Dzwilewski v. Office of the Director of Regulation

5 Am. Tribal Law 355, 2 G.D.R. 100
CourtMohegan Gaming Disputes Trial Court
DecidedSeptember 23, 2004
DocketNo. GDTC-11-03-118-FOE
StatusPublished
Cited by1 cases

This text of 5 Am. Tribal Law 355 (Dzwilewski v. Office of the Director of Regulation) is published on Counsel Stack Legal Research, covering Mohegan Gaming Disputes Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dzwilewski v. Office of the Director of Regulation, 5 Am. Tribal Law 355, 2 G.D.R. 100 (Mo. 2004).

Opinion

MEMORANDUM OF DECISION

WILSON, Judge.

I.

The Plaintiff appeals from a decision of the Defendant ordering revocation of her gaming license and barring her from the Mohegan Reservation. The procedural history is as follows. In May 2003, the Plaintiff was employed as a craps dealer by the Mohegan Tribal Gaming Commission (MTGC). As such, she was required to be, and was, licensed by the MTGC. On May 8, 2003, the MTGC notified the Plaintiff that she was barred from the Mohegan Sun Casino and related facilities. The notice of that date from the MTGC to the Plaintiff (hereafter “notice”) informed the Plaintiff that “this action is based on your conduct on May 5, 2003 when you attempted to commit a larceny at the Nostalgia Store in the Casino’s Mall area. You also admitted to actual larcenies from this store in the past. The Gaming Commission finds that your presence here poses a threat to the integrity of the gaming activities of the tribe.” (This notice did not expressly revoke the Plaintiffs gaming license. It will be assumed, for purposes of this decision that the order- implicitly revoked the Plaintiffs license. There will be further discussion of this distinction between a bar from the reservation and a revocation of a license.) The notice went on to inform the Plaintiff of her right to “appeal this decision in writing” and that “you have the right to bring an attorney to represent you at this hearing.” (Ex. 1) The Plaintiff timely appealed the decision and a hearing was held on June 12, 2003. The notice informed the Plaintiff that the hearing was “relative to your license denial.” (Ex. 3)

At the hearing the Plaintiff was informed of her right to present any evidence or documents that she wished to produce. (Tr. 1) She was also informed again of her right to have an attorney. (Tr. 2-3) She was also re-informed that the reason for the action was that on May 5, 2003 she attempted to commit a larceny at the Nostalgia Store and that she had admitted to actual larcenies from the store in the past. (Tr. 2)

The evidence adduced at the hearing comprised photos from a video recorder depicting the Plaintiff entering the store, and in the vicinity of the register. Two incident reports narrated her activities. The substance of these reports was that the Plaintiff brought in to the store a receipt for a toy puzzle which had been previously purchased; took a new puzzle off the shelf at the store; and attempted to exchange it for a different puzzle. Because of some previous conduct by the Plaintiff, a store employee was suspicious of the Plaintiffs conduct on this occasion and confronted the Plaintiff. The Plaintiff then stated that she had: left the puzzle (pi*esumably the old one to be exchanged) in her vehicle. The manager requested that the Plaintiff leave the premises and that she not return. The previous conduct mentioned consisted of the Plaintiffs attempts to take items from the store under the pretense that she had previously paid [358]*358for them when she had not. The store manager reported the incidents to the Defendant’s security department, which investigated the incidents.

The investigators took statements from store employee’s detailing the above, and reviewed a video tape depicting the Plaintiff entering the store “empty-handed” and then attempting to exchange a puzzle that she picked up from the shelf.

The Plaintiff was interviewed and gave a statement, (in the words of the statement, “of my own free will, knowing that is an accurate account of any and all facts,”) in which she admitted that “[w]hile I was in the store I attempted to steal a puzzle.” She also admitted that “I also in the past removed items from the Nostalgia by telling them that I had purchased the items when I really did not.” (Ex. 9)

Of note, at the hearing the Plaintiff read from a statement which she brought with her to the hearing, and in which she stated “I do not deny my actions and I accept full responsibility. My actions are inexcusable and I would like to apologize for the inconvenience that I have caused to all concerned ... I would like to pay full restitution for the items taken ...” (Tr. 22, 24; Ex. H) During the hearing the Plaintiff further admitted that she went into the store with a receipt, took a puzzle off the rack and looked to exchange that item. (Tr. 28) She also admitted that she had previously taken items from the store after misrepresenting that she had paid for them, and that these actions were “inexcusable.” (Tr. 28)

After the hearing on the Plaintiffs Appeal, the Defendant concluded that the Plaintiffs behavior in stealing and in attempting to steal from the store, is inconsistent with the expected behavior of a licensee; brings into question her integrity; poses a threat to the intepity of gaming at the Mohegan Sun; and is disorderly. The Defendant found that the Plaintiff “did intend to steal from the Nostalgia Store on May 5, 2003 and successfully stole merchandise on prior occasions and this conduct warrants a barment and license revocation.”

The Defendant’s order barred the Plaintiff from the Mohegan Sun and revoked her gaming license. This appeal followed.

II.

This appeal is taken pursuant to MTO 2002-13, which is patterned after the Uniform Administrative Appeals Procedure Act, and which provides in part that this “court shall not substitute its judgment for that of the agency [here, the Office of the Director of Regulation (ODR) ] as to the weight of the evidence on questions of fact.” MTO 2002-13, Sec. 3(j). This court must affirm the decision of the ODR, unless the court finds that the Defendant’s “findings, inferences, 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.”

On the other hand, this court shall sustain the Plaintiffs appeal if the court finds that the Plaintiff has been prejudiced because the Defendant’s decision is illegal in one of the ways set forth in (1) through (6) above.

III.

With this standard at hand, the court reviews each of the Plaintiffs claims on [359]*359appeal. The court first takes up the appeal from the bar from the reseivation.

A.

In barring the Plaintiff from the reservation the Defendant relied on Sec. 7(b)(ii) of the Tribal-State Compact pursuant to 25 U.S.C. § 2701 et. seq. This section requires the Tribe to establish a list of persons “barred” because of criminal history or criminal-type associations which “poses a threat to the integrity of the gaming activities of the Tribe.” Such persons, as well as those engaging in disorderly conduct jeopardizing public safety shall be “excluded.” This section would seem to be inapplicable to bar or exclude persons for other reasons, e.g., violation of tribal or gaming policy or procedures or activity.

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Related

Davidson v. Office of the Director of Regulation
6 Am. Tribal Law 568 (Mohegan Gaming Disputes Trial Court, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
5 Am. Tribal Law 355, 2 G.D.R. 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dzwilewski-v-office-of-the-director-of-regulation-mohegangct-2004.