1 1 STATE OF NEW JERSEY 2 CASINO CONTROL COMMISSION 3 - - - - - - - - - - - - - - - - - - - 4 5 SPECIAL PUBLIC MEETING 6 7 - - - - - - - - - - - - - - - - - - - 8 9 Thursday, November 15, 2007 10 Atlantic City Commission Offices 11 Joseph P. Lordi Public Meeting Room - First Floor 12 Tennessee Avenue and Boardwalk 13 Atlantic City, New Jersey 08401 14 10:00 a.m. to 4:11 p.m. 15 16 17 Certified Court Reporter: Darlene Sillitoe 18 - - - - - - - - - - - - - - - - - - - - - - - - - - - 19 20 ATLANTIC CITY COURT REPORTING, LLC 21 CERTIFIED SHORTHAND REPORTERS AND VIDEOGRAPHERS 22 1125 ATLANTIC AVENUE, SUITE 416 23 ATLANTIC CITY, NEW JERSEY 08401 24 (609) 345-8448 www.accourtreporting.com 25 2 1 AGENDA SPECIAL PUBLIC MEETING 2 NOVEMBER 15, 2007, 10:30 a.m. ITEM PAGE VOTE 3 1 Petition of UNITE-HERE Local 54 seeking 6 43 4 permission to intervene or, in the alternative, participate in the petition 5 PRN 2140705 of Adamar of New Jersey, Inc., for a renewal of its casino license and 6 in the matter of the consideration of the plenary qualification of Tropicana Casinos 7 and Resorts, Inc., et al. (PRN 3090701) 2 Motion of Adamar of New Jersey, Inc., 44 113 8 et al, to limit the scope of its license renewal hearing and to strike all references 9 in the Division of Gaming Enforcement's reports containing matters that the New Jersey 10 Casino Control Commission is without the statutory and regulatory authority to 11 consider (PRN 3110709) 3 Motions from the parties to compel 114 127 12 discovery 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 B E F O R E : 2 CASINO CONTROL COMMISSION: LINDA M. KASSEKERT, CHAIR 3 MICHAEL A. FEDORKO, VICE CHAIR MICHAEL C. EPPS, COMMISSIONER 4 RALPH G. FRULIO, COMMISSIONER WILLIAM T. SOMMELING, COMMISSIONER 5 PRESENT FOR THE CASINO CONTROL COMMISSION: 6 DARYL W. NANCE, ADMINISTRATIVE ANALYST DANIEL J. HENEGHAN, PUBLIC INFORMATION OFFICER 7 OFFICE OF THE GENERAL COUNSEL: 8 DIANNA W. FAUNTLEROY, GENERAL COUNSEL/EXECUTIVE SECRETARY 9 LEONARD J. DIGIACOMO, ASSISTANT GENERAL COUNSEL STEVEN M. INGIS, ASSISTANT GENERAL COUNSEL 10 DIVISION OF GAMING ENFORCEMENT: 11 YVONNE G. MAHER, ACTING DIRECTOR 12 DEPUTY ATTORNEYS GENERAL MARYJO FLAHERTY, DEPUTY ATTORNEY GENERAL 13 JAMES FOGARTY, DEPUTY ATTORNEY GENERAL WENDY WAY, DEPUTY ATTORNEY GENERAL 14 15 16 17 18 19 20 21 22 23 24 25 4 1 A P P E A R A N C E S : 2 ITEM NO. 1 LEONARD J. DiGIACOMO, ASSISTANT COUNSEL JAMES FOGARTY, DEPUTY ATTORNEY GENERAL 3 STERNS & WEINROTH, PC BY: PAUL M. O'GARA, ESQ. 4 AND: ERICA HELMS FOR: TROPICANA ENTERTAINMENT AND ADAMAR 5 CLEARY & JOSEM, LLP BY: REGINA C. HERTZIG, ESQ. 6 FOR: UNITE-HERE, LOCAL 55 7 ITEM NO. 2 LEONARD J. DiGIACOMO, ASSISTANT COUNSEL YVONNE G. MAHER, ACTING ATTORNEY GENERAL 8 STERNS & WEINROTH, PC BY: PAUL M. O'GARA, ESQ. 9 AND: ERICA HELMS FOR: TROPICANA ENTERTAINMENT AND ADAMAR 10 ITEM NO. 3 STEVEN M. INGIS, ASSISTANT GENERAL COUNSEL 11 WENDY WAY, DEPUTY ATTORNEY GENERAL MICHAEL & CARROLL 12 BY: GUY S. MICHAEL, ESQ. FOR: TROPICANA 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 MR. NANCE: Good morning, I'd like to 2 read an opening statement. 3 This is to advise the general public 4 that in compliance with Chapter 231 of the 5 public laws of 1975 entitled the "Open Public 6 Meetings Act," the New Jersey Casino Control 7 Commission on November 9, 2007, filed with the 8 secretary of state at the state house, Trenton, 9 a notice of this hearing. On November 9, 2007, 10 copies were mailed to subscribers. 11 Members of the press will be permitted 12 to take photographs, and we would ask that this 13 be done in a manner which is not disruptive to 14 the Commission and which does not interfere 15 with the publics right to observe the hearing. 16 The use of cellular telephones in the 17 public meeting room while the Commission is in 18 session is prohibited. 19 Please stand for the Pledge of 20 Allegiance. 21 (The flag salute was recited.) 22 CHAIR KASSEKERT: Good morning. 23 MR. NANCE: Good morning. The matters 24 to be considered today are petition of 25 UNITE-HERE Local 54 seeking permission to 6 ITEM NO. 1 1 intervene or, in the alternative, participate 2 in the petition PRN 2140705 of Adamar of New 3 Jersey, Inc., for a renewal of its casino 4 license and in the matter of the consideration 5 of the plenary qualification of Tropicana 6 Casinos and Resorts, Inc., et al.;. 7 Motion of Adamar of New Jersey, Inc., et 8 al, to limit the scope of its license renewal 9 hearing and to strike all references in the 10 Division of Gaming Enforcement's reports 11 containing matters that the New Jersey Casino 12 Control Commission is without the statutory and 13 regulatory authority to consider (PRN 3110709); 14 Motions from the parties to compel 15 discovery; 16 And motions for further proceedings and 17 prehearing rulings. 18 CHAIR KASSEKERT: Thank you. 19 Let me begin by asking counsel to enter 20 their appearance. 21 Ma'am? 22 MS. HERTZIG: Yes. Regina Hertzig, 23 Cleary & Josem, on behalf of UNITE-HERE Local 24 54. 25 MR. O'GARA: Paul O'Gara and my 7 ITEM NO. 1 1 colleague, Erica Helms, on behalf of Tropicana 2 Entertainment and Adamar. 3 CHAIR KASSEKERT: Thank you. 4 MR. FOGARTY: Good morning. James 5 Fogarty, Division of Gaming Enforcement. 6 I'm appearing on one of the few items 7 that you have here today. Assistant Director 8 Yvonne Maher will be appearing on one, and 9 Deputy Attorney General Wendy Way will be 10 appearing on the third matter. 11 CHAIR KASSEKERT: Thank you. 12 Let me begin with a few introductory 13 remarks. 14 Next Tuesday the Commission will begin 15 its hearing on the petition of Adamar of New 16 Jersey, Inc., better known as the Tropicana, 17 for renewal of its casino license and casino 18 hotel alcoholic beverage license. The 19 Commission has scheduled today's special 20 meeting to consider various motions that may 21 impact on that proceeding. In particular, 22 UNITE-HERE, Local 54 filed a motion on November 23 5th, 2007, to intervene in both the license 24 renewal proceedings and in the application of 25 the casino's new owner, Tropicana Casinos and 8 ITEM NO. 1 1 Resorts, for plenary qualification as it merges 2 from the interim casino authorization process. 3 Today's agenda also includes a motion by 4 Tropicana to limit consideration of certain 5 matters at its renewal hearing and to strike 6 portions of the reports that the Division of 7 Gaming Enforcement has filed concerning the 8 renewal. 9 Yesterday afternoon the Commission 10 received a fax from Local 54 purporting to move 11 for leave to file a brief in opposition to 12 Tropicana's motion to limit. 13 Finally, we will hear arguments on 14 motions to compel discovery that I will decide 15 as presiding officer. 16 Before turning to our first order of 17 business, which is the motion to intervene, it 18 has been reported in the newspaper that a 19 letter from State Senate President, the 20 Honorable Richard J. Codey, was sent to the 21 Commission on behalf of Local 54. Let me 22 assure the Movant and the responding parties 23 that no part of any such letter will play any 24 role or have any effect on my consideration of 25 and deliberation on this motion, and as 9 ITEM NO. 1 1 Commission presiding officer, I've instructed 2 all other Commission members to do likewise. 3 With that understanding, do the Movant 4 and the responding parties have any objection 5 to our proceeding on that basis? 6 Mr. O'Gara? 7 MR. O'GARA: No, ma'am. 8 CHAIR KASSEKERT: Thank you. 9 MS. HERTZIG: No. 10 MR. FOGARTY: No objections from the 11 Division. 12 CHAIR KASSEKERT: Thank you. 13 We'll turn then to the argument on that 14 motion, which I trust I need not remind counsel 15 must not strain stray into the areas that Local 16 54 would present if it were allowed to 17 intervene in the renewal hearing. 18 Further, although it is wholly within my 19 province as presiding officer to reject as 20 untimely and improperly Local 54's motion for 21 leave to file a brief in opposition, I propose 22 that the Commission hear the argument on that 23 motion if it decides to afford Local 54 24 intervention. If, on the other hand, the 25 Commission only grants participation or denies 10 ITEM NO. 1 1 both intervention and participation, then the 2 motion for leave to file will be moot and not 3 considered. 4 Counsel, are you ready to proceed? 5 MS. HERTZIG: Yes. My name is Regina 6 Hertzig. I represent UNITE-HERE, Local 54 in 7 its application to become an intervenor in this 8 matter. 9 As we have fully briefed this issue, I 10 will be very short in my remarks since I don't 11 want to take up too much of your time. 12 In order to be granted intervention 13 under the Administrative Procedure Act, you 14 need to look at the nature and extent of the 15 Movant's interest in the outcome of the 16 proceeding, whether the Movant's interests are 17 sufficiently different from any other party in 18 the proceeding. And there -- whether there's a 19 prospect of undue confusion and delay if the 20 intervenor participants. In this case all 21 factors have met to allow Local 54 to intervene 22 in this action. 23 I can't imagine any organization that 24 has a greater interest in seeing that the 25 Tropicana exists as a first-class facility 11 ITEM NO. 1 1 under the statute. This is the organization 2 that represents over 1,000 of the employees in 3 the Tropicana. Their livelihood depends on the 4 success of the Tropicana. If it is a dirty, 5 unkempt, unmaintained facility, customers are 6 not -- simply not going to come there. So 7 their -- their interest, their economic 8 interest, their livelihood, and the livelihood 9 of Atlantic City really depends on whether this 10 moves forward as a first-class facility. 11 It's well established that local -- that 12 unions have standing to bring actions and to 13 intervene in actions on behalf of their 14 members. You know, people -- the members of 15 Local 54 have collectively joined voluntarily 16 Local 54 and asked them to be their 17 representative on such matters, and that's all 18 we're seeking to do here is simply intervene. 19 We do not believe that our interests are 20 sufficiently supported by the Division of 21 Gaming Enforcement. Our interests are slightly 22 different than the Division of Gaming 23 Enforcement. And the interests will not be 24 fully and completely protected by merely having 25 the Division of Gaming Enforcement present what 12 ITEM NO. 1 1 it intends to present. We don't know what 2 evidence it intends to present. As you know, 3 we do have evidence that is independent of the 4 Division of Gaming Enforcement that goes 5 directly to the issue of whether the Tropicana 6 is a first-class facility as the statute 7 requires. 8 And then, lastly, we submit that our 9 participation and our intervening in this 10 matter will not cause undue delay or confusion. 11 We will work with the Division of Gaming 12 Enforcement to make sure that there's no 13 evidence that is duplicative or redundant and 14 to make sure that you hear and see a clear 15 picture of exactly what's going on so that you 16 can move forward with your decision on whether 17 to grant the license. 18 Thank you. 19 CHAIR KASSEKERT: Thank you. 20 Mr. O'Gara? 21 MR. O'GARA: Yes, ma'am. 22 We have filed our brief and our papers 23 in opposition to the motion to intervene and 24 participate. And while counsel correctly 25 stated the test, I think that the issue is 13 ITEM NO. 1 1 whether or not, number one, there is sufficient 2 difference in the interests. The Division of 3 Gaming Enforcement has the statutory obligation 4 to not only investigate but to present to you 5 all of the evidence that would be relevant with 6 respect to meeting the criteria for renewal of 7 the license and for plenary qualification. 8 They certainly have the resources to do so and 9 have done so, you know, for well over 25 years. 10 This -- the Commission's had the 11 occasion to consider participation on a number 12 of occasions, and I think through its decisions 13 has established some guidelines. And there's 14 been reference to economic interests. And I 15 think that if you look to one of the matters we 16 cite with respect to the bond holders, both 17 what was there TCA, Trump Castle, and Taj 18 Mahal, the Commission determined that having an 19 economic, per se, is not sufficient to justify 20 in those cases either intervention or 21 participation. That, in fact, what we're not 22 going to have is a free-for-all with various 23 people who have various competing interests 24 which fall outside of the regulatory ambit and 25 have them presented in this forum. 14 ITEM NO. 1 1 Additionally, I would suggest that Local 2 54 as a bargaining unit can have any number of 3 issues with the employer in this case, 4 Tropicana Entertainment or Adamar. And many of 5 those have other forums for resolution. They 6 include, you know, arbitration proceedings 7 underneath -- pursuant to its agreement. They 8 have the right to bring certain actions with 9 federal authorities with respect to certain 10 things that they may contend. 11 But in any event, it is difficult to see 12 a compelling interest which is different from 13 the interests which the Division of Gaming 14 Enforcement has as the agency that's mandated 15 by this statute to present to you all of the 16 evidence with respect to the criteria that you 17 might establish or that you're going to 18 consider with respect to the renewal. And to 19 the degree that someone were to interpose 20 another party who has a number of other 21 competing interests outside of the interests 22 which take place in this room and have them 23 have a role in this hearing in which they have 24 the right to examine and present evidence, much 25 of which could be extraneous to these issues 15 ITEM NO. 1 1 but very relevant to issues they may have with 2 the employer would, in fact, unduly delay and 3 could, to some degree, cause the hearing to go 4 on ad infinitum. 5 In any event we would urge to you deny 6 the relief that's requested, and we believe 7 that denial would be in accordance with your 8 past decisions and with the mandate of the 9 regulations. 10 Thank you. 11 CHAIR KASSEKERT: Thank you. 12 Mr. Fogarty? 13 MR. FOGARTY: Yes, good morning, again, 14 Chair, Commissions. 15 I rise not to reiterate what I wrote 16 you, which in brief is that we oppose the 17 application for intervention but do not oppose 18 the application for participation, a rather 19 Solomon like approach to this thing. But I 20 really rise because I feel compelled to address 21 one argument that the Tropicana has made. And 22 that argument is made in point two of its brief 23 where it essentially says that participation 24 ought to be denied because the interests of 25 Local 54 and its members is only an economic 16 ITEM NO. 1 1 one. And I want to make sure that clear that 2 the Division does not subscribe to that 3 proposition. To say that someone's job is 4 merely an economic interest and, thus, unworthy 5 of even bringing a statement to your attention 6 is a view that is at best insensitive, perhaps 7 dismissive. And, I would say, it's inaccurate. 8 When you look at the case closely that 9 is cited by Tropicana for its opposition, a 10 case some 17 years ago, when you look at the 11 full thing -- it rang a bell when I read it. 12 And I dug the whole case out. When you look at 13 that closely, what that was was Trump was 14 before the Commission because it was undergoing 15 a reorganization in lieu of a bankruptcy. And 16 along came a group called the Creditors 17 Committee who wanted to participate in that 18 proceeding. 19 Now, this Creditors Committee consisted 20 of construction firms, construction companies, 21 construction corporations who were fussing over 22 amount of monies they were owed. How much of 23 the pie they were going to get, when they were 24 going to get it, and how they were going to get 25 it. That's a lot different than this. These 17 ITEM NO. 1 1 are people's jobs. These are people's 2 livelihoods. This is food on the table. This 3 is modest housing. I don't think you want to 4 make that comparison. 5 And so I would suggest to you that the 6 authority that is cited by Trop that this is 7 just simply an economic interest and somehow is 8 unworthy make it worthy for them to at least 9 give you a statement as to how they feel about 10 things. I think you ought to reject that. 11 That's all I have to say. Thank you. 12 CHAIR KASSEKERT: Thank you. Let me ask 13 if any of the commissioners have any questions 14 before I see if counsel wishes to respond. 15 Commissioner Epps? 16 COMMISSIONER EPPS: No. I'll wait until 17 counsel is done. 18 CHAIR KASSEKERT: Counsel's response? 19 MS. HERTZIG: Yes. I would just like to 20 reiterate that it is the very livelihood of 21 people who actually make sure that the 22 customers get served at the Tropicana that's at 23 issue here. It's -- think about it. It's the 24 people who make the beds, who clean the rooms, 25 who scrub the toilets every single day. It's 18 ITEM NO. 1 1 their livelihood that's at issue here. You're 2 not talking about an economic interest of 3 somebody's who's owed some money on a 4 construction job or a company like in the other 5 instance where you've denied intervention and 6 participation. 