1 1 STATE OF NEW JERSEY 2 CASINO CONTROL COMMISSION 3 - - - - - - - - - - - - - - - - - - - 4 5 PUBLIC MEETING NO. 09-09-22 6 7 - - - - - - - - - - - - - - - - - - - 8 9 Tuesday, September 22, 2009 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 10:36 a.m. to 2:53 p.m. 15 16 17 Certified Court Reporter: Darlene Sillitoe 18 - - - - - - - - - - - - - - - - - - - - - - - - - - - 19 20 ATLANTIC CITY COURT REPORTING, LLC 21 CERTIFIED COURT 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 2 CASINO CONTROL COMMISSION: LINDA M. KASSEKERT, CHAIR 3 MICHAEL C. EPPS, VICE CHAIR WILLIAM T. SOMMELING, COMMISSIONER 4 SHARON ANNE HARRINGTON, 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 DENIS J. CORBETT, SENIOR COUNSEL TERESA M. NAGENGAST, SENIOR COUNSEL 10 SETH H. BRILLIANT, SENIOR COUNSEL LON E. MAMOLEN, SENIOR COUNSEL 11 ROBERT A. MONCRIEF, COUNSEL TRACY E. RICHARDSON, COUNSEL 12 BERNADETTE T. FRIGEN, PROGRAM SUPERVISOR 13 DIVISION OF GAMING ENFORCEMENT: DEPUTY ATTORNEYS GENERAL 14 JAMES J. ARMSTRONG, DEPUTY ATTORNEY GENERAL JAMES C. FOGARTY, DEPUTY ATTORNEY GENERAL 15 R. LANE STEBBINS, DEPUTY ATTORNEY GENERAL 16 17 18 19 20 21 22 23 24 25 3 1 A P P E A R A N C E S : 2 ITEM NO. 5 TERESA M. NAGENGAST, SENIOR COUNSEL R. LANE STEBBINS, DEPUTY ATTORNEY GENERAL 3 KAREN M. WOSNACK, ESQ. FOR: RIH ACQUISITIONS NJ, LLC 4 ITEM NO. 12 TRACY E. RICHARDSON, COUNSEL 5 JAMES C. FOGARTY, DEPUTY ATTORNEY GENERAL FOX ROTHSCHILD, LLP 6 NICHOLAS CASIELLO, JR., ESQ. FOR: MGM MIRAGE AND MAC CORP. 7 ITEM NO. 13 TRACY E. RICHARDSON, COUNSEL 8 GEORGE N. ROVER, ASSISTANT ATTORNEY GENERAL 9 ANTHONY ZARRILLO, JR., ASSISTANT ATTORNEY GENERAL 10 STERNS & WEINROTH, PC PAUL M. O'GARA, ESQ. 11 FOR: MARINA DISTRICT DEVELOPMENT COMPANY, LLC 12 FOX ROTHSCHILD, LLP NICHOLAS CASIELLO, JR. ESQ. 13 FOR: MGM MIRAGE, BOYD GAMING CORPORATION 14 15 16 17 18 19 20 21 22 23 24 25 4 1 AGENDA PUBLIC MEETING NO. 09-09-22 2 September 22, 2009, 10:36 a.m. ITEM PAGE VOTE 3 1 Ratification of the minutes of the 8 8 September 9, 2009, public meeting 4 2 Applications for employee and casino service industry licenses 5 8 initial and/or renewal of casino key 8 9 and casino employee licenses 6 9 initial and/or renewal of casino key 9 9 and casino employee licenses 7 Application of William F. Carey for a 10 10 casino key employee license and for 8 qualification as Executive Director of Surveillance for Adamar of New Jersey, Inc. 9 3 Stipulations of settlement and consent agreements: 10 a) Vincent J. Iorio, Jr. (09-0461-EA) 10 12 b) Karolin Conner (08-0991-RC) 10 12 11 c) Oscar D. Portes (05-0396-RC) 10 12 d) Dennis A. Catania (09-0347-EA) 10 12 12 (a/k/a Denis Catania) e) Jessica D. Giuliante (09-0360-ER) 10 12 13 f) Pamela S. Holsey (09-0371-ER) 10 12 g) Michael P. Collins (08-0556-ER) 10 12 14 h) Allen H. Perry (08-0557-ER) 10 12 i) Michael J. Ragonese (09-0353-ER) 10 12 15 j) Michael R. Reeves (08-0913-ER) 10 12 k) April Van Sant (08-0868-ER) 10 12 16 l) John C. Withers, IV (08-0755-ER) 10 12 m) Daimyen Mortimore (09-0567-ER) 10 12 17 4 Stipulation of settlement in State v. 13 15 John M. Williams (09-0210-VC) 18 5 Stipulation of settlement in State v. 15 17 RIH Acquisitions NJ, LLC (d/b/a Atlantic 19 City Hilton Casino Resort) (09-0090-VC) 6 Initial decision in