF REGULATION
 
7 G.D.R. 97
|
GDTC-AA-23-104-JAM
|
April 15, 2024

 

MEMORANDUM OF DECISION

McNamara, J.

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.

 

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 ex-girlfriend’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” Section 3(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, 6 Am. Tribal Law 605 (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. 1, 6 Am. Tribal Law 568 (2005), citing Dzwilewski v. Office of Director of Regulation, 2 G.D.R. 100, 5 Am. Tribal Law 355 (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, 4 Am. Tribal Law 522 (2003). “The question is not whether the trial court would have reached the same conclusion but whether the record before the administrative agency supports the action taken.” Hospital of St. Raphael v. Commission on Hospitals and Health Care, 182 Conn. 314, 318, 438 A.2d 103 (1980).

 

III. DISCUSSION

The Plaintiff claims the Defendant’s decision to revoke his gaming license should be reversed for the following reasons:

I. There is not substantial evidence in the record to support the Defendant’s findings and conclusions that the Plaintiff engaged in a pattern of malicious behavior that started on July 13, 2022 and continued for approximately six (6) months.

II. There is not substantial evidence in the records to support the Defendant’s findings and conclusions that the Plaintiff knowingly and intentionally lied during the MTGC’s first interview.

III. The Defendant’s conclusion that the Plaintiff engaged in “activities, criminal conviction, reputation, habits and/or associations that pose a threat to the effective regulation of gaming or create or enhance the chance of unfair or illegal practices, methods and activities in the conduct of the gaming activities of which posed a threat to the public interest were clearly erroneous, and not supported by substantial evidence and prejudiced the Plaintiff.

IV. The Defendant’s decision was arbitrary and capricious and represented an abuse of discretion.”

It is the Defendant’s contention that the decision to revoke the Plaintiff’s commission license was not based solely on the arrest warrant affidavit but on the Plaintiff’s course of conduct and his untruthfulness when interviewed by the investigator.

Section 3(A)(ivi) of the Mohegan Tribe, Director of Regulation, Regulations re: Licensing of Employees states that a person’s license may be revoked, “when the person’s prior activities, criminal record, or reputation, habits, and associations pose a threat” to the public interest or to the interest of the Mohegan Tribe. Sec. 3(E) (ivii) of the ODR Licensing Regulations states that, “in accordance with subsection 3(A) of the regulations, a person’s license may be revoked when he has engaged in conduct “analogous to” either any felony of any kind, or any misdemeanor offense which would be inimical to gaming operations.

This section of the ODR Licensing Regulations contains a list of misdemeanor offenses that would qualify for revocation, and stalking and reckless endangerment are contained in said list.

The law is clear that a mere arrest, without evidence of a conviction or independent evidence to support the underlying charges, is not sufficient to allow the Gaming Commission to revoke a gaming license. Flexer v. Office of the Director of Regulation, 3 G.D.R. 136, 7 Am. Tribal Law 488 (2008). The probable cause standard requires less proof than proof by a preponderance of the evidence, which is the standard of proof required in this case. Odgers v. Office of the Director of Regulation, 4 G.D.R. 10, 10 Am. Tribal Law 115 (2009).

Therefore, this Court must determine if there is other reliable, probative and substantial evidence on the whole record which meets the preponderance of the evidence test.

The Plaintiff admitted at the show cause hearing that he violated the terms of a protective order and did place nails near his ex-girlfriend’s home with the hope she would drive over them and damage her tire.1 He stated he wanted to inconvenience her and cause damage to her vehicle. He also admitted to releasing air out of her tire.2

The Plaintiff claims that the hearing officer relied on the arrest warrant, which contained hearsay statements, to revoke the Plaintiff’s license. The Plaintiff also claims that since he was not convicted of these charges, the Defendant’s decision was not supported by substantial evidence in the record and was clearly erroneous.

While the hearing officer’s decision may have been partly based on the arrest warrant, he also gave great weight to the Plaintiff’s own admissions stated at the show cause hearing as well as the Plaintiff’s voluntary statement where he admitted to criminal activity.

The hearing officer specifically stated in his Conclusions of Fact and Law that the Plaintiff’s conduct violated Mohegan Code 2-69(a)(2) in that the Plaintiff conducted himself in a manner analogous to an offense under Connecticut State Law. This finding is supported by the Plaintiff’s admissions during the show cause hearing.