7 And then with regard to Mr. O'Gara's 8 remarks concerning that the union somehow has 9 another forum to address this issue, there is 10 no other forum. Issues such as layoff and 11 staffing levels are inherently managerial 12 rights that are not -- that are not part of 13 collective bargaining. There is no other forum 14 to address those issues other than to 15 participate and to intervene in this action. 16 So, for those reasons, we'd ask you to 17 please consider allowing us to intervene. 18 Again, we will not cause you undue delay. We 19 just want to be able to fully and fairly 20 represent the interests of the Local 54 21 members, the people who actually make sure that 22 the Tropicana runs. 23 Thank you. 24 CHAIR KASSEKERT: Thank you. 25 Mr. O'Gara? 19 ITEM NO. 1 1 MR. O'GARA: Yes. 2 In response, while they may be jobs, the 3 analogy is that they are economic interests, 4 i.e., I believe the reference is they rely on 5 tip income that in fact -- and the case cited 6 was propositioned much as investors can come 7 here, and do come here and you've dealt with, 8 who include people who invest pension money for 9 other people and seek to intervene that you 10 delineate certain interests. And some of them 11 are sufficient, and some of them aren't, 12 regardless of whose they are. And, in fact, I 13 think that the interests that you have to 14 consider and to the degree that there are 15 things which are relevant bearing on those 16 issues, you have an agency who, in fact, has 17 the obligation to present those things to you 18 and has the ability to do so. And what we 19 would have would be repetitive. 20 Thank you. 21 CHAIR KASSEKERT: Thank you. 22 Mr. Fogarty? 23 MR. FOGARTY: Nothing further. 24 CHAIR KASSEKERT: Nothing further? 25 Let me ask now if the Commissioners have 20 ITEM NO. 1 1 any questions? 2 Commissioner Epps? 3 COMMISSIONER EPPS: I have a couple 4 questions. 5 CHAIR KASSEKERT: Sure. 6 COMMISSIONER EPPS: Counsel for the 7 union. You gave a brief overview, but now I 8 think we need to drill down so that we can get 9 some substantive discussion on these items so 10 that we can wrap our arms around them. 11 The first item is the economic 12 discussion that we've been having briefly. 13 Distinguish for me, if you can, the collective 14 bargaining issue with respect to wages or 15 whatever if, for example, things should not -- 16 to turn such that your employees that you 17 represent don't earn the dollar that they are 18 anticipated in the collective bargaining 19 agreement, is there an opportunity to go back 20 and open that again and investigate -- 21 Let me finish. 22 And investigate how that -- these 23 business decisions have impacted that 24 collective bargaining agreement as opposed to a 25 situation where these are strictly jobs and 21 ITEM NO. 1 1 these people are going to be, for example, let 2 go or no longer needed because of a business 3 decision has happened. Can you distinguish the 4 two, meaning business has deteriorated such 5 that the people are not needed or business has 6 deteriorated such that their earnings are 7 different, particularly the tip income? 8 MS. HERTZIG: I will distinguish that. 9 The issue with regard to that the tip income 10 has diminished or nonexistent, what happens 11 there is we have a five-year agreement. I 12 mean, we're tied to that five-year agreement. 13 Tropicana is not going to open that agreement. 14 And as you know -- as you may know, that 15 for the most part, you know, with tipped income 16 workers, their wagers are -- as set forth in 17 the collective bargaining agreement are set out 18 very low. Very, very low. And as a result 19 of-- because it's anticipated that they have 20 these amazing tip opportunities in -- you know, 21 in various jobs. There are some jobs that 22 there are no tip opportunities, but most of the 23 jobs there are tip opportunities. 24 So when you have a first-class facility 25 down the road and, you know, the customers are 22 ITEM NO. 1 1 going to go to the first-class facility as 2 opposed to the one that's dirty, you're going 3 to clearly have, you know, a distinction. And 4 people aren't going to -- customers aren't 5 going to come. And so folks are not going to 6 have -- and we are stuck, and we're going -- if 7 we go back to the bargaining table to the 8 Tropicana and say to them, okay, now, you know, 9 our agreement hadn't expired yet, but we want 10 to reopen it. They're going to say, no. We 11 have no obligation. They have no legal 12 obligation to reopen it and certainly they're 13 not going to. And when we do get to the 14 bargaining table, when the contract does 15 expire, they're going to say, oh, look how bad 16 our revenues are. We can't afford you to pay 17 you any more money. And so, you know, that's 18 the reality of that. 19 And that is distinguishable from the 20 layoff issue. But, again, even the layoff 21 issue and staffing issues are not subject to 22 collective bargaining. I mean, we can sort of 23 decide, you know, if they are using other 24 people to do bargaining at work, that's an 25 issue for arbitration and the grievance 23 ITEM NO. 1 1 procedure. But in terms of deciding we're 2 going to get by with less housekeeping staff is 3 nothing the union can take issue with in terms 4 of the collective bargaining agreement. 5 COMMISSIONER EPPS: Now, secondly, if -- 6 let's say, for example, there was independent-- 7 let's say the place was maintained as a 8 first-class facility, but there was still a 9 bargaining decision to maintain first class 10 with less staff. They made a decision to, as a 11 business decision, do more with less. Would 12 you still be in the same position or would that 13 weaken? 14 MS. HERTZIG: If it would maintained as 15 a -- we wouldn't be in this position here, and 16 we wouldn't be in this position with collective 17 bargaining. If we're saying, you know, we can 18 take issue with the fact that, for instance, 19 they increase the number of rooms they expected 20 people to clean and that kind of stuff, we 21 could take issue with that kind of minutia. 22 But in terms of their staffing levels, no, we 23 can't take issue with that. 24 COMMISSIONER EPPS: My second question 25 is, it's been argued that the Division of 24 ITEM NO. 1 1 Gaming Enforcement does not have or does not 2 represent the interests that the union 3 represents, and so you're going to present 4 something that's substantial, specific, and 5 direct other than what the Division is willing 6 and obligated to present to us as they've done 7 year over year and is their duty to do. Can 8 you tell me how they're not going to present 9 your interests in this matter? 10 MS. HERTZIG: They are not going to 11 present our interests in this matter in that 12 they have -- you know, they have the issue of 13 the first-class facility as well. But I don't 14 believe that they have the inside information, 15 as it were, in terms of being able to see how 16 dirty the facility is, how it's not being 17 maintained. And, you know, there is evidence 18 that the union has that is independent from 19 them. And I know you didn't want to get into 20 merits of that, so I'm trying to avoid that at 21 all costs here. 22 But their interests are certainly, you 23 know, in terms of whether, you know, whether 24 Tropicana gets its license and goes forward and 25 then fails and then ultimately is sold or 25 ITEM NO. 1 1 closed or whatever happens to it, you know, 2 that's the issue for the Division of Gaming 3 Enforcement. But for us, it's a thousand -- 4 it's a thousand jobs. It's if that -- if it 5 fails. We have a vested interest in seeing 6 that this facility survives as a first-class 7 facility and carries on. 8 COMMISSIONER EPPS: To follow up with 9 that question, I guess my question is better 10 asked, what I hear you saying is while the 11 Division represents -- has an obligation to do 12 what they're going to do, they won't do it as 13 good as we -- we will. Or they will won't do 14 it as well as we will or in the same manner. 15 MS. HERTZIG: I don't say "as well," 16 Your Honor. I don't say as well. I say in a 17 different -- in a different manner and we have 18 different evidence. Our evidence is different 19 than theirs. We have a different viewpoint, as 20 it were, because of, as I said, from the 21 vantage of point of being able to be inside the 22 facility on a regular basis and so that you can 23 hear the evidence about the fact that it's no 24 longer a first-class facility and has not been 25 maintained as a first-class facility for some 26 ITEM NO. 1 1 time. 2 COMMISSIONER EPPS: Okay. And my last 3 question is, if we were to grant this, how do 4 we prevent changing the course such that 5 unions, yours and others or other parties with 6 interests, don't then necessarily have a seat 7 at the table for every licensing process, every 8 relicensing process, every merger and 9 acquisition? How does that not lead us down a 10 slippery slope where we no longer are the sole 11 arbiters of who should get it, but we have to 12 satisfy all the interest parties at every 13 hearing process that we hold? 14 MS. HERTZIG: Yes, Commissioner. This 15 presents a unique set of facts. This has not 16 happened before in the history of the 17 Commission, I don't believe that any union has 18 asked to intervene. 19 COMMISSIONER EPPS: Certainly not since 20 I've been here. 21 MS. HERTZIG: Not since you've been 22 here. And certainly not since we've done the 23 research. And the fact that this has not 24 happened, and this real really and truly is a 25 unique set of circumstances that the union has 27 ITEM NO. 1 1 felt compelled to seek intervention in this 2 matter. Local 54 has been around as -- 3 virtually as long as the Commission and casino 4 gambling has been around in terms of 5 representing the employees in the casino 6 industry. And it never in its history felt -- 7 felt compelled like it has here to -- it really 8 needs to be able to fully participate in this 9 proceeding as an intervenor. 10 Again, keeping in mind that it's not 11 going to be unduly duplicative or present 12 evidence or delay the proceeding in any way. 13 COMMISSIONER EPPS: But, what is it that 14 makes this unique? Is the question. 15 MS. HERTZIG: This unique? In that -- 16 COMMISSIONER EPPS: Why is this 17 different from some other dissatisfaction that 18 may occur in some other -- 19 MS. HERTZIG: This is different in that 20 you have an owner coming in saying, I came 21 here, and I thought this was a good investment 22 because I was going to cut the staff to the 23 bone, and I was going to -- I saw that there 24 was some sort of economies of scale. You know, 25 and how I can possibly look at running a 28 ITEM NO. 1 1 first-class facility when that is my initial 2 goal with looking at it as an investment, and 3 then once I take operation of it, that's 4 exactly what you go about doing, is just 5 cutting staff, and as a result of that having 6 the facility's maintenance and cleanliness go 7 downhill. 8 You know, anyone can look on the 9 internet now and see the reviews of any hotel. 10 Anybody who stays in any hotel can sort of post 11 what they see. And you can go on and look and 12 see. And people just write, you know, filthy. 13 My room was dirty, this was this, this was 14 that. And if they're going to choose a hotel 15 in Atlantic City, they're not going to choose 16 the Tropicana. You're not going to have a 17 first-class facility. 18 So, you know, our -- this is a unique 19 situation. Never happened before, and we 20 hopefully believe it will never happen again. 21 And we certainly would, you know -- if we were 22 going to ever ask to intervene again, we would 23 look at it as judiciously. We know that you 24 granted intervention on very rare occasions. 25 We understand that that's the history of this 29 ITEM NO. 1 1 Commission. But we believe that these are the 2 circumstances, if ever, where Local 54 as the 3 representative of over a thousand employees at 4 the Tropicana should participate. 5 CHAIR KASSEKERT: Commissioner Epps? 6 COMMISSIONER EPPS: That's it. 7 CHAIR KASSEKERT: Counsel, the other 8 problem that we have to examine today is would 9 this intervention cause undue delay or confuse 10 the issues at hands. Now, obviously, you've 11 spent a great deal of time investigating. 12 You've had investigators look at the issues 13 down there. You've issued reports. Tell me 14 how this is not going to cause undue delay in 15 these proceedings when we're coming up against 16 the licensing period. 17 MS. HERTZIG: Okay. We will -- what we 18 anticipate doing is, if intervention is 19 granted, as I hope it will, is meeting with 20 Division of Gaming Enforcement immediately, 21 finding out what evidence, you know, just sort 22 of broad outlines in terms of what they intend 23 to present, what we intend to present. And 24 then really, really narrowing it down. 25 And if you give us a time limit that 30 ITEM NO. 1 1 says, you know, you have this amount of time to 2 present your evidence, we will work within 3 those time constraints. And we will do 4 whatever is necessary to get it done in the 5 manner that the Commission wants to get it 6 done. 7 CHAIR KASSEKERT: Thank you. 8 Commissioner Epps? 9 COMMISSIONER EPPS: One other question. 10 CHAIR KASSEKERT: Want to hear a 11 response? Sure. 12 COMMISSIONER EPPS: One other question I 13 have is that if you have -- if you have 14 information that you think is dispositive of 15 the issue that you either don't believe the 16 State has or you think could benefit the State 17 in their obligation to do what they have to do, 18 why don't you just give it to the State? 19 MS. HERTZIG: Because we don't 20 necessarily know that the State would -- would 21 use it. Remember, we've got, you know, 22 individual members that have had information 23 and specific things with regard to that. We 24 also have a private investigator involved in 25 this who looked at this. I believe, you know, 31 ITEM NO. 1 1 all that is in the record. And, you know, at 2 this juncture we don't know if the State's 3 going to be presenting that evidence or, you 4 know, what -- since we're not privy to what the 5 State is going to present at this point. But 6 we assure you that we're not going to waste 7 your time. Really, we'll -- you know, 8 whatever-- whatever that time limit is you give 9 us on Tuesday, that's what we'll take. 10 CHAIR KASSEKERT: Any Commissioners have 11 any other questions before we hear response? 12 Commissioner Fedorko? 13 VICE CHAIR FEDORKO: Mr. Fogarty, could 14 you comment on the information that could be 15 given to you and whether you would use it or 16 not? 17 Certainly you would consider it? Right? 18 MR. FOGARTY: For sure if any interest 19 party in these proceedings wanted to give us 20 information, we would make ourselves available 21 to at least listen to it. Sure. 22 VICE CHAIR FEDORKO: And investigate it? 23 MR. FOGARTY: That's sort of a guaranty 24 that you're going to investigate. 25 VICE CHAIR FEDORKO: And investigate it? 32 ITEM NO. 1 1 MR. FOGARTY: I'm not sure, sir. I 2 can't say that because I don't know what it is 3 in a loud clear voice that we would investigate 4 it. I'm not sure what that would mean, in any 5 event. 6 CHAIR KASSEKERT: Commissioner O'Gara -- 7 Commissioner. Mr. O'Gara? I just elevated 8 you. 9 Would you care to respond? 10 VICE CHAIR FEDORKO: He couldn't afford 11 it. 12 MR. O'GARA: Just the point -- the point 13 that Commissioner Fedorko asked, if there is 14 information and -- apparently it's been 15 available for some time from the brief -- that, 16 in fact, it can be shared with the agency, the 17 agency could be made aware. The agency takes 18 positions. The agency, in fact, goes out and 19 seeks information. And one would think that it 20 has the expertise in presenting it that that's 21 the appropriate way to do it. 22 And the second is the point that I think 23 that Commissioner Epps made of what is a 24 particularized interest and at what point who 25 gets in going forward based on what you've done 33 ITEM NO. 1 1 in the past. Well, this may be an argument for 2 Local 54 as a compelling interest. Certainly 3 there's compelling interest brought on the 4 parts of people in cases. You could have 5 shareholders who were, in fact, involved in 6 things and are looking at the way they perceive 7 things are going on and have economic loss and 8 claim that they have direct ownership interest 9 through their shares that want to intervene. 10 I think that's why the -- both the 11 regulation and the statute, you know, set up an 12 agency which has fairly broad powers to 13 investigate and to analyze the criteria and to 14 present the relevant evidence to you. It would 15 be different if it was evidence that was 16 unavailable to anyone or couldn't be made 17 available. And I would suggest to you that 18 there's nothing that will be added, and that 19 there would be delay. And I'd urge you to 20 again deny the motion. 