State v. Harry D. 17 30 20 Tennant (08-0457-RC) sworn 21 7 Petitions for early reapplications: 21 a) Steven J. Maurer (08-0954-RA) 31 33 b) Woodrow W. Carpenter, Jr. (09-0429-RA) 33 35 22 sworn 33 8 Applications for suspension in State v. 35 36 23 Carmine R. DiNardo 9 Petition of Trump Taj Mahal Associates 36 37 24 (d/b/a Trump Taj Mahal Casino Resort) for permission to transfer a progressive 25 slot jackpot pursuant to NJAC 19:45-1.39(n) (PRN 2470901) 5 1 CONTINUED AGENDA PUBLIC MEETING NO. 09-09-22 2 September 22, 2009, 10:36 a.m. ITEM PAGE VOTE 3 10 Proposed publication and temporary 38 39 Adoption of Amendments to NJAC 19:47-2.10 4 (Double Down Card Dealt Face Down at Designated Tables or Upon Play Request) 5 11 Joint petition of Shuffle Master, Inc., 39 41 and Trump Marina Associates, LP (d/b/a 6 Trump Marina Hotel and Casino) for approval of the game of Three Card Poker Progressive, 7 a variation of Three Card Poker pursuant to NJAC 19:47-8.4, NJAC 19:40-3.7 and NJSA 52:14B-4 8 12 Petition of MGM MIRAGE and MAC, CORP. for 41 45 Temporary qualification of Joseph Sugerman 9 as a Director of MGM MIRAGE (PRN 2430904) 13 Joint Petition of MGM MIRAGE, Boyd Gaming 45 103 10 Corporation and Marina District Development Company, LLC, for declaratory rulings as to 11 Certain procedural issues related to Marina District Development Company, LLC's, reopened 12 2005 Casino License Hearing (PRN 2300906) 13 14 15 16 17 18 19 20 21 22 23 24 25 6 1 E X H I B I T S : 2 NO. DESCRIPTION EVD 3 4 P-1 Remand for hearings 8 license X 5 P-2 Grant 9 licenses X 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (Exhibits retained by Commission.) 23 24 25 7 1 (Public Meeting 09-09-22 was commenced 2 at 10:36 a.m.) 3 MR. NANCE: Good morning. I'd like to 4 read an opening statement: 5 This is to advise the general public 6 that in compliance with Chapter 231 of the 7 public laws of 1975 entitled the "Open Public 8 Meetings Act," the New Jersey Casino Control 9 Commission on October 7, 2008, filed with the 10 Secretary of State at the State House in 11 Trenton, New Jersey, a notice of this hearing. 12 On October 7, copies were mailed to 13 subscribers. 14 Members of the press will be permitted 15 to take photographs, and we ask that this be 16 done in a manner which is not disruptive or 17 distracting to the Commission. 18 The use of cell phones in the public 19 meeting room while the Commission is in session 20 is prohibited. 21 Any member of the public who wish to 22 address the Commission will be given the 23 opportunity to do so before the Commission 24 adjourns for the day. 25 Would everyone please stand for the 8 ITEM NO. 1-2 1 Pledge of Allegiance. 2 (The flag salute was recited.) 3 CHAIR KASSEKERT: Good morning. 4 MR. NANCE: Good morning. 5 The matters discussed in closed session 6 were: Employee and enterprise licensing 7 matters. 8 And -- excuse me. The Commission 9 approved the September 9th, 2009, 10 closed-session minutes. 11 Item No. 1, ratification of the minutes 12 of September 9, 2009, public meeting. 13 COMMISSIONER SOMMELING: Move to 14 approve. 15 VICE CHAIR EPPS: Second. 16 CHAIR KASSEKERT: The motion has been 17 made and seconded. All in favor? 18 (Ayes.) 19 CHAIR KASSEKERT: Opposed? 20 (No response.) 