The hearing officer also determined that the Plaintiff’s conduct posed a threat to the public interest and the interest of the Mohegan Tribe. He specifically found that the Plaintiff’s conduct could put patrons at risk while handling food and beverages.

If there is no factual basis for the Defendant’s conclusion, then the Defendant’s decision cannot be affirmed. Vilayvong v. Office of the Director of Regulation, 3 G.D.R. 118, 7 Am. Tribal Law 466 (2008). If however, there is substantial evidence in the record which meets the preponderance of the evidence standard, the Director’s decision must be affirmed. Church v. Office of the Director of Regulation, 3 G.D.R. 120, 7 Am. Tribal Law 468 (2008).

While this Court does question the hearing officer’s conclusion that the Plaintiff poses a threat to patrons, it cannot substitute its judgment or opinion for that of the hearing officer, if there is substantial evidence to uphold the hearing officer’s conclusion. The Court certainly does not condone the Plaintiff’s actions relative to his behavior that led to his arrest, but the Court does question whether such activity means that he poses a risk to the patrons of the Mohegan Sun.

It is not the function of this Court to gauge the credibility of witnesses or the strength of the evidence before the Commission. Whether this Court would reach the same conclusion upon a review of the evidence is not material. Rather, this Court must uphold the decision if there was substantial evidence. Francis v. Office of the Director of Regulation, 1 G.D.R. 80, 3 Am. Tribal Law 459 (2001).

The Plaintiff also states that there was not substantial evidence in the record to support a finding that the Plaintiff intentionally and knowingly lied during the MTGC investigation.

The Plaintiff was interviewed twice by Ms. Strickland. He was not represented by counsel at either interview, and did not have the benefit of reviewing the arrest warrant application prior to either meeting. While he was vague and not completely forthcoming with his answers to the investigator, this Court questions the process of interviewing a criminal defendant prior to the conclusion of the criminal matter. Whatever answers the criminal defendant provides to the investigator could be used against him or her in a criminal trial; therefore, if the criminal defendant cooperates fully with the investigation, it could jeopardize his or her criminal matter. If the criminal defendant fails to cooperate or fails to answer questions with sufficient specificity, he or she risks a gaming license revocation. It is this Court’s opinion that an investigation regarding the potential revocation of an individual’s gaming license should not commence until all criminal matters are resolved.

The Plaintiff executed a voluntary statement on January 31, 2023, which indicated that he had never driven down his ex-girlfriend’s road or followed her, and he believed she was using the protective order as a weapon against him.3

On February 3, 2023, the Plaintiff signed a second voluntary statement whereby he admitted to throwing screws and nails at the end of his ex-girlfriend’s road so that she would drive through them and get a flat tire.4 This statement appears to contradict his earlier voluntary statement.

This Court cannot substitute its judgment for that of the hearing officer. While this Court is of the opinion the Plaintiff was simply trying to minimize the severity of his actions and protect his ability to retain his gaming license, it cannot determine that there was not substantial evidence in the record to support the hearing officer’s conclusions of fact and law relative to his interaction with the investigator.

Based on this standard of review, the Court finds that there is substantial evidence in the record to support the findings of the Defendant. This Court does question the procedure of interviewing employees who have criminal charges pending and using their lack of candor or cooperation to revoke their gaming license. It also questions whether said criminal conduct does in fact pose a threat to a gaming enterprise. It does, however, recognize that the Plaintiff’s criminal behavior which was admitted by the Plaintiff to both the investigator and at the show cause hearing, is grounds for license revocation pursuant to Licensing Regulations.

The Defendant held that the revocation of the license was warranted and that the Plaintiff was unsuitable for licensing at Mohegan Sun. This is within the discretion of the Defendant and this Court cannot substitute its discretion for that of the Defendant. See Gavis v. Office of the Director of Regulation, 3 G.D.R. 125, 7 Am. Tribal Law 479 (2008).

THEREFORE, the appeal is dismissed without cost.

All Citations
--- Am. Tribal Law ----, 2024 WL 1673196

Footnotes
1	See page 35 of the transcript of show cause hearing.
2	See page 36 of the transcript of show cause hearing.
3	See Voluntary Statement (Exhibit 12 of show cause hearing).
4	See Voluntary Statement 2 (Exhibit 13 of show cause hearing).