21 Thank you. 22 CHAIR KASSEKERT: Commissioner Frulio? 23 COMMISSIONER FRULIO: Miss Hertzig. 24 MS. HERTZIG: Yes. 25 COMMISSIONER FRULIO: I'm going to 34 ITEM NO. 1 1 apologize in advance if I'm wrong, but about 2 Commissioner Epps issue about the slippery 3 slope. Didn't Local 54 look to intervene with 4 Resorts plenary license in '79 and Boardwalk 5 Regency in 1980? You weren't even born yet. 6 MS. HERTZIG: No. I was born. I was 7 born. But I didn't have the honor, the 8 privilege to represent Local 54, and I 9 apologize if I'm incorrect about that. I 10 apologize. 11 COMMISSIONER FRULIO: Was -- anybody 12 could help me out, please. 13 MR. FOGARTY: I -- 14 CHAIR KASSEKERT: Mr. Fogarty? 15 MR. FOGARTY: I think I know the answer. 16 (Conferring.) 17 MR. O'GARA: Yeah. I have to -- I can 18 tell -- I have the cases here. To the degree 19 if it's helpful, there have been prior 20 petitions to intervene from Local 54. 21 MR. FOGARTY: That's what I've been just 22 told, also. 23 COMMISSIONER FRULIO: Okay. 24 MR. FOGARTY: But I don't know what you 25 all ruled. So I've given you nothing. 35 ITEM NO. 1 1 CHAIR KASSEKERT: Do you know, Mr. 2 O'Gara? 3 MR. O'GARA: Yeah. 4 I think I know, but you did not grant 5 them. 6 COMMISSIONER FRULIO: Okay. 7 MR. FOGARTY: We're not sure. 8 CHAIR KASSEKERT: Okay. 9 COMMISSIONER FRULIO: Thank you. 10 CHAIR KASSEKERT: We can depend upon Mr. 11 O'Gara's good faith. 12 MR. O'GARA: No. I have them here. 13 It's no -- 14 CHAIR KASSEKERT: Any other questions 15 before we -- 16 COMMISSIONER SOMMELING: I have one more 17 question. 18 CHAIR KASSEKERT: Sure. 19 COMMISSIONER SOMMELING: What is the 20 specific relief that you are seeking on behalf 21 of Local 54, for the record. 22 MS. HERTZIG: We would like that the 23 application to be denied. 24 COMMISSIONER SOMMELING: No more 25 questions. 36 ITEM NO. 1 1 CHAIR KASSEKERT: Anything else? 2 Anything else to say before we take a recess on 3 this matter? 4 MR. FOGARTY: Nothing for me. 5 MR. O'GARA: No, ma'am. 6 CHAIR KASSEKERT: Mr. O'Gara? 7 Miss Hertzig? 8 MS. HERTZIG: No. 9 CHAIR KASSEKERT: Anything else before 10 we take a recess? 11 MS. HERTZIG: No. 12 CHAIR KASSEKERT: All right. We'll take 13 a brief recess. 14 (The recess was taken at 10:38 a.m.) 15 CHAIR KASSEKERT: Going back on the 16 record briefly to announce that we will recess 17 until 11:45 in case someone wants to go to the 18 bathroom, make phone calls, get a hot dog. 19 (A recess was taken from 11:12 to 12:10 20 p.m.) 21 CHAIR KASSEKERT: Thank you. We'll go 22 back on the record. 23 Prior to my making some remarks, let me 24 ask if there are any other procedure matters 25 that need to be brought to our attention at 37 ITEM NO. 1 1 this time? 2 Mr. O'Gara? 3 MR. O'GARA: No, ma'am. 4 CHAIR KASSEKERT: Mr. Fogarty? 5 MR. FOGARTY: No, Chair. 6 CHAIR KASSEKERT: Thank you. 7 Counsel, in their oral representations 8 today and written submissions correctly set 9 forth the standards under our regulations and 10 the Uniform Administrative Procedure rules that 11 apply to our consideration of Local 54's motion 12 to intervene. Suffice it to say Local 54 does 13 not contend that it has a statutory right to 14 intervene, so that the determination on its 15 motion is left to our sound discretion 16 consistent with the Administrative Procedure 17 Rules. 18 Simply put, Local 54 has not 19 demonstrated that the outcome of the renewal 20 hearing where we will adjudicate the 21 suitability of Tropicana for relicense and the 22 plenary qualification of its new owners will 23 have the requisite, substantial, specific, and 24 direct effect on it to merit intervention. 25 Whether or not we relicense Tropicana with or 38 ITEM NO. 1 1 without its new owners, the Casino Control Act 2 ensures that the casino and hotel operations 3 will continue whether with the new owners at 4 the helm or under the auspices of an 5 appropriate statutory fiduciary. 6 Throughout that process, whatever 7 collective bargaining agreement Local 54 has 8 had with Tropicana will remain intact and 9 available for it to seek recourse consistent 10 with its terms. Essentially, Local 54 cares 11 about jobs both as to their quality and 12 quantity for its members. And while job growth 13 is certainly a hoped-for byproduct of the 14 economic revitalization of Atlantic City the 15 Casino Develop promises, the Commission is 16 always cautious to avoid insinuating itself 17 into labor management issues. Those matters 18 are best left to another forum. 19 As for adding measurably and 20 constructively to the scope of the case, the 21 Local 54 posits that its members have 22 first-hand knowledge of the physical condition 23 of the Tropicana since the merger and that it 24 has hired both a private investigator to 25 document conditions and a research analyst to 39 ITEM NO. 1 1 compare staffing levels with sanitary 2 inspection results. Whether that information 3 is relevant depends upon how the Commission 4 rules on Tropicana's motion to limit the scope 5 of the proceedings. Assuming solely for 6 discussion that Local 54's proffered materials 7 are relevant, its interests are not 8 sufficiently different from that of the 9 Division which plainly is already a party and 10 has raised those same concerns. Moreover, the 11 introduction in the renewal procedures of 12 whatever relevant factual information Local 54 13 may posses does not depend on its attaining 14 intervenor status. Although Tropicana may have 15 no inclination to advance those materials, the 16 Division in fulfilling its obligation to 17 provide the Commission with all information 18 necessary for all action on licensee matters 19 certainly will consider them, and that comes 20 from the statute, obviously. 21 To be sure, the Commission cannot deny 22 local 54's intervention solely because the 23 union's interests may already be represented in 24 part through the Division's presence as a party 25 in the upcoming proceedings. Rather, it is the 40 ITEM NO. 1 1 absence of a substantial specific and direct 2 effect on Local 54 that is the issue. 3 By the time Local 54 applied to 4 intervene, the Commission had already conducted 5 two prehearing conferences and had set the 6 hearing to start on November 20th, 2007. 7 Certainly, exchanging discovery and otherwise 8 incorporating Local 54 into the matter as a 9 full-fledged party in the short time left 10 before the start of the hearing is almost 11 certain to confuse and unduly delay the 12 procedure. 13 In apparent recognition of that 14 prospect, Local 54 counters in its initial 15 motion papers that any confusion and delay will 16 not arise because it is willing to present its 17 evidence to the Commission by declaration. 18 Local 54's statements certainly suggest that it 19 does not need the panoply of rights that 20 intervention as a party would afford, such as 21 presenting and cross-examining witnesses in 22 order to make its case before the Commission. 23 However, today, it plainly advanced its intent 24 to call witnesses. Thus, if Local 54 were 25 granted intervention, it cannot escape the 41 ITEM NO. 1 1 almost unavoidable delay which would certainly 2 accompany it, which is a fatal flaw in this 3 prong of standards for intervention. 4 Further, in assessing other matters that 5 appropriately bear on the Commission's 6 consideration of the pending intervention 7 request, it is significant that the branch of 8 the State Attorney General's Office that is 9 charged with enforcing the Casino Control Act 10 opposes Local 54's motion. 11 Unlike intervention, where the Movant 12 must have an interest that is substantially and 13 specifically and directly affected by a 14 proceeding's outcome, the proposed participant 15 needs to show a significant interest in that 16 outcome. 17 As with intervention, whether Local 54 18 can add constructively to the case largely 19 depends upon whether Tropicana prevails on its 20 motion to limit the scope of the renewal 21 hearing. Certainly, if Tropicana succeeds in 22 eliminating the "so-called" first-class hotel 23 and its collaborative staffing issues from the 24 renewal hearing, Local 54's participation, 25 which keys in on those two areas, would serve 42 ITEM NO. 1 1 no constructive purpose. If those issues 2 remain in the case, the Commission certainly 3 has the discretion to find that Local 54 would 4 have a significant enough interest in the 5 outcome of the renewal hearing to merit 6 granting it participation. 7 Now, necessarily, a participant takes 8 the case as he or she finds it. Thus, if 9 afforded participation, Local 54 could only do 10 so constructively and without undue delay by 11 most assuredly by abandoning any thought of 12 introducing independently the information from 13 its members, its investigator, and its research 14 analyst. Thus, in my view, only after the 15 record closes at the conclusion of the case 16 should Local 54 be allowed to participate, 17 either by making a brief closing statement 18 directed to the evidence off the record or, if 19 the Commission requires briefs from the actual 20 parties at the conclusion of the case, Local 54 21 may instead join in filing a written brief 22 under the same briefing schedule as pertains to 23 the parties, if time permits, confined as with 24 its optional oral presentation, to the evidence 25 in the record. 43 ITEM NO. 1 1 Accordingly, based on my prior comments, 2 I move to deny Local 54's intervention but 3 grant it participation on the limited terms I 4 have outlined, and I so move. 5 Is there a second? 6 COMMISSIONER EPPS: Chair -- 7 CHAIR KASSEKERT: Commission Epps? 8 COMMISSIONER EPPS: I would support the 9 motion with the admonition that this case and 10 the facts presented in this particular case in 11 the renewal that is underlying are uniquely 12 positioned and are so specific and unique in 13 this particular matter that participation would 14 be permitted only in this sub -- I mean, only 15 in this instance, and that does not invite 16 other interested parties from joining in other 17 matters as we proceed forward. 18 So with that understanding, I would 19 second the motion. 20 CHAIR KASSEKERT: Thank you, 21 Commissioner Epps. I accept those comments. 22 A motion has been made and seconded. 23 All those in favor? 24 (Ayes.) 25 CHAIR KASSEKERT: Opposed? 44 ITEM NO. 2 1 (No response.) 2 CHAIR KASSEKERT: Motion carries. 3 Thank you. 4 MS. HERTZIG: Thank you. 5 CHAIR KASSEKERT: Anybody want to take 6 just a brief break before we move on to the 7 next matter for consideration? No? 8 You want to just continue? 9 MR. O'GARA: Fine by me. 10 CHAIR KASSEKERT: Fine. Happy to do it. 11 The next matter for consideration today 12 is Tropicana's motion to limit. 13 Counsel, I'll ask that you please 14 proceed. 15 MR. O'GARA: Fine. 16 CHAIR KASSEKERT: Mr. O'Gara? 17 MR. O'GARA: Yes, ma'am. Just let the 18 Director get to the right seat. 19 MS. MAHER: It's bad when the Director 20 doesn't know what seat to sit it? 21 MR. O'GARA: I didn't say that. 22 This is our motion. It's a motion to 23 limit consideration in certain matters in this 24 hearing. 25 At the outset I want to you understand. 45 ITEM NO. 2 1 It is not a challenge to your authority. It is 2 not a challenge to your jurisdiction. It in no 3 way suggests that the Division lacks statutory 4 authority, nor does it suggest that the 5 Division doesn't have certain powers that are 6 enumerated. What it suggests is, is that this 7 agency is an administrative agency. A creature 8 of statute and, as such, is subject to the 9 Administrative Procedures Act. And it is not 10 what your powers are or not, it is what are the 11 requirements as to how you do certain things 12 with respect to the exercise of those powers 13 and the exercise of your judgment. 14 This motion is directed specifically 15 towards Section C and D, and I think I'm 16 correct in those two sections, which has been 17 referred to as the first-class hotel and 18 nonmandatory staffing sections of the report. 19 And what we are asking is that you look at 20 these and subject them to the analysis of 21 Metromedia, which is the leading case in this, 22 which is the analysis as to what is properly 23 the subject of adjudication by this agency and 24 what properly is the subject of rule making. 25 And I would cite to you by example that rule 46 ITEM NO. 2 1 making are things like when you dealt -- and 2 you all personally didn't, but when you dealt 3 with how many -- although Commission Frulio was 4 probably here. You know, could somebody have 5 more than half the slot machine market in 6 Atlantic City? You propounded a rule. And you 7 do that through a rulemaking proceeding. And 8 that means that you propose something or you 9 solicit proposals. You then get comments so 10 that you have an informed basis in which to 11 make a decision as to what the standard or rule 12 will be. You then propound and adopt a rule, 13 and it becomes applicable to people going 14 forward with respect to that. 15 In this instance we're dealing with two 16 things and which, I would suggest to you, areas 17 in which you have never intruded and, in fact, 18 would be prospectively moving into for the 19 first time in terms of the consideration of 20 casino licensure. 21 And with respect to casino licensure and 22 its renewal, you have propounded a number of 23 standards, both in the statute and then you've 24 implemented regulations in order to make them 25 comprehensible or understandable to people so 47 ITEM NO. 2 1 that they have objective standards and goals 2 that they have to meet. And they deal with, in 3 fact, who it is that has to qualify and what 4 status they are in. They deal, in fact, with 5 issues of what is required by way of these 6 applications, what type of information has to 7 be furnished. 8 With respect to things that come out of 9 the statute, things like financial stability, 10 this Commission went ahead and propounded a 11 regulation to define what that meant and so 12 that the licensees would have an idea of what 13 the criteria are that they have to meet in 14 order to be considered financially stable. And 15 they range from the payment of taxes and 16 maintaining adequate bank rolls to the ability 17 to refinance or satisfy long-term debt 18 obligations so that financial stability was not 19 a subjective term left to the eye of the 20 beholder on the one side or the other. 21 Now, with respect to the phrase 22 "first-class hotel," which is taken from the 23 preamble to the Act and with respect to 24 nonmandatory department employees, or what they 25 call quote-unquote staffing, let me turn first 48 ITEM NO. 2 1 to the staffing issue. The Commission has for 2 some time and specifically pursuant to areas 3 where you're mandated to make regulations. And 4 I might add, although those are mentioned in 5 the Attorney General's brief, the fact there 6 are enumerated 16 sections by which you are 7 mandated to propound regulations, nowhere in 8 the Administrative Procedures Act is it 9 suggested that you can't propound other 10 regulations. And certainly your history 11 indicates that you felt free to do so. 12 Why you are regulated to propound 13 regulations and engage in rule making with 14 respect to the exclusion of persons from this-- 15 excluded persons from casinos, you, in fact, 16 have enacted regulations to deal with a wide 17 range of things, not enumerated or mandated, 18 but because there are areas where prospectively 19 you want to set objective policies that people 20 have to meet to satisfy the criteria of the 21 Act. 22 With respect to nonmandatory employee 23 staffing, or what we'll call hotel side 24 staffing or nongaming-floor staffing, there is 25 no objective standard. There is, in fact, no 49 ITEM NO. 2 1 history or consideration in the past of this 2 issue. Your regulations, in fact, speak to not 3 conflicting with the ability of management to 4 adopt particular philosophies or styles with 5 respect to how they operate. Even your 6 mandatory regulations. 7 With respect to the mandatory 8 departments where you have taken specific 9 jurisdiction, you not only have gone ahead and 10 designated what those departments are in the 11 statute and regulations, you've gone so far as 12 to, in some cases, mandate what functions each 13 employee has to perform and, in fact, have 14 submissions of internal controls which are 15 subject to your review and approval, which talk 16 about the number of people that are required to 17 do those things in order to accomplish them in 18 the particular facility. And they cover areas 19 such as the cage and with respect to things on 20 the floor and security. 