21 CHAIR KASSEKERT: Motion carries. 22 MR. NANCE: Item No. 2, application for 23 employee and casino service industry licenses. 24 This agenda item will be entered as Exhibit 25 List 1 and 2. 9 ITEM NO. 2 1 Exhibit List 1 consists of eight 2 applications for initial and/or casino key and 3 casino employee licenses. 4 The Division has objected to licensure. 5 VICE CHAIR EPPS: Motion to remand for 6 hearings. 7 COMMISSIONER SOMMELING: Second. 8 CHAIR KASSEKERT: The motion has been 9 made and seconded. All in favor? 10 (Ayes.) 11 CHAIR KASSEKERT: Opposed? 12 (No response.) 13 CHAIR KASSEKERT: Motion carries. 14 MR. NANCE: Exhibit List 2 consists of 15 nine applications for initial and/or renewal of 16 casino key and casino employee licenses. 17 Staff and the Division have recommended 18 that these licenses be granted. 19 VICE CHAIR EPPS: I move that we grant 20 the applications. 21 COMMISSIONER SOMMELING: Second. 22 CHAIR KASSEKERT: The motion has been 23 made and seconded. All in favor? 24 (Ayes.) 25 CHAIR KASSEKERT: Opposed? 10 ITEM NO. 3 1 (No response.) 2 CHAIR KASSEKERT: The motion carries. 3 MR. NANCE: For consideration is the 4 application of William F. Carey for a casino 5 key employee license and for qualification as 6 Executive Director of Surveillance for Adamar 7 of New Jersey, Inc. 8 Staff and the Division have recommended 9 that this application be granted. 10 COMMISSIONER SOMMELING: Move to approve 11 the application. 12 COMMISSIONER HARRINGTON: Second. 13 CHAIR KASSEKERT: Motion is made and 14 seconded. This is a roll call vote. 15 MR. NANCE: Commissioner Harrington? 16 COMMISSIONER HARRINGTON: Yes. 17 MR. NANCE: Commissioner Sommeling? 18 COMMISSIONER SOMMELING: Yes. 19 MR. NANCE: Vice Chair Epps? 20 VICE CHAIR EPPS: Yes. 21 MR. NANCE: Chair Kassekert? 22 CHAIR KASSEKERT: Yes. 23 MR. NANCE: The record will reflect that 24 the motion is unanimous. 25 Item No. 3, stipulation of settlement 11 ITEM NO. 3 1 and consent agreements. When I call your name, 2 please come forward, standing behind this 3 middle table, spreading across the room so that 4 you may be seen: Vincent Iorio, Jr., Karolin 5 Conner, Oscar Portes, Dennis Catania, Jessica 6 Giuliante, Pamela Holsey, Michael Collins, 7 Allen Perry, Michael Ragonese, Michael Reeves, 8 April Van Sant, John Withers, IV, and Daimyen 9 Mortimore. 10 CHAIR KASSEKERT: Has everyone whose 11 name been called come forward at this point? 12 MS. FRIGEN: Have you called Daimyen? 13 MR. NANCE: Yes. 14 MS. FAUNTLEROY: Yes. He called. 15 CHAIR KASSEKERT: Can you spread -- 16 yeah. Thank you. 17 I'm going to ask that each of you state 18 your name for the record, beginning with you, 19 sir. 20 MR. IORIO: Vincent J. Iorio, Jr. 21 MR. REEVES: Michael Reeves. 22 MS. VAN SANT: April Van Sant. 23 MR. COLLINS: Michael Collins. 24 MR. MORTIMORE: Diamyen Mortimore. 25 CHAIR KASSEKERT: Thank you. 12 ITEM NO. 3 1 In a moment we're going to vote on the 2 stipulations you've agreed to with the Division 3 of Gaming Enforcement. I'm going to ask if any 4 of you wish to be heard on your matter. You do 5 not have to say anything if you don't want to. 6 Does anyone wish to be heard? 7 (No response.) 8 CHAIR KASSEKERT: Okay. Mr. Armstrong? 