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3 N.J.A.R. 230

Division of Gaming Enforcement v. Harris
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Citation: 3 N.J.A.R. 230
Decision Date: 1981
Synopsis: The Division of Gaming Enforcement filed a complaint with the Casino Control Commission seeking both temporary suspension and ultimate revocation of the casino employee license of Wynette Harris based on allegations that Ms. Harris had committed welfare fraud. On May 1, 1981 the Commission issued an order temporarily sus- pending the license and advised the licensee she had a right to an expedited hearing which she requested. The administrative law judge assigned to the case issued an order directing the Division to show cause why an interim order should not be granted reinstating the licensee's employee license pending a final hearing. After argument, the administrative law judge concluded that the Office of Administrative Law and its administrative law judges are not authorized to grant such interim relief where, as here, the agency head has issued an interlocutory order and the application for interim relief seeks a review of the propriety of the agency head's order. The judge noted that while the general power of the OAL to act in a particular subject area is normally coexistent with the power of the agency generating the case, the OAL's power may not always be so broad. The judge noted that the extent of the OAL's power may depend on the function to be performed in order to grant the relief sought. Here the basis for the requested relief is not a presentation of new facts going to the merits of the matter, but is instead a challenge to the propriety of the agency head's action on the merits based on an accusation of constitutionally defective procedures. Such a review of the Commission's decision to suspend would require the administra- tive law judge to act as an appellate reviewer of the agency head's action - a function assigned to the Appellate Division where the Commission's interlocutory decision is appealable pursuant to R. 2:2- 4. The judge pointed out, however, that such a limitation on the OAL's function is to be contrasted to a situation where an agency State of New Jersey 231 takes interim action through some internal division or through some official below the level of an agency head. In such an instance a challenge to the action of an agency can come before the OAL on application for interim relief. As to the licensee's contention that she had not been provided with the expedited hearing promised by the agency, the administrative law judge noted that although it relates to a fact which arose after the agency head acted and thus could not serve as a basis upon which to review the propriety of the agency head's decision, it could constitute a separate basis for reinstatement of the license. Where the allegation is that the provision of such a speedy hearing has been thwarted by an agency's misconduct, an administrative law judge may properly con- sider such complaints and, if the equities require it, may order rein- statement. Such action would not constitute interlocutory review of an agency head's decision, since the facts forming the basis for review do not require an analysis of the agency head's initial action. In this case, however, the administrative law judge found no such basis for ordering reinstatement of the license pending a hearing. Accordingly, the licensee's application for reinstatement of her license was denied. Howard M. Barman, Deputy Attorney General for Petitioner (James R. Zazzali, Attorney General of New Jersey, Attorney) David G. Seiarra, Esq. for Respondent (Cape-Atlantic Legal Serv- ices, Attorney)
Citation Tracker adopted-Casino Control Commission; Motion for leave to appeal denied--App. Div. (11/9/81) [Updated through 1991]