21 Here we find that you would be dealing 22 with staffing levels -- prospectively, I might 23 add -- without regard to any standard. One 24 would be hard pressed to understand whether the 25 standard was number of people as based on 50 ITEM NO. 2 1 number of rooms in hotels or footage in the 2 casino. One would not know. And -- it could 3 invite the idea of, well, if you don't do that, 4 no one -- you know, the place could fall down. 5 I mean, you know, you don't -- that's well, 6 that's not the case. There are other agencies 7 in the state which have jurisdictions over 8 certain matters which could be impacted by 9 that. 10 Certainly if, in fact, one were to say 11 that, you know, the Tropicana or the Marina or 12 Resorts were so understaffed that there's no 13 one in the kitchen, and they're serving cold 14 food, and everyone's going to get botulism -- 15 or whatever it is you get from eating cold 16 stuff -- there's a department of health that 17 inspects these things. There's requirements 18 they have to meet to take care of them. And 19 clearly implicated in that is that you have to 20 accomplish those things and must require a 21 certain level of staffing. If you, in fact, 22 propose to do that, and there's nothing that 23 suggests you can't, you would adopt a rule in 24 which you would have a proposal as to staffing 25 perhaps for hotel functions, for valet, for 51 ITEM NO. 2 1 restaurants, for whatever. You would then have 2 input and comment from a number of people, and 3 you would then develop a standard or a rule 4 that people would have to adhere to or at least 5 have notice of what that rule was. And I would 6 suggest that that rule would be probably 7 somewhat general but set standards based on 8 some criteria. As I said, I don't know whether 9 it would be size or whatever. But there would 10 be a rule and a standard. And it's the absence 11 of that and the absence of the ability to have 12 a meaningful objective standard that people can 13 adhere to and anticipate is what is the problem 14 of Metromedia and what has led other agencies 15 to enunciate policies in this way and then have 16 the Supreme Court and the Appellate Division 17 look at them and say, well, no, that's really 18 not adjudicatory. That's ruling making. 19 Directly in the instance of this agency, 20 one was -- and I think it's illustrative 21 because it points to -- it matters how noble 22 the goal is. When Elsinore and Playboy ran 23 their casino, there was a condition imposed in 24 conjunction with a license, I believe, which 25 called for meaningful contribution to certain 52 ITEM NO. 2 1 construction programs. I think which was 2 designed to encourage participation in a wide 3 range of people in the construction industry in 4 Atlantic City. And the Appellate Division 5 said, no, that that's something of general 6 application that you're going to apply probably 7 industrywide to everybody. And it's being done 8 prospectively, and it has an impact on 9 everyone. And that's the thing -- the type of 10 thing by which you have to do by rule. You 11 can't adjudicate it and apply it individually 12 in a case. 13 It was sent back for ruling making, and 14 then the Commission was free to consider a rule 15 as to whether they wanted to do that. It 16 wasn't unique to the circumstances of the case. 17 And I think that it's fairly easy for 18 you to look at this and say, well, how do I 19 know whether it's a rule or whether I can do it 20 in a hearing or what it is. And the standards 21 that are set forth in Metromedia and there's -- 22 they are cited in our submission, and I think 23 clearly they are available to you. Your 24 counsel have looked at them many times. Are -- 25 there's six of them. And the Supreme Court 53 ITEM NO. 2 1 said when a majority of them are implicated, 2 that's when you're ruling making. It's not a 3 hit, six for six. You know, you can't say, 4 well, only five of them are applicable, one 5 isn't, so you are now engaged in rule making, 6 not by adjudication. 7 The court suggested and, in fact, 8 directed that when the majority of these are 9 implicated, that's when you are in the 10 ruling-making arena. And they are -- it's 11 intended to have wide coverage, encompassing a 12 wide segment of the public, that would be the 13 casino. Well, if you were to apply standards 14 and entertain them with respect to something 15 you haven't done in 25 years as to what the 16 quote-unquote first-class hotel mean, that 17 would have wide implication for everybody 18 because it's a definition everyone would have 19 to deal with and meet with. 20 Likewise, if you were for the first time 21 to look at staffing and nonmandatory 22 departments and judge what is sufficient and 23 what isn't, that would be something that 24 prospectively has, you know, application to 25 everyone and is more properly the subject of 54 ITEM NO. 2 1 ruling making. 2 Is it intended to be applied generally 3 and uniformly to all similarly situated 4 persons? One would assume if you were going to 5 define or try to set out what first-class 6 facility means, you would apply it to everyone 7 because the same standard would be applicable 8 to all. Likewise, if you were to start to 9 apply standards as to how many employees are 10 required or what level of employment in certain 11 areas is outside of the discretion of 12 management in nonmandatory departments, you 13 would apply it presumably uniformly. You would 14 not seek to make an application to one and to 15 suggest that it was not applicable or going to 16 disregard it in other instances. 17 Is it designed to operate only in future 18 cases. That prospectively. One would think 19 so. It's never-- it's never been -- this would 20 be the first time. This would be prospective. 21 No one sitting today knows what that standard 22 is or how you would assess what an adequate 23 number of employees is or what, quote-unquote, 24 first-class means. It reflects an 25 administrative policy that was not previously 55 ITEM NO. 2 1 expressed in any explicit agency determination. 2 I think that's evident because no one has 3 pointed to the determination that you have made 4 in the past. And I think when you implicate 5 these, that is when it is rule making. 6 Now, I think -- and I want to address a 7 point that was made, again, in the Attorney 8 General's brief. There was a suggestion that 9 if you were unable to direct, let's say, 10 standards for a number of people to be employed 11 in each area, it would take away the power to 12 deal with, you know, people not giving you 13 information, and you couldn't look into whether 14 or not they didn't cooperate. That's not the 15 case at all. I don't think that the statutory 16 has admonition that one has to cooperate with 17 the Division of Gaming Enforcement or the 18 Casino Control Commission is applicable only to 19 information which is subject to your, you know, 20 specific rule or regulation. If the Commission 21 or Division requests information, as they often 22 do about things which don't apply to licensure 23 standards or, in fact, don't apply necessarily 24 to mandated regulatory matters, there's a duty 25 to cooperate. And whether or not the Division 56 ITEM NO. 2 1 wants to explore with individual qualifiers or 2 with the company whether or not they cooperated 3 with certain requests for information, it's not 4 necessary that that information be the subject 5 of your determination in this hearing. It is 6 only that has been the subject of a request 7 from the Division. 8 And the fact that it would not be 9 determined by you as a license standard does 10 not mean they can't utilize either cooperation 11 or lack of cooperation to examine whether 12 someone is suitable for licensure or suitable 13 to operate a facility. Doesn't have to be a 14 criteria that you apply to this hearing. 15 And I -- I would hope that you would 16 look at kind of the wisdom of what was 17 Metromedia and say, well, is there a reason why 18 the Administrative Procedure Act would, you 19 know, restrict an agency which has some plenary 20 powers? And I think you would say, yes. 21 Because there are five of you. And, you know, 22 if we each took a piece of paper, absent having 23 had a deliberate process where you set a 24 standard you may have different views as to 25 what quote-unquote first-class hotel means. If 57 ITEM NO. 2 1 one were to look at how they rank things, the 2 stars and everything, in some cases the square 3 feet of marble in a bathroom will determine 4 whether or not you get certain mobile awards 5 which counts for all the mobile -- or all the 6 marble, I'm told, versus carpet. 7 But there's no standard. There's no 8 objective for the applicant or petitioner to 9 meet. And if you want to, there's nothing that 10 stops you or stopped you in the past from 11 propounding this -- utilizing this rule-making 12 procedure to propound a regulation that would 13 be applicable to everyone. It would have the 14 benefit of what the Supreme Court has said you 15 have to do under the Administrative Procedure 16 Act, which is you'd have all the information 17 gathered through the rule-making procedure, 18 just as you have it now under whatever rule you 19 make. You have you get comments from time to 20 time adjusting based on those comments. 21 With respect to the area of nonmandatory 22 department employees, absent a standard, one 23 has no idea what -- what the answer is. What 24 is the criteria? I mean, what are you judging? 25 Is it something that, as you look over the 58 ITEM NO. 2 1 industry, that you might determine you want to 2 do rule making about? It may well be. You 3 would certainly want the benefit of not only 4 your own staff's wisdom about that, but you 5 would probably get numerous comments from the 6 industry and from other interested parties, 7 Local 54 and a lot of people about what those 8 levels ought to be. You would then determine 9 whether you want to and what they are. But 10 prospectively with no notice to an applicant to 11 apply them would be inappropriate, and I think 12 it would be offender the principle of 13 Metromedia. 14 I certainly think that the Commission 15 has a wide range of -- of powers, and you have 16 obligations. But with respect to casino 17 licensure, you have exercised them in a fashion 18 by setting forth standards of what is expected. 19 You have enunciated them clearly. You have, in 20 fact, defined what the process is by extensive 21 regulation. And if you want to change them, I 22 invite you to engage in rule making, but I 23 suggest to you that to do it in this forum 24 would be a violation of that standard that's 25 set forth in the Administrative Procedure Act 59 ITEM NO. 2 1 and in Metromedia. 2 I'll be glad to answer any questions you 3 have but -- 4 CHAIR KASSEKERT: Thank you, Mr. O'Gara. 5 MR. O'GARA: Thank you. 6 CHAIR KASSEKERT: Miss Maher? 7 MS. MAHER: Thank you. Good afternoon, 8 Chair, Commissioners. Yvonne Maher on behalf 9 of the Division. 10 Obviously at issue here this afternoon 11 is -- in this motion is the Division's report 12 regarding the casino renewal application of -- 13 the casino license renewal application of 14 Tropicana Atlantic City. And I would note at 15 the outset that the Division submits to you 16 that all of the items covered in the report are 17 items that are properly considered and which 18 are rooted in the licensing criteria by the 19 statute, the Casino Control Act, regulation, 20 and the case law, and we would argue that none 21 of the arguments would be stricken. 22 The Petitioner is now arguing that 23 perhaps the most controversial sections of the 24 Division's casino license renewal application 25 report should be stricken. Those are found in 60 ITEM NO. 2 1 Section 5 of the report, and they are, as 2 correctly noted by Mr. O'Gara, Section C and D. 3 Section C entitled layoffs. Section D entitled 4 first-class resort. Mr. O'Gara makes the 5 argument on behalf of the Petitioners that for 6 the Commission to consider these sections of 7 the report and perhaps make rulings on their 8 consideration would be to engage in 9 impermissible rule making contrary to the 10 Administrative Procedures Act and relies 11 primarily on Metromedia which was discussed at 12 some length by Mr. O'Gara in his argument. 13 The Division's argument would be, in 14 return, that Metromedia is not applicable in 15 this situation. That for the Commission to 16 consider these sections of the Division's 17 report would not be considered engaging in rule 18 making, and Mr. O'Gara correctly noted that the 19 six factors outlined in Metromedia by the New 20 Jersey Supreme Court, and I would respectfully 21 disagree with his assessment of those six 22 factors. The Metromedia case says, and I 23 believe the language is that, many or most of 24 the factors must be present for the -- for the 25 court or the agency to make a determination 61 ITEM NO. 2 1 that it is rule making rather than 2 adjudicating. I would argue to you that none 3 of the six factors apply here. 4 The first factor is the adjudication or 5 the rule intended to have wide coverage, 6 encompassing a large segment of the regulated 7 or general public rather than an individual or 8 select group. I would argue to you in this 9 particular situation, this decision, this 10 consideration is only going to apply to the 11 Tropicana in the context of this particular 12 licensing hearing and the decision the 13 Commission will make in that licensing hearing. 14 The decisions you make here on the license 15 renewal application will not necessarily apply 16 to any other casinos or any other licensing 17 hearings. The decisions you make here are 18 based on these specific sections of the 19 Division's report will apply to the Tropicana. 20 They will not encompass a large group. 21 The second factor is it intended to be 22 applied generally and uniformly to all 23 similarly situated persons? And, again, these 24 are factors and consideration unique to this 25 particular hearing. They are made in the 62 ITEM NO. 2 1 context of this particular hearing, and they 2 will apply to the Tropicana license renewal 3 application alone. 4 Number three is, is it designed to 5 operate only in future cases, that is 6 prospectively. And, no, it is not. It is 7 designed to operate here in the present for 8 this particular decision making in this case. 9 The fourth standard is, does it 10 prescribe illegal standard or directive that is 11 not otherwise expressly provided by a clearly 12 and obviously inferable -- obviously inferable 13 from the enabling statutory authorization? And 14 I would argue to the Commission, and I believe 15 our brief outlines, that there are several 16 statutes and regulations that are implicated in 17 this, in these sections of the report. We have 18 cited them in our brief, Section 84d of the Act 19 and rule 19:43-6.21a, among others. So 20 certainly the decision -- the Commission's 21 consideration of these sections of the 22 Division's report are rooted in legal standards 23 and legal directives which are found in the 24 Casino Control Act, which are found in the 25 regulations. You have statutory and regulatory 63 ITEM NO. 2 1 authority to consider these items in the 2 context of a license renewal hearing. 3 Fifth factor is does it reflect an 4 administrative policy that, one, was not 5 previously expressed in any official and 6 explicit agency determination, adjudication, or 7 rule; or, two, constitutes a material and 8 significant change from a clear past agency 9 decision on the identical subject matter? And 10 I would argue that this -- perhaps this -- this 11 is so. This is probably a new and unique 12 situation for the Commission to deal with. I 13 think we're in a different posture with this 14 licensing hearing than we may have been in the 15 past. 16 And, six, does the -- does it reflect a 17 decision on administrative regulatory policy in 18 the nature of the interpretation of law or 19 general policy? And, again, I would argue no. 20 What we are asking the Division to do is weigh 21 certain criteria which is provided in the 22 sections of the Division's report, which is 23 provided pursuant to the Division's 24 investigation, and weigh those with the 25 statutes and regulations which are in place to 64 ITEM NO. 2 1 determine whether the Tropicana of Atlantic 2 City is suitable and qualified for the 3 privilege of holding a casino license. 4 So I would argue to you, really none of 5 the six factors in Metromedia apply here and 6 the Metromedia rules should not be applied to 7 this particular case to strike these sections 8 of the Division's report. 9 And I would note, and I think we've made 10 this clear in our brief, these sections of the 11 report, the Section C entitled layoffs and the 12 Section D entitled first-class hotel facility, 13 those sections aren't here. We're not asking 14 the Commission to establish standards for a 15 first-class facility. We're not asking the 16 Commission to set minimal staffing requirements 17 for the casino or hotel operation. These 18 sections are a piece of the report that 19 indicates that pursuant to the Division's 20 investigation of this potential licensee that 21 the Division has real concerns about their 22 ability -- about the Tropicana's ability to 23 comply with the regulations. And these are 24 things -- these are criteria, these are items, 25 these are things discovered pursuant to 65 ITEM NO. 2 1 investigation that factor into that analysis. 2 We're not asking you to set minimal staffing 3 requirements. We're not asking you to set 4 requirements for a first-class casino. What we 5 are asking you pursuant to the regulations, 6 pursuant to the statute, the enabling statute, 7 to consider those things and find that they are 8 real criteria in your determination of whether 9 this Petitioner is entitled to a license. 10 The Division -- and let's just talk 11 about the layoffs for a second. The Division 12 alleges in its report that the Tropicana has 13 laid off approximately a quarter of their 14 workforce in less than a year. It should come 15 as no secret to them that this was a concern 16 for the regulators and was going to be and 17 needed to be addressed in the context of the 18 licensing here. 19 The Commission itself became involved in 20 requesting that the Tropicana require -- that 21 the Tropicana notify regulators about staff 22 reductions and corresponding numbers of those 23 laid off. The Tropicana provided the 24 notifications but as the Division notes in its 25 initial report, discrepancies have been noted 66 ITEM NO. 2 1 in the numbers supplied, and the Division has 2 asked in the licensing hearing context that the 3 Tropicana resolve those discrepancies. 4 D-40 section of the statute follows, and 5 I think we've cited this, and I want to 6 reiterate this, that each applicant shall 7 produce information, documentation, and 8 assurances as may be required to establish by 9 clear and convincing evidence that the 10 applicant has sufficient business ability and 11 casino experience as to establish the 12 likelihood of creation and maintenance of a 13 successful and efficient casino operation. 14 The Division submits this, that it is 15 the Tropicana of Atlantic City's burden to come 16 forward and show this Commission and show the 17 community how are you going to do this? How 18 are you going to show that you have sufficient 19 business ability and casino experience if you 20 cannot tell the regulators exactly how many 21 people you've laid off and how you account for 22 those layoffs? How are you going to be able 23 establish the likelihood of creation and 24 maintenance of a successful casino operation if 25 you've laid off approximately a quarter of your 67 ITEM NO. 2 1 staff in less than a year? How are you going 2 to move forward? Are more layoffs coming? How 3 do you maintain compliance with the regulations 4 with that type of philosophy? Those are 5 criteria and questions that the Commission is 6 entitled to consider in the context of this 7 information provided in the report. 8 You can also see the how the layoff 9 section plays into the next section in the 10 report, the section that discusses the 11 first-class hotel qualification. Have they 12 affected Tropicana's ability to present itself 13 pursuant to statutory requirement that this 14 facility is a first-class facility? 15 The information that is presented in the 16 Division's report comes from the Tropicana's 17 own files. These are patrons' complaints that 18 were presented to the Tropicana that the 19 Division's investigation gleaned from their own 20 files. 21 The purpose of pursuing this line of 22 investigation and presenting this information 23 to the Commission is not to adjudicate 24 individual patron complaints. But to note that 25 they exist. To note that that issue is out 68 ITEM NO. 2 1 there. Because, again, the Tropicana has the 2 burden of coming forward for the privilege of 3 having a casino license. 4 I say this to the Tropicana: You have a 5 file full of patron complaints about the 6 condition of your casino. Are you aware of 7 them? What have you done with them? What was 8 your response to them? You are required by the 9 Casino Control Act to operate a first-class 10 resort. What does that mean to you, Tropicana? 11 And how do you propose to do it? What is your 12 philosophy? How are you going to move forward 13 in the licensing procedure? 14 It is the Division's argument all of 15 these things are proper criteria to be 16 considered by the Commission in the context of 17 this licensing hearing. They are rooted in the 18 statutory authority of the Casino Control Act 19 as well as the regulations. This is not rule 20 making. We are not asking you to set minimum 21 standards for staffing or to set standards for 22 a first-class facility. But these are criteria 23 that are important under the Statutory 24 authority to maintain a successful, efficient 25 business casino operation, to run a first-class 69 ITEM NO. 2 1 facility. And the Tropicana must come forward 2 and answer these questions in the context of 3 the Division's investigation and report to the 4 Commission. 5 The layoff in the first-class resort 6 sections of the Division's report are simply 7 two pieces of an investigation and the 8 following report which addresses -- is in the 9 following report which addresses it, the 10 Division notes a grave concern to the 11 Commission about this Petitioner's apparent 12 disregard for compliance with the regulations. 13 These two sections are simply a piece of that 14 grave concern. 15 We do not -- again, we do not ask the 16 Commission to set minimal staffing requirements 17 or establish standards for a first-class 18 resort. We ask the Commission to consider 19 these things in the larger context, the concern 20 for a licensee to comply with statutory and 21 regulatory requirements which are very clearly 22 set forth for the privilege of holding a casino 23 license in the State of New Jersey. 24 Therefore, we would respectfully ask the 25 Commission to deny the Petitioner's petition. 70 ITEM NO. 2 1 CHAIR KASSEKERT: Thank you. 2 Before we hear from counsel again, let 3 me just see if Commissioners have any 4 questions? 5 COMMISSIONER EPPS: Not -- 6 CHAIR KASSEKERT: Not at this point? 7 Mr. O'Gara, response? 8 MR. O'GARA: If I might. Number one, 9 with all due respect, I've read this report a 10 number of times. And those sections don't say 11 this is evidence deduced about business 12 ability. They say first-class hotel and they 13 say layoffs. And I took from the Director's 14 remarks they concede that the Commission should 15 not investigate, should not adjudicate, and 16 should not determine anything dealing with 17 staffing levels. That was not the purpose of 18 this. That is not the reading I gave the 19 report. And I would ask you to rule that, you 20 know, that that is rule making. 21 With respect to first-class hotel, this 22 is an undefined term. It is prospective. 23 Where else has it ever been applied? What does 24 it mean? The Director suggested that if they 25 went and found complaints in a patron complaint 71 ITEM NO. 2 1 file -- you've done a lot of renewals. There 2 are complaints in other patron complaint files 3 in other hotels. If this is a stunning 4 surprise to you, I'm sorry to spring it on you. 5 Does that relate to number of occupied room 6 nights? Does it -- I don't know what it 7 relates to. But absence a framework as to what 8 you're to consider them for, as to whether an 9 undefined definition of "first-class" or what, 10 then, you know, you need a rule. You need 11 something to guide people as to what standard 12 they're trying to meet. 13 If, in fact, the Division wants to take 14 patron complaints and offer them to you as 15 exhibits in the context of questioning a 16 witness about his business ability, that is one 17 thing. That is not a standard for licensure. 18 And that's why we, in fact, filed the motion we 19 did. 20 I -- I respectfully disagree with the 21 Director as to which factors were met as to 22 prospective. I believe she said it applies 23 here and now. That means here and now 24 prospectively. It has never been applied in 25 the past. It is new. Is it an industrywide 72 ITEM NO. 2 1 application? The Director suggested, no, only 2 to Tropicana. I dare say that you would not 3 apply a standard as to minimum staffing for the 4 valet section that applies to only one of 11 5 hotels in Atlantic City. I mean, that would be 6 a basal absurdity. So I believe we are in that 7 area, and I ask you to carefully analyze that 8 and make the determination. 9 As I said at the outset, nothing that we 10 suggest that the Division isn't free to 11 question witnesses or to say we requested 12 certain information, we don't believe you gave 13 it to us, ask questions about it, and determine 14 and argue to you that someone is noncooperative 15 or that someone hasn't met an obligation to 16 cooperate. That doesn't mean that a criteria 17 for licensure is number of employees or how 18 people were laid off. That's a whole different 19 issue, and that's not the subject of a report. 20 And I invite you to analysis. And I believe if 21 you do, you will see it is the subject of rule 22 making. 23 Thank you. 24 CHAIR KASSEKERT: Miss Maher? 25 MS. MAHER: No further comments. 73 ITEM NO. 2 1 CHAIR KASSEKERT: Okay. Let me ask if 2 there are any questions. 3 COMMISSIONER EPPS: I have -- 4 CHAIR KASSEKERT: Commissioner Epps? 5 COMMISSIONER EPPS: Mr. O'Gara, I have a 6 few questions based on your comments. 7 In this particular matter where you 8 suggest that the analysis that is recommended 9 by the Division would be tantamount to -- if we 10 engage in it, it would be tantamount to rule 11 making, how does that jibe with the 12 deregulation that occurred late '80s that took 13 a lot of these specifically enumerated items 14 out of the Act but left language in that 15 generally suggested by the legislature that we 16 consider this quality and the type of 17 establishment that each licensee maintain? 18 MR. O'GARA: Well, I think to some 19 degree you got out of that business when you 20 deregulated, and what they meant was that you 21 still have requirements about how big these had 22 to be and -- but specifically, if there were 23 areas that you had concern about, to be 24 first-class hotel for example, you know, if 25 proposals began to came -- had no restaurants 74 ITEM NO. 2 1 in them. You know, that could be a subject in 2 which you said that's an area which isn't a 3 detailed micromanaging of it but we think is an 4 amenity which is required, you could do that by 5 regulation. 6 But to now go backwards and say 7 prospectively, we have never given you a 8 standard. The standard is undefined. And now 9 the standard you'll be held to is X number or Y 10 number is the very thing that the -- I think 11 the Appellate Division and the Supreme Court 12 has told you that you can't do. 13 COMMISSIONER EPPS: And I guess that's 14 my question. If we can now dictate by a rule 15 ten criteria or whatever, doesn't that fly in 16 the face of the regulation that the ord -- that 17 the statute that the legislature specifically 18 took out of the Act specifically enumerating 19 things that we have to do? I mean, we would be 20 going -- if we followed your process by 21 creating criteria, we would be, in fact, going 22 backwards in time setting forth dictates that 23 have been removed. So -- 24 MR. O'GARA: Well, Commissioner Epps. 25 COMMISSIONER EPPS: Your suggestion is 75 ITEM NO. 2 1 that we do create these rules that go backwards 2 and put us back before the legislature took 3 them specifically out. 4 MR. O'GARA: The problem is you have no 5 rule now. So what you'd be dictating is we 6 have no standard. We have articulated no 7 standards, but we will deny your license 8 because you failed to employ X number of people 9 in the food and beverage department or you've 10 laid off people. There was no stricture about 11 that. There should -- there could be a -- a 12 rule doesn't have to be to each department. A 13 rule could be a rule which deals with what 14 expected level -- just like you do now with 15 respect to mandatory departments where you talk 16 about not how many people it takes but what 17 particular security posts have to be staffed at 18 whatever time. 19 Absent that, how does one guess what the 20 requirement is? I -- it would be a guess at 21 best to know, you know, it would be facility 22 specific, and it has never been a standard you 23 considered before. 24 COMMISSIONER EPPS: Okay. That's 25 interesting because I'll go to that point next. 76 ITEM NO. 2 1 You suggested this is the first time that we've 2 dealt with this. 3 MR. O'GARA: Uh-huh. 4 COMMISSIONER EPPS: But since the 5 deregulation period, all of the licenses that 6 we've renewed or granted or whatever have to -- 7 I mean, all the licensees have to comport with 8 the Act, and I suggest that all of Sections 83, 9 84 apply every time we consider a license. So 10 is this really the first time we've consider 11 this? Or is this the first time it has become 12 an issue. Because don't we consider it every 13 time and find that it is suitable and we move 14 forward? It seems to me that this is not 15 necessarily the first time that we've dealt 16 with it. This is may be the first time that a 17 licensees has tripped over the hurdle as 18 opposed to clearing it without any difficulty. 19 MR. O'GARA: Commission Epps -- 20 COMMISSIONER EPPS: Is there any -- 21 MR. O'GARA: If I can answer the first 22 part first. 23 I've never been involved in a licensing 24 or renewal proceeding where anyone suggested 25 the number of employees that have worked in the 77 ITEM NO. 2 1 building, and that's an honest answer. I have 2 never -- I don't know that anyone has ever 3 analysis done as to how many people and what 4 departments or seasonally where people have 5 been laid off in ones I have done. It had 6 never been explored, that information has never 7 been requested or furnished. There has never 8 been a suggestion that there was a standard or 9 number that implicated other things. 10 So I think that if it's going to become 11 one of those determinative licensing standards, 12 just as financial stability is something you 13 always consider, you propounded regulations so 14 people had some idea what it meant beyond the 15 words of, you know, stable, means stable. You 16 said well, it means this, this, that and this. 17 If one were to talk about numbers of employees 18 that are required to operate it, one would have 19 certain guidelines so a person knew what those 20 trips were that they were going over. 21 COMMISSIONER EPPS: Well, it seems to me 22 that if we consider Section 83 or 84 every 23 single time that we review an applicant, and 24 there hadn't been an issue made at either of 25 these hurdles, I think that, as I indicated, 78 ITEM NO. 2 1 it's probably because the hurdle was cleared so 2 sufficiently that we never had to drill down 3 deeper to see why there was a difficulty 4 clearing the hurdle. 5 However, when there is a difficulty 6 clearing a hurdle is when -- and only when you 7 began to look at the specific hurdle and find 8 why you have difficulty climbing over it. And 9 I think that's what makes this different from 10 other cases. 11 MR. O'GARA: I -- I -- 12 COMMISSIONER EPPS: I don't think this 13 is the first time we've looked at or had to 14 deal with it except for more specifically it's 15 the first time someone has had difficulty to 16 clearing the hurdle, and we get to why you have 17 at difficulty clearing the hurdle, and at that 18 point you go, oh, well, you can't look at my 19 shoes because, you know, you never told me you 20 were going to took look at what type of shoes 21 I'm wearing. I'm just running the race. I'm 22 not sure you can do that. 23 MR. O'GARA: Commissioners Epps, you've 24 got me as a disadvantage. I -- you're telling 25 me that you have looked at employee staffing 79 ITEM NO. 2 1 levels in matters of licensing -- 2 COMMISSIONER EPPS: No. I'm not telling 3 you that. What I'm saying is if we look at 4 business -- 5 MR. O'GARA: Experience. 6 COMMISSIONER EPPS: -- experience or 7 ability to -- 8 MR. O'GARA: I agree that might be 9 evidential. That's not a standard. You say, 10 no, we're not looking at employee levels. 11 We're not looking at the first-class hotel. 12 We're looking at business experience. You can 13 introduce evidence about that. But it's not a 14 criteria you specifically meet. They suggest 15 it's a criteria that you specifically meet. 16 You meet the first check off, business 17 experience, financial stability, first-class 18 hotel. You know, employee staffing. If those 19 are things within business experience, then 20 there would be evidence about them. They are 21 not criteria that you go over specifically. 22 That's what I'm saying to you, Commissioner. 23 COMMISSIONER EPPS: Okay. And I guess 24 what I'm asking you is, in the process of doing 25 our review of an applicant, aren't those things 80 ITEM NO. 2 1 things that we consider in the course of this 2 review? 3 MR. O'GARA: Again, I -- you have me at 4 a disadvantage. I've submitted license 5 applications. I am not aware that in the 6 course of them you ever examined or anything 7 was submitted to you that responded to the 8 issue of first-class hotel nor anything which 9 responded to staffing with respect to 10 nonmandatory department. I have never seen 11 that as part of an application or compilation. 12 I certainly am aware that, you know -- I 13 utilized the statistics you put out monthly 14 about employment, which show full-time 15 employees and everything. You have that 16 information available to you. But it's never 17 been something which has been specifically 18 incorporated into the application nor the 19 subject of, you know, the prehearing order 20 where this, this, and this are issues just as 21 financial stability. So that's what I'm saying 22 is, if there are going to be those kind of 23 specific issues, they require the kind of rule 24 making. 25 I'm reminded that, you know, it's kind 81 ITEM NO. 2 1 of like if you want to include more people on 2 the qualifier list, that's what the Central 3 Credit case was about. It's about if you're 4 going to incorporate them in that way. I have 5 no argument with the business ability 6 arguments. If you want to question a person, 7 suggesting that their business ability -- 8 there's a question about it. You ask them, do 9 you think you need this many people or that 10 many people? Do you think that's sufficient? 11 Or have you had an untoward number of 12 complaints? Fair. I -- but to say, no. 13 Layoffs or the number of employees are an issue 14 to be considered is not a criteria you set. 15 I think we're saying the same thing but 16 you're suggesting, oh, this, this, and this. I 17 say if you want to do that, and you're going to 18 denominate those things and have them as 19 separate sections submitted just reported on, 20 not as evidence that people are interrogated 21 about that that requires the rule, 22 Commissioner. 23 COMMISSIONER EPPS: Okay. And so just 24 to understand, if I hear you correctly, what 25 you're suggesting is the way that the report 82 ITEM NO. 2 1 was crafted created the problem because the 2 report specifically makes these criteria as 3 opposed to areas that could be investigated 4 during the course of the -- of the -- 5 MR. O'GARA: I -- dare to suggest to you 6 that the Division can investigate anything they 7 want. I think I started out by saying there's 8 no suggestion there's a limitation on their 9 abilities or powers. 10 The question is what are the criteria 11 that you utilize in licensure? If business 12 ability is one well-known, if they're -- in 13 fact, there are going to be questions about 14 that, that's fine. But to suggest that among 15 the other things we check off as we go along, 16 well, the first-class hotel section now because 17 that's a required -- that would have to be the 18 subject of regulation. In fact, you are -- you 19 were going to have employee staffing levels, 20 that would have to be the subject of 21 regulations. And I suggest that section of the 22 report is inappropriate because that's, in 23 fact, directly what it says. If they want to 24 bring that information up in questioning people 25 or if they have evidence of it is one thing. 83 ITEM NO. 2 1 But to set out that report and suggest them as 2 things which had to be met absent the rule, 3 that is what is inappropriate, and that's what 4 Metromedia is about, in my view. 5 COMMISSIONER EPPS: Okay. Excuse my 6 confusion or ignorance or whatever we want to 7 call it, but I'm a little bit -- I'm having 8 difficulty understanding the nuance that -- or 9 the distinction that we're making here. If 10 what I hear you saying is these are things that 11 they can investigate, ask questions about, deal 12 with in their cross-examination, in their 13 presentation of their case with respect to 14 Tropicana's licensing issue, during 15 cross-examination or whatever, they can delve 16 into these areas, what are we limiting then if 17 you say they should be limited in those areas 18 because they set criteria? 19 MR. O'GARA: I'm suggesting that, number 20 one, that you cannot deny someone a license on 21 the basis they did not operate a first-class 22 hotel until you propound a rule what 23 first-class hotel is. You can't not deny a 24 someone a license on the basis of the fact that 25 they failed to have a certain number of 84 ITEM NO. 2 1 employees until you set forth by regulation 2 what the standard is for determining the number 3 of employees. That's what I'm suggesting to 4 you. And I'm suggesting that's how the report 5 is read. 6 I'm also suggesting to you that you 7 would have to determine at the time if someone 8 said -- you know, a witness is asked, we think 9 you lack -- the issue is business ability. Are 10 you aware you have six patron complaints? 11 You'd have to determine whether or not that 12 is-- has anything to do with business ability, 13 is probative. I mean, that's something, 14 which -- you know, there could be some question 15 whether that reflects on business ability. 16 Have it related and tied up. It's not 17 something that's subject properly of a report 18 and a suggestion it's a criteria for issuance 19 of the license. That's what I'm suggesting. 20 COMMISSIONER EPPS: Okay. 21 CHAIR KASSEKERT: Ms. Maher? 22 MS. MAHER: Nothing further, Madame 23 Chair. 24 CHAIR KASSEKERT: Anything to add? 25 Commissioner Frulio? 85 ITEM NO. 2 1 COMMISSIONER FRULIO: I'm very much 2 interested in knowing what Tropicana means when 3 it says -- not Paul O'Gara, but Tropicana means 4 when it says "first-class hotel and casino." 5 Do you know? 6 MR. O'GARA: I assume they mean that 7 they have a very nice facility. I mean, to say 8 that -- I'm familiar with what people say when 9 they say things like they have five stars and 10 five diamonds which they advertise for this 11 because there's criteria, you know, they have 12 so much marble. 13 COMMISSIONER FRULIO: Yeah. 14 MR. O'GARA: You know, it's -- I don't 15 know that anyone -- I think they advertise they 16 have certain features. They advertise they 17 have this hotel. I don't know what they -- but 18 certainly if one wants them to meet a standard 19 that you want to say I think it means this -- 20 COMMISSIONER FRULIO: Yeah. 21 MR. O'GARA: -- I think that you have an 22 obligation, and I think the court says you have 23 an obligation to tell them what the standard is 24 they have to meet. To define it. 25 COMMISSIONER FRULIO: Okay. 86 ITEM NO. 2 1 MR. O'GARA: To make a rule and say 2 first-class hotel will meet the following: You 3 have to do this, this, and this in order to 4 meet it. If you want to make it more than a 5 generic term. Just as if when you want to make 6 "financial stability" more than an generic 7 term, you propounded a regulation. 8 COMMISSIONER FRULIO: It does make it 9 difficult for me to come up with a meaning of 10 first-class, let's say. I think a first-class 11 as meaning the Waldorf Astoria, as if -- 12 MR. O'GARA: Yeah. I agree with you, 13 Commissioner. I don't know what it means, 14 either. 15 COMMISSIONER FRULIO: If I go gown to 16 the Trop, you know, and I look around, to me, 17 if it doesn't come up to par with the Waldorf, 18 then I'm not going to think it's a first-class 19 casino. 20 MR. O'GARA: But I dare say, 21 subjectively, I walk in a lot of them. You 22 know, if you are going to use the standards of 23 the St. Regis or the Mandarin, you know a lot 24 of people here are in trouble. You know what 25 I'm saying? Different standards. 87 ITEM NO. 2 1 That's what my argument is. Subjective. 2 That's just it. It's not, you know, what you 3 think or I think. It requires a rule. 4 COMMISSIONER FRULIO: Okay. 5 CHAIR KASSEKERT: Commissioner Epps? 6 COMMISSIONER EPPS: Mr. O'Gara, just one 7 more question. 8 MR. O'GARA: Yes, sir. 9 COMMISSIONER EPPS: Engage me in an 10 intellectual exercise or academic exercise, if 11 you will. 12 MR. O'GARA: I'll try. 13 COMMISSIONER EPPS: We have a 14 established test, good honesty, character, and 15 integrity. We haven't set a rule for that, 16 either. We haven't set criteria and a rule for 17 that. It's almost like the Supreme Court in 18 some other famous case, "You know it when you 19 see it." How does this differ, if you will? 20 MR. O'GARA: Well, I think you set 21 criteria. I think you have a lot of certain 22 criteria. 23 COMMISSIONER EPPS: In a regulation? 24 MR. O'GARA: Pardon me? 25 You, in fact, take forms in which you 88 ITEM NO. 2 1 require people to disclose to you certain 2 information on which you base those answers, 3 you know, base those determinations. People 4 give you all the information about their 5 arrests, their criminal record, about their 6 finances with respect to, you know, various 7 things they've done. From that you then 8 determine whether it's reflective. So they 9 know the universe of information that's being 10 considered for the standards being applied. 11 Just like from the applications you get for 12 people with respect to getting a license to 13 operate, there are certain things you have to 14 indicate. What you do, you have to submit 15 internal controls about how you're going to 16 operate the place so you know what the 17 standards are. 18 Here we would be talking about, you 19 know, first-class hotel absent anyone ever 20 asking for any submissions so one could judge 21 what the standards were by the questions that 22 were even asked. I think it's much more 23 alogous to the type of things -- the purpose is 24 noble but, you know, until you outline why the 25 noble purpose, you know, as it was in Elsinore. 89 ITEM NO. 2 1 And I think that to the degree answers your 2 question. You have a framework in which 3 everyone knows what the information is, what 4 information is elicited, and from what the 5 conclusion's going to be drawn. 6 Here you have no idea. One suggestion 7 is that it would be by taking a month's worth 8 of patron complaint files. That's a very 9 difficult standard as opposed to the kind of 10 information that's sought in a PHD or BDA. I 11 think that would be more responsive. 12 COMMISSIONER FRULIO: One question. 13 CHAIR KASSEKERT: Commissioner? 14 COMMISSIONER FRULIO: Let's talk about 15 staffing. Fact: Tropicana did ask, I believe, 16 last March that they wanted to go down to one 17 locksmith. 18 MR. O'GARA: I'll take your word for 19 that. 20 COMMISSIONER FRULIO: You've got 2,000 21 hotel rooms. You've got 4,000 slot machines. 22 That's insane. What do you have to say about 23 that? 24 MR. O'GARA: Yeah. I -- I don't have 25 much to say about it. I mean, clearly, you 90 ITEM NO. 2 1 could -- you know, one would suggest that, you 2 know -- there's no law against committing 3 suicide. 4 (Laughter.) 5 MR. O'GARA: In this state, that I'm 6 aware of. You know, I've often said that there 7 is -- people have different operating 8 philosophies. If you want to mandate by rule 9 an operating philosophy, you have to do it by 10 rule. I -- again, I would suggest to you, I 11 don't know how many locksmiths there are at 12 other places or whether in certain places they 13 rotate them monthly, but these are all things 14 you may want to do, but you're doing it 15 prospectively, Commissioner. And that is not 16 the criteria that you have selected in the past 17 to do. And if you want to apply it, you could 18 have a rule making rule where people come in 19 and say, much to your chagrin and mine, they 20 all wanted to one locksmith and share him in 21 the city, and then you have to determine 22 otherwise. That's why you do rule making. 23 CHAIR KASSEKERT: And -- 24 MR. O'GARA: And I dare say that you -- 25 COMMISSIONER FRULIO: You do have 91 ITEM NO. 2 1 internal controls, though. I mean, you did 2 suggest, you Tropicana, did suggest they go 3 down to one-- 4 MR. O'GARA: Of course we have internal 5 controls. We're talking about areas where the 6 number of employees inside of hotel towers. 7 You don't have internal controls. You have 8 union contracts, not internal controls. 9 COMMISSIONER FRULIO: All right. 10 MR. O'GARA: So I don't know how we 11 would guess. 12 COMMISSIONER FRULIO: I'm telling you we 13 did stop that. But the thing is I'm still 14 stuck on that, how anybody and in their right 15 mind would suggest to go down to one locksmith. 16 MR. O'GARA: That's a fair question to 17 ask them. 18 CHAIR KASSEKERT: Doesn't that go to the 19 heart of business ability? 20 COMMISSIONER FRULIO: Yeah. 21 MR. O'GARA: Business abilities. But 22 doesn't that -- fine. Business abilities. 23 That means don't -- no first-class hotel, no 24 how many people have you employed. It's 25 specific things and how they relate to that 92 ITEM NO. 2 1 standards. That is not what this report says. 2 CHAIR KASSEKERT: So are you saying if 3 the Division had taken out the word 4 "first-class facility" and "layoffs." 5 MR. O'GARA: Well, they said -- 6 CHAIR KASSEKERT: -- then all this 7 information would be pertinent? 8 MR. O'GARA: I don't know if it's 9 pertinent. It's certainly -- if that's the 10 issue, that's not what this report says. And I 11 defy you to point to me that it says that. It 12 stays standard first-class hotel hasn't been 13 met. What is the standard? In you're not 14 going to consider first-class hotel, that's 15 what I've asked you not to do. If you're not 16 going to consider nonmandatory department 17 employee levels as a licensing standard, that's 18 what I've asked you to do. If they say that's 19 evidential to another issue, then you'll 20 determine whether it's admissible as 21 evidential. But they're saying it goes to 22 those two issues. I'm saying they're not 23 separate issues. If business ability -- it 24 could be what Commissioner Frulio thinks. It 25 could be locksmiths. To somebody else it could 93 ITEM NO. 2 1 be how they handle their own affairs or other 2 businesses they own and whether they are 3 responsible in them. Those are all things 4 which are business ability. And that's a 5 standard. 6 This was first-class hotel. You didn't 7 maintain one. You shouldn't get a license. 8 Take those out, and you go back to those 9 issues. But the report did not talk about 10 business ability, Chair. At least not as I 11 read it. And, you know, someone can point out 12 me my lack of understanding in the language in 13 that point. I'm more than willing to concede 14 that. 15 CHAIR KASSEKERT: Questions? 16 Commissioner Epps? 17 COMMISSIONER EPPS: No. 18 CHAIR KASSEKERT: No? Okay. 19 Let me -- Commissioner Fedorko? 20 VICE CHAIR FEDORKO: One. I have one. 21 CHAIR KASSEKERT: Sure. 22 VICE CHAIR FEDORKO: In listening to all 23 this, Mr. O'Gara, when you do an investigation, 24 and I think you've done a few, isn't it -- 25 isn't it the responsibility to collect as much 94 ITEM NO. 2 1 information as you can and then give it -- in 2 this case give it to the Division and then let 3 the Commission decide whether it's something 4 that we need to consider or relevant or -- 5 MR. O'GARA: Yeah. It may be, but I 6 think that what was suggested here, number one, 7 was that here's information. Here's a couple 8 of standards. This applies to the first-class 9 hotel standard which you have to consider. So 10 the first argument is what first-class hotel 11 standard? 12 Now, if it's applicable to business 13 ability and someone said with respect to Mr. X 14 or with respect to the company and their 15 business ability, we offer this, that's not 16 what is said there. And then, if that were the 17 case, I would say to you then we would get into 18 the issue of what's probative of business 19 abilities and certainly thing certainly are. 20 Commissioner Frulio's question may be. 21 I again point to the fact that you would 22 have to determine whether six patron complaints 23 taken from a file are probative of business 24 ability. That's something you'd have to 25 determine. That's not what I think was 95 ITEM NO. 2 1 suggested here. It was suggested there was a 2 standard about -- it's called layoffs, but it's 3 staffing, and there was a standard about 4 first-class hotel. That -- that is what all 5 this is about. 6 VICE CHAIR FEDORKO: Okay. 7 COMMISSIONER EPPS: Okay. 8 CHAIR KASSEKERT: Commissioner Epps? 9 COMMISSIONER EPPS: Well, I think we're 10 going around in circles a bit, but just engage 11 me one more time. Because 83i specifically 12 requires or says that we're authorized to 13 require each casino licensee to establish and 14 maintain an approved hotel, which in all 15 respects -- which is in all respects a superior 16 first-class facility of exceptional quality 17 which will help restore Atlantic City as a 18 resort towards a convention destination. 19 MR. O'GARA: Right. 20 COMMISSIONER EPPS: What you're then 21 saying is, unless and until you dictate what 22 the criteria for establishing that is, you 23 can't use that as a guide to determine whether 24 or not somebody gets their license. 25 MR. O'GARA: That's what I'm saying -- 96 ITEM NO. 2 1 COMMISSIONER EPPS: That's what you're 2 saying. 3 MR. O'GARA: I'm telling you that's what 4 Metromedia says. If you -- it may well be that 5 as you pass through life, you determine it's 6 not an issue. Because you think -- there are 7 certain things in life you can ride by and say, 8 I don't think that's an issue, you know. If 9 you want to implicate that, I think you have to 10 make rules as to what you mean. In other 11 words, you had to say they were all financial 12 stable. And you said to yourself, what does 13 that mean? And then you said, well, it means 14 have this and pay your taxes and be able to do 15 this with your debt. If first-class hotel 16 means have certain amenities, maintain certain 17 staffing, have certain valet times, then you 18 would set them forth. But you would not do it 19 prospectively, and you will not say that the 20 rule only applies to one and not to all. 21 That's what I'm saying. 22 COMMISSIONER EPPS: But I guess my 23 question then is, but hasn't the Commission by 24 operation indeed said that every other place 25 that has been licensed or renewed is a 97 ITEM NO. 2 1 first-class because it meets the test? 2 MR. O'GARA: I -- to -- 3 COMMISSIONER EPPS: Because it meets -- 4 MR. O'GARA: To no? I think to the 5 degree -- 6 COMMISSIONER EPPS: Are you saying that 7 we've not -- we've ignored it? 8 MR. O'GARA: You haven't specific done 9 it. To the degree that in renewing a license 10 you've said there's been compliance with 11 everything in the Act, that's true. I don't 12 know that you've ever specifically looked at 13 and said this meets that standard and, 14 accordingly, is satisfactory for licensure. 15 You've never implicated that standard. If, in 16 fact, you wanted to, I would suggest you 17 propound a regulation. 18 COMMISSIONER EPPS: I mean, I guess what 19 it comes down to is when you fall on the good 20 side of first-class facility, it's never a 21 problem. But when you fall on the bad side of 22 it, the question is how far on the bad side can 23 you go? 24 MR. O'GARA: I geese the question is how 25 do you fall? What's the fulcrum on which 98 ITEM NO. 2 1 you're balancing? 2 COMMISSIONER EPPS: I -- and I'm 3 certainly not arguing with you as much as I'm 4 trying to wrap my head around -- 5 MR. O'GARA: I'm not arguing with you, 6 Commissioner. 7 COMMISSIONER EPPS: -- the concept of 8 where -- 9 MR. O'GARA: You say fall on the bad 10 side. What's the standards between good and 11 bad? 12 COMMISSIONER EPPS: I guess that -- I 13 guess that's based on all that's presented to 14 us. 15 MR. O'GARA: But whatever is presented 16 to you, measure against something. In other 17 words, you'd say, this side is good. This side 18 is bad. And here's what I'm going to use as a 19 dividing line to decide it. What I'm saying to 20 you is the Applicant has to know the dividing 21 line. You know, because it could be as 22 arbitrary as, well, certain amounts of marble 23 or flat screen TVs, not tube TVs. You know, 24 any number of -- 25 COMMISSIONER EPPS: Couldn't it be as 99 ITEM NO. 2 1 measurable as the last time you yourself met 2 the hurdle? I mean, cleared the hurdle? 3 MR. O'GARA: I mean -- I don't -- 4 COMMISSIONER EPPS: Meaning Tropicana. 5 They have renewed. 6 MR. O'GARA: But what's -- what -- in 7 other words, other than if you took employee 8 counts, which we say are not the factor and 9 there's -- what else do you measure it by? How 10 do you determine that? Do you determine it by, 11 well, they had six patron complaints, and there 12 was one overflowing wastebasket? And do you 13 say, well, I have to check. Maybe the Marina 14 had two overflowing wastebaskets and a pipe 15 that sent water all the way through the 16 building and -- I mean, I don't know how you do 17 it. If you told me the standard, I'd know how 18 to do it. 19 I understand what you're saying. You 20 have to be on the right side of the line. What 21 I'm saying to you is, if you want to make it a 22 specific factor, you have to tell me the line. 23 COMMISSIONER EPPS: Where is the line. 24 Well, then what is -- taking your 25 comment earlier then, if business ability is 100 ITEM NO. 2 1 something that we can consider and -- 2 MR. O'GARA: Right. 3 COMMISSIONER EPPS: -- and we don't 4 necessarily have to have a standard for, what 5 is the line for business ability? 6 MR. O'GARA: I think you've defined that 7 line. You have taken -- you have defined the 8 information in the universe that you will look 9 at, and from that information you -- people 10 know what is expected and reasonably can 11 anticipate what you're going to ask. 12 COMMISSIONER EPPS: Where was that? 13 Where do we -- 14 MR. O'GARA: You prescribe a form in 15 which you have to give all kinds of 16 information, objective information about 17 yourself and about your business. You know, 18 considering insolvencies and bankruptcies, your 19 commercial dealings. They pull credit reports 20 about you. All kinds of information about 21 which that judgment is made. 22 Here I have no idea neither what the 23 standard is or what the universe of information 24 is. Is it based upon hotel rooms? Is it based 25 upon type of carpet? Is it based upon number 101 ITEM NO. 2 1 of food outlets? Is it based upon number of 2 employees? Is it based upon amount of marble? 3 Is it based upon the number of flat screen 4 versus tube TVs? Yeah. I have no idea what 5 that would mean. And to the degree that, you 6 know, people do use these terms, they seem to 7 have a wide variance, Commissioner. I mean, 8 you know, one guy's four diamonds is somebody 9 else's two star. And somebody else's first 10 class and superior. Some of them are defined 11 terms in these agencies that rate hotels. 12 That's what I'm saying. If you have a 13 line, gladly meet it. I just don't know what 14 it is to begin to challenge it. And that's I 15 think what Metromedia says. I mean, I think 16 that's specifically what it says. 17 COMMISSIONER EPPS: I don't have 18 anything right now. 19 CHAIR KASSEKERT: Any other questions? 20 COMMISSIONER SOMMELING: I have a 21 question. 22 CHAIR KASSEKERT: Sure. Commissioner 23 Sommeling? 24 COMMISSIONER SOMMELING: Mr. O'Gara, 25 would you agree that over the course of the 102 ITEM NO. 2 1 casino's history here in New Jersey that back 2 in 1978 when gaming started, casino hotels were 3 just like towers with motel rooms and casino 4 floor and maybe some retail and minimal 5 entertainment, something along those lines, but 6 then as the casino growth evolved, each complex 7 became larger. And at some point they became 8 more extravagant in the types of amenities that 9 they offer, types of facilities that had these 10 amenities, and that they were kind of looked at 11 as whole casino hotels in terms of what they 12 offered in terms of gaming, hotel, 13 entertainment, other amenities, retail, all 14 those things collectively until they eventually 15 evolved into what we see now as the casino mega 16 resorts. So in the universe of casinos in the 17 state of New Jersey, and in the licensing 18 process, there's an expectation that to be 19 competitive and to stay in the field of casino 20 hotel operation that the casinos are going to 21 operate under a certain type of criteria that 22 makes them competitive and not necessarily 23 under the terms of economic concentration but a 24 competitiveness, per se, wherein they not only 25 offer all these amenities, but they guarantee 103 ITEM NO. 2 1 their hotels are in place to service the public 2 that will come to these facilities? And by 3 that I think they mean that they'll have all of 4 what is necessary to give the patrons what 5 they're entitled to when they cross that 6 threshold. 7 MR. O'GARA: I -- to the degree they've 8 changed, I think that some have. 9 COMMISSIONER SOMMELING: I think most of 10 them have. 11 MR. O'GARA: Well, it's interesting 12 because I have the numbers I've derived here 13 from you. There's at least three buildings in 14 the city that haven't. For five years in total 15 Capital X is $90 million, most of which is 16 maintenance. Certainly some have. One of 17 them, interestingly, is Tropicana. 18 COMMISSIONER SOMMELING: Exactly. 19 Exactly. 20 MR. O'GARA: Who built the towers. They 21 built the towers and built the Quarter. So if 22 that were the standard, becoming a mega resort, 23 then certain places would not because they've 24 chosen not to do that. They've chosen not to 25 add additional outside hotel building amenities 104 ITEM NO. 2 1 or outside restaurants or other attractions. 2 They've stayed with what they have. Sometimes 3 because of their site constraints. Sometimes 4 because of, you know, financial considerations 5 and balancing. But I think there's various 6 different places. To a degree some of the 7 buildings remain unchanged from when they were 8 constructed in terms of physical change inside 9 the building or size. 10 So I think to some degree there's an 11 expectation that people have that they'll be 12 certain amenities there, and I think certain 13 people make choices about where they go based 14 upon additional amenities if they like them. I 15 mean, I would guess that someone who likes, you 16 know, Bobby Flay is going to go to the Borgata, 17 whereas some places don't have any outside 18 outlets. If you know what I mean, 19 Commissioner. But I think that there's 20 certainly -- people have an expectation that 21 there are certain things that are going to be 22 there, but I think, again, it's individual as 23 to them. But I don't think there's anything 24 that's come to be incorporated or a standard 25 that you've used that certain things have to 105 ITEM NO. 2 1 have been added in order for a license to be 2 renewed. 3 COMMISSIONER SOMMELING: Well, the 4 Tropicana is in a position where it has already 5 increased in size not once but three or four 6 times over the years and now is in a position 7 where it is a very large facility. It's been 8 operating as a large facility for some time 9 now. And now the threshold to renew the 10 license comes along, and we're questioning 11 whether or not this facility is able to meet 12 the criteria for licensing based on what the 13 Commission has done all through the years and 14 what the licensee himself has accepted in the 15 way of criteria to be licensed and to continue 16 operation as a larger resort now than what it 17 was in 1978. 18 MR. O'GARA: I have no question. What 19 my suggestion was is that there are specific 20 criteria, A, test for first-class hotel, and, 21 B, numbers of employees that -- that is what 22 has to be the subject of a rule. But no one 23 has ever propounded anything suggesting what 24 the number of required employees in other 25 departments has been. That's what I suggest. 106 ITEM NO. 2 1 COMMISSIONER SOMMELING: Thank you. 2 CHAIR KASSEKERT: Thank you. 3 COMMISSIONER EPPS: Question, Mr. 4 O'Gara. 5 If we do what were you ask, and that is 6 strike all reference in the Division's report 7 to the areas that you would rather not have -- 8 you argue that we should not consider -- 9 MR. O'GARA: Yes. Yeah. I -- I'd 10 rather not have it. My argument is that I 11 wouldn't be persuaded on what I like, 12 Commissioner Epps. I'm suggesting to you that 13 it's really a thing -- 14 COMMISSIONER EPPS: Well, you're saying 15 we should not consider these with our ruling. 16 We strike all -- 17 MR. O'GARA: Correct. 18 COMMISSIONER EPPS: You strike all 19 reference to them in their report. 20 MR. O'GARA: Right. 21 COMMISSIONER EPPS: What we then end up 22 with a document that does not say those things. 23 However, if, as you've indicated -- 24 MR. O'GARA: Well, they're free -- 25 COMMISSIONER EPPS: They testify. They 107 ITEM NO. 2 1 ask questions, and that testimony is elicited 2 during the process, and we determine that it is 3 probative, and it is admissibility, and we 4 entertain them, and we hear this. They then 5 become factors with which we include in all of 6 the records that we've heard in making our 7 determination as to whether or not this company 8 should be a licensee. Is that fair? Is that a 9 fair -- 10 MR. O'GARA: Given the fact -- yeah. 11 Using the standard -- you know, I hope you 12 don't mind I try to hold you to the fairness of 13 what you and I talked about, which was, you 14 said business ability. And if, in fact, the 15 Division elicited that information, and you 16 utilized against a standard of whether or not 17 it's determinative of their or an individual's 18 business abilities and whether it's probative 19 of that, yes. Not with respect to whether or 20 not they've met the standard of requisite 21 number of nongaming employees or a requisite 22 first-class hotel. 23 And I suggest to you that, if propounded 24 the different way and written to suggest it was 25 probative value, it might be, you know, 108 ITEM NO. 2 1 something you would consider even in the form 2 of a report. But absent that and absent the 3 standard the way it is, it doesn't stand. 4 That's what I've said to you. 5 It may sound like a point, but that's 6 the whole unfortunate thing about legal 7 structure. It's a whole bunch of points and 8 rules. And doing things different ways, in 9 fact, sometimes is what makes the difference. 10 If you eliminate the standard, you've conceded 11 the argument I make. Yeah. I didn't say it's 12 not-- if you determine it's relevant to 13 something else, it's relevant to that. But I'm 14 just saying it can't be relevant to this 15 because you don't have standards for this. 16 COMMISSIONER EPPS: Okay. And I guess 17 what I'm -- I'm just making sure that what you 18 say is what I understand, that if the report -- 19 if you get your way, the report is stricken as 20 to those references. 21 MR. O'GARA: Uh-hum. 22 COMMISSIONER EPPS: We get a report that 23 is bare of those things, and that report is 24 what is submitted, and it does whatever it 25 does. But then during the process of the 109 ITEM NO. 2 1 hearing, those same areas are addressed and 2 we-- and assuming -- not prejudging the matter, 3 but assuming that we determine they are -- I'm 4 sure there may be an objection to whatever we 5 determine -- 6 MR. O'GARA: Yeah. Right. 7 COMMISSIONER EPPS: -- that over the 8 objection they are probative, and they come in, 9 we kind of end up in the same place except it 10 is not in a document. 11 MR. O'GARA: No. A different place, 12 because it's also not directed toward -- number 13 one, not in the document has some significance 14 when you consider this report. 15 Number two, it's directed toward an 16 issue you've determined. You've said, look, 17 we're not in the business of deciding, you 18 know, 11 first-class hotel standards or we're 19 not in the business of establish determining 20 how many employees work in valet. But in the 21 issue of whether you have the business ability 22 to run this, we're going to consider your 23 background, your this, your that. And we're 24 also going to ask you, you employed so many 25 people. You lay some off. Do you think that 110 ITEM NO. 2 1 reasonably is way you could run a place? Yeah, 2 that's fine. But that's a big difference from 3 what setting a standard and then applying this 4 report to it is. 5 And there may be some of it correctly to 6 which that is objection. And I would cite you, 7 for example, if someone said you had six patron 8 complaints, I would suggest to you that that 9 might not be particularly relevant to business 10 abilities. All right? But that's exactly what 11 I am saying. 12 COMMISSIONER EPPS: Okay. I'm done. I 13 promise. 14 CHAIR KASSEKERT: Any other questions? 15 Ms. Maher? Anything you'd like to add 16 at this point? 17 MS. MAHER: No. Thank you, Chair. 18 CHAIR KASSEKERT: Okay. We'll take a 19 recess. We'll recess until 3:00. 20 21 (A recess was taken from 1:26 to 4:11 22 p.m.) 23 24 CHAIR KASSEKERT: We'll go back on the 25 record. 111 ITEM NO. 2 1 Let me ask at this point if counsel has 2 anything it wishes to add before I start my 3 remarks? 4 Mr. O'Gara? 5 MR. MR. O'GARA: No, ma'am. 6 CHAIR KASSEKERT: Okay. 7 MS. MAHER: No, thank you, Chair. 8 CHAIR KASSEKERT: Very good. 9 In reliance upon Metromedia and its 10 progeny, Tropicana argues that in its upcoming 11 renewal hearing, the Commission in the absence 12 of regulations articulating the detailed 13 standards should not consider two areas of 14 concern the Division raises in its report to 15 the Commission on the license renewal. Those 16 areas have been variously characterized and 17 referred to by the parties as the staffing of 18 nonmandatory departments and the first-class 19 facility issue, a characterization for ease of 20 discussion I will adopt. Assuming we agree, 21 Tropicana then argues that those portions of 22 the Division's report should be stricken. 23 In order to succeed on the motion to 24 strike Tropicana, as a threshold matter, would 25 first need to convince the Commission that the 112 ITEM NO. 2 1 matters the Division raises in its report are 2 relevant only to first-class facility and 3 nonmandatory staffing, which it insists are 4 areas of impermissible inquiry in the absence 5 of regulations. On the other hand, if the 6 Division's presentation touches upon, for 7 example, any of the Section 84 licensing 8 criteria, then the motion to strike must fail. 9 Tellingly, during our colloquy, 10 Tropicana acknowledged that those matters bear 11 on business ability in Section 84d of the Act. 12 The Division's license report also casts the 13 failure to apprise regulators of layoffs as a 14 business ability matter. Depending on the 15 proofs, those matters may also implicate other 16 Section 84 criteria with the legislature in 17 each instance again articulating the respective 18 standards for the Commission to apply. 19 Ultimately, which licensing criteria are 20 impacted are certainly for the Commission to 21 decide at the conclusion of the case. Thus, I 22 am convinced that the motion to strike must 23 fail because the materials that Tropicana finds 24 objectionable in the Division's report bear 25 upon at least business ability in the 113 ITEM NO. 2 1 affirmative criteria in Section 84. 2 For me, then, there is no need for the 3 Commission to reach Tropicana's Metromedia 4 argument. If the Commission agrees with me and 5 supports my motion, it would not be the 6 Commission's intent to articulate in the 7 context of the renewal hearing standards on 8 nonmandatory staffing or first-class 9 facilities. 10 Certainly with the disputed matters now 11 framed in this fashion, the need for another 12 prehearing conference is obviously apparent, 13 and subject to the availability of the parties, 14 I suggest we have such a meeting for that 15 purpose on Monday. 16 For the above reasons just noted, I move 17 that we deny the motion to strike, and I so 18 move. 19 Is there a second? 20 COMMISSIONER SOMMELING: Second. 21 CHAIR KASSEKERT: Motion has been made 22 and seconded. All in favor? 23 (Ayes.) 24 CHAIR KASSEKERT: Opposed? 25 (No response.) 114 ITEM NO. 3 1 CHAIR KASSEKERT: Motion carries. 2 Thank you. 3 We'll now move to Item 3. 4 Let me ask Mr. Michael, first -- 5 MR. MICHAEL: Yeah. 6 CHAIR KASSEKERT: Ready to proceed or -- 7 MR. MICHAEL: Am I ready to proceed? 8 MR. INGIS: I believe -- I believe we're 9 ready. 10 CHAIR KASSEKERT: Okay. Sorry. 11 MR. INGIS: Madame Chair -- 12 CHAIR KASSEKERT: Okay. 13 Let me ask Mr. Michael, first. If you 14 plan on arguing this case? Want to make oral 15 argument? 16 MR. MICHAEL: On the motion for demands? 17 CHAIR KASSEKERT: Yeah. 18 MR. MICHAEL: It's late in the day. We 19 have made our arguments on the papers. I 20 have -- I might have two or three minutes' 21 worth of supplementation of that, if I may be 22 permitted to do that. Only because, as we've 23 gathered some of this discovery and gone over 24 it, there are some matters that arose after we 25 submitted our papers. But other than that, 115 ITEM NO. 3 1 that will be it. 2 CHAIR KASSEKERT: All right. And Ms. 3 Way? 4 MS. WAY: Madame Chair, we'd be content 5 to rely on the papers unless you or any of the 6 Commissioners have any questions. 7 CHAIR KASSEKERT: Okay. Let me also ask 8 if you also have a preference. As I indicated 9 in my opening remarks, I had delegated this 10 matter to me to hear. I have a full Commission 11 here. But -- and if you prefer to have that 12 and would want to state your reasons on the 13 record to have the full Commission hear it. 14 MR. MICHAEL: No. Whatever is your 15 preference. Your ruling will be satisfactory. 16 MS. WAY: The same. 17 CHAIR KASSEKERT: Very good. All right. 18 Let's proceed, then. 19 MR. INGIS: Thank you. 20 You can leave. You're not needed. 21 MR. MICHAEL: Is it something I said? 22 VICE CHAIR FEDORKO: I've been thrown 23 out of better places. 24 (Commissioners Frulio, Fedorko, Epps, 25 and Sommeling exited.) 116 ITEM NO. 3 1 MR. MICHAEL: Madame Chair, as I said, 2 very briefly, we have submitted papers seeking 3 certain discovery demands of the Division in 4 light of materials that were contained in their 5 report, and per your most recent ruling 6 continue to be part of the matter to be heard 7 next week. And we rely on those papers in 8 terms of the need for that documentation and 9 with respect to the relative compliance record 10 and facility record of Tropicana as it relates 11 to the industry as a whole. 12 What I'd like to supplement those 13 documents with are some specific points, and 14 that relates to the indications in the 15 Division's report as they address the 16 complaints that were filed against the 17 Tropicana and the warning letters that were 18 filed against Tropicana. We have asked for 19 materials for about complaints filed both 20 against Tropicana and the industry as a whole 21 and the warning letters against Tropicana and 22 the industry as a whole during the time periods 23 that the Division has cited. As we argued in 24 the papers, we did that because we need to 25 compare the records of the other casinos with 117 ITEM NO. 3 1 our records as the Division has apparently both 2 explicit and implicitly done in their -- in 3 their report. 4 We also have to compare what we have 5 with what the Division is relying on. We don't 6 know specifically what the Division is relying 7 on, and my supplementation here goes to that 8 point. In reviewing the documents in our 9 possession, for example, with regard to 10 complaints, the Division sites $90,000 in 11 fines, for example, that Tropicana had been -- 12 had been levied against Tropicana. Our review 13 of the records indicates that those complaints, 14 the $90,000 fines, were levied for conduct that 15 took place before the change in ownership. 16 If we're talking about the same 17 complaints they're talking about, that 18 certainly is relevant to the determination as 19 to whether or not that material should be 20 considered in terms of their suitability of the 21 new owners. We don't know if that's the case. 22 We need to see what they're relying on to find 23 that out. 24 With respect to the warning letters, the 25 Division cites to 17 -- or should be 21 warning 118 ITEM NO. 3 1 letters and says that Tropicana has 2 disproportionately accounts for a quarter of 3 all the warning letters, it says, of the 4 industry. Well, again, we've taken a look at 5 the warning letters in our possession. We have 6 17. Of those 17, 11 were for conduct that 7 occurred before the new ownership took over. 8 We don't know if we're looking at the same 9 warning letters they're looking at. We need to 10 be certain whether we are so we're comparing 11 apples to apples. And then to make an 12 evaluation with respect to those, whether 13 that's disproportionate or not, what they mean 14 by "disproportionate," what the other warning 15 letters were about. It's not just numbers 16 we're talking about, it's also type. What were 17 the other complaints at the other casinos were 18 for? What were the warning letters for? If 19 ours were for some minimal infraction and 20 theirs were for some substantial infraction, we 21 need to be able to compare that. We need to be 22 able to address the arguments that the Division 23 both explicitly and implicitly makes that in 24 some way you should be considering our 25 operation as less efficient and in terms of the 119 ITEM NO. 3 1 business ability standards that you're now 2 applying less able to meet that standard than 3 say the industry as a whole. 4 It's relevant. It's material, and it's 5 something we need to be able to evaluate, and 6 we ask that we be provided the documents. 7 CHAIR KASSEKERT: Miss Way? 8 MS. WAY: If I may answer, Madame Chair. 9 First of all, with regard to what 10 Tropicana has and what Tropicana doesn't have, 11 if they need help in discerning that, we will 12 put a package together and give that help. 13 In terms of what the Division's report 14 explicitly and implicitly says, let me be 15 clear. We report that they received 21 warning 16 letters. That's it. They say they only have 17 17. We'll give them the 21. We never, in 18 terms of the warning letters or the 19 complaints-- and I'll address that section in a 20 moment -- compared how they did with regard to 21 how anybody else in the industry did. We give 22 a percentage just by virtue, as I say in our 23 papers, as a number. If they want to question 24 the mathematical calculation, that's one thing. 25 Substantively, there was no comparison. 120 ITEM NO. 3 1 With regard to the complaints, we 2 discuss substantively in our -- in our renewal 3 report four and a half complaints. Those are 4 against the new management. We cite the fact 5 that there were, I believe, 11 all together 6 filed. You can do the math. 7 Beyond that, just to make the point in 8 terms of wanting a warning letter, warning 9 letter sent to other casino licensees and the 10 complaints of other casino licensees or the 11 settlement agreements and penalty assessments 12 of other licensees. The touchstone is 13 relevance. So the question then becomes if -- 14 how does -- what is the logical connection, 15 more to the point, to apply the law between 16 whether Tropicana Atlantic City is qualified 17 for licensure and whether Resorts got a warning 18 letter on a fruit fly violation or Trump Marina 19 got a complaint filed against it because it 20 didn't verify a cash equivalent before 21 accepting it? What does that have to do with 22 whether or not Tropicana Atlantic City is 23 qualified for licensure? That's not the 24 touchstone of it all. That's the test of 25 relevance. If you fail that test, and we 121 ITEM NO. 3 1 submit that they do, they're not entitled to 2 the documents. They are not discoverable, and 3 that is not our obligation. 4 CHAIR KASSEKERT: Thank you. 5 Mr. Michael? Anything else? 6 MR. MICHAEL: Yes. Just very briefly on 7 both points that Ms. Way makes. 8 She, on the one hand, says we don't 9 compare Tropicana to anybody else, and then 10 immediately thereafter we assign a percentage. 11 That's a comparison. That's what percentages 12 are. 13 Secondly, with respect to relevance, we 14 are evaluating here whether Tropicana can -- 15 possesses the sufficient business ability and 16 experience. It certainly seems relevant to me 17 to meet that standard whether or not its 18 conduct during the course of its license term 19 compares favorably, unfavorably, similarly to 20 the conduct industrywide. If it -- if 21 industrywide conduct is identical or in some 22 ways very similar to what the Tropicana has 23 behaved, that would permit it to argue. You 24 may not adopt that argument. But we'd 25 certainly be permitted to argue that that 122 ITEM NO. 3 1 should be considered in terms of evaluating our 2 business ability. 3 CHAIR KASSEKERT: But we've never made 4 that comparison before. I mean, what we -- 5 MR. MICHAEL: Maybe other people haven't 6 chosen to make that argument. But I don't know 7 that that necessarily means that it's 8 irrelevant. If, you know -- if, say, the 9 disproportion was the other was way around, in 10 the Division's view, that one casino had no 11 complaints filed against it while all the other 12 casinos had hundreds filed it against it, there 13 certainly would be an argument that their 14 business ability would be better than the 15 business abilities of other casinos. And they 16 could make that argument that they could be 17 licensed for that reason. This is the flip 18 side of the coin. So for both those reasons we 19 ask for the documents. 20 CHAIR KASSEKERT: Anything else, Ms. 21 Way? 22 MS. WAY: No, ma'am. 23 CHAIR KASSEKERT: Okay. 24 MR. INGIS: Madame Chair, if we could 25 just take a three-minute recess. 123 ITEM NO. 3 1 CHAIR KASSEKERT: Sure. 2 3 (A recess was taken from 4:25 to 4:29 4 p.m.) 5 6 CHAIR KASSEKERT: Go back on the record. 7 Let me just ask one more time if there's 8 anything to add before I rule? 9 MR. MICHAEL: Nothing. 10 MS. WAY: Nothing, Madame Chair. 11 CHAIR KASSEKERT: Thank you. Okay. 12 On November 13th, 2007, Tropicana filed 13 a motion to compel discovery seeking an order 14 directing the Division of Gaming Enforcement to 15 release certain documents in connection with 16 the forthcoming casino license renewal hearing 17 scheduled to begin on November 20th, 2007. The 18 documents requested fall into two categories, 19 those records pertaining directly to Tropicana 20 and those records relating to other Atlantic 21 City casinos. 22 On November 14th, 2007, the Division 23 submitted its response to the motion arguing 24 that the motion should be denied in its 25 entirety. 124 ITEM NO. 3 1 The Uniform Administrative Procedure 2 Rules at NJAC 1:1-10.1 establish the rules and 3 policies governing discovery in administrative 4 proceedings. The basic idea of discovery is 5 that a party should be entitled to disclosure 6 to all relevant information in the possession 7 of any person, including other parties, except 8 what is privileged. Discovery rules are to be 9 liberally construed to facilitate the exchange 10 of information which is related to the issue in 11 dispute. In deciding whether evidence is 12 relevant, an agency must focus on the logical 13 connection between the proffered evidence and a 14 fact in issue. 15 The discovery motion relates to the 16 issue raised in the Division's report 17 concerning Tropicana's ability to maintain a 18 first-class facility pursuant to Section 83i of 19 the Casino Control Act. In addition, issues 20 relating to business ability under Section 84d 21 have been implicated by matters raised in the 22 Division's report. At page 17 of its report 23 the Division states that all 21 warning letters 24 issued to Tropicana disproportionately accounts 25 for almost all one-quarter of all warning 125 ITEM NO. 3 1 letters sent by the Division industrywide 2 during the period from January 9th to October 3 16th, 2007. Tropicana argues that given the 4 recitation of facts and statistical data, the 5 warning letters and complaints relating to 6 other facilities are relevant to the issue of 7 whether Applicant possess the requisite 8 business ability. Tropicana also asserts that 9 it is the nature and type of the warning 10 letters issued that is relevant to this 11 proceeding and not the mere quantity. The 12 Division contends that the regulatory 13 compliance record of other casinos is not at 14 issue and that any comparisons with other 15 casinos are irrelevant and unnecessary in this 16 hearing. 17 I agree with the Division's assessment. 18 Tropicana's ability to demonstrate compliance 19 with the Act's licensing requirements will rise 20 or fall and its own merit. Thus, the warning 21 letters issued to other casinos are irrelevant 22 and, therefore, are not discoverable. The same 23 reasoning applies with respect to any materials 24 relating to staff reductions by other casinos 25 and to complaints brought against Applicant's 126 ITEM NO. 3 1 competitors with any resulting settlement 2 agreements. 3 There are three types of documents 4 pertaining to warning letters and complaints 5 directed at Tropicana as well as settlements 6 involving Tropicana to which the Division 7 objects on the grounds that the records 8 requested are in the possession of Tropicana. 9 However, this is not a valid basis for 10 objecting to discovery. Regardless of whether 11 Tropicana is in possession of said material, 12 Applicant is still entitled to request the 13 information from the Division as a means of 14 familiarizing itself with what the Division's 15 case may entail. 16 Accordingly, the Division is hereby 17 directed to provide warning letters issued to 18 the Tropicana during the period of January 19 through October of 2007. However, as to the 20 complaints and settlement agreements, these 21 materials are not subject to discovery insofar 22 as they are public agency records and may be 23 obtained through a standard Open Public Records 24 Act request through our Public Information 25 Office. 127 ITEM NO. 3 1 For the foregoing reasons, Tropicana's 2 motion to compel discovery is granted as to the 3 warning letters issued to it but denied for the 4 remaining requested material. 5 Thank you very much. 6 Do I entertain a motion to adjourn by 7 myself? 8 MR. MICHAEL: I second. 9 CHAIR KASSEKERT: Thank you. 10 We are adjourned. Thank you. 11 MS. WAY: Thank you. 12 (The Special Public Meeting was 13 adjourned at 4:33 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 128 1 2 C E R T I F I C A T E 3 4 5 I, DARLENE SILLITOE, a Certified Court 6 Reporter and Notary Public of the State of New 7 Jersey, certify that the foregoing is a true 8 and accurate transcript of the proceedings. 9 10 11 I further certify that I am neither 12 attorney, of counsel for, nor related to or 13 employed by any of the parties to the action; 14 further that I am not a relative or employee of 15 any attorney or counsel employed in this case; 16 nor am I financially interested in the action. 17 18 19 DARLENE SILLITOE, CCR 20 License No XI01023 21 22 Dated: November 18, 2007 23 My Commission Expires on July 10, 2009 24 ID No 2062871 25