9 MR. ARMSTRONG: Chair, the Division 10 would just ask that all these stimulations of 11 settlement be approved by the Commission. 12 CHAIR KASSEKERT: Sir, could you just 13 state your name? I'm sorry. 14 MR. REEVES: John Reeves. 15 CHAIR KASSEKERT: And is there anything 16 you'd like to say? 17 MR. REEVES: No, ma'am. 18 CHAIR KASSEKERT: Okay. Thank you. 19 Any questions for the Division? 20 COMMISSIONER SOMMELING: No questions, 21 Madame Chair. 22 I move to approve the stipulations. 23 VICE CHAIR EPPS: Second. 24 CHAIR KASSEKERT: The motion has been 25 made and seconded. All in favor? 13 ITEM NO. 4 1 (Ayes.) 2 CHAIR KASSEKERT: Opposed? 3 (No response.) 4 CHAIR KASSEKERT: Motion carries. 5 Thank you for coming. Good luck. 6 MS. VAN SANT: Thank you. 7 MR. IORIO: Thank you. 8 MR. NANCE: Item No. 4, stipulation of 9 settlement in State versus John M. Williams. 10 Miss Nagengast? 11 CHAIR KASSEKERT: You can have a seat 12 right there. 13 MS. NAGENGAST: Good morning, Chair, 14 Commissioners. 15 CHAIR KASSEKERT: Good morning. 16 MS. NAGENGAST: For your consideration 17 is the stipulation of settlement in State 18 versus John M. Williams. 19 According to the terms of the 20 stipulation, Mr. Williams admits to violating 21 Section 100(n) of the Casino Control Act. 22 There would be a penalty of $250, and a 23 five-day working suspension with credit for 24 time served. 25 CHAIR KASSEKERT: Thank you. 14 ITEM NO. 4 1 Mr. Williams, again, do you have 2 anything to say? 3 MR. WILLIAMS: No, ma'am. 4 CHAIR KASSEKERT: Okay. Mr. Armstrong? 5 MR. ARMSTRONG: Chair, I spoke with 6 Commission Counsel prior to the meeting. I 7 believe we were going to amend the stipulation 8 of settlement to a two-day suspension? 9 CHAIR KASSEKERT: Okay. 10 MR. ARMSTRONG: Because Mr. Williams has 11 already served -- 12 CHAIR KASSEKERT: Served. 13 MR. ARMSTRONG: -- the suspension 14 imposed by the Trump Plaza. 15 CHAIR KASSEKERT: Okay. So, actually, 16 it was a seven-day suspension with five days 17 already served? 18 MR. ARMSTRONG: No. I believe he's only 19 served three days so far. 20 CHAIR KASSEKERT: Three days. Okay. 21 MR. ARMSTRONG: So the Commission order 22 modifying the three days between the Division 23 and Mr. Williams, we'll only impose a two-day 24 suspension. 25 CHAIR KASSEKERT: Okay. Gotcha. All 15 ITEM NO. 5 1 right. 2 Any objections to that change? 3 COMMISSIONER SOMMELING: No objection, 4 Madame Chair. 5 CHAIR KASSEKERT: Okay. Is there a 6 motion? 7 COMMISSIONER HARRINGTON: I move to 8 approve the stipulation of settlement and find 9 John M. Williams in violation of NJSA 10 5:12-100(n) of the Act and impose a civil 11 penalty of $250 and a two-working day -- 12 five-day working day suspension with credit for 13 days already suspended without pay. 14 COMMISSIONER SOMMELING: Second. 15 CHAIR KASSEKERT: Is that correct? 16 MS. NAGENGAST: Yes. That sounds good. 17 CHAIR KASSEKERT: Okay. The motion has 18 been made and seconded. All in favor? 19 (Ayes.) 20 CHAIR KASSEKERT: Opposed? 21 (No response.) 22 CHAIR KASSEKERT: Motion carries. 23 Thank you for coming. Good luck. 24 MR. WILLIAMS: Thank you. 25 MR. NANCE: Item No. 5, stipulation of 16 ITEM NO. 5 1 settlement in State versus RIH Acquisitions, 2 New Jersey, LLC. 3 MS. NAGENGAST: Chair, Commissioners -- 4 MR. NANCE: Miss Nagengast? 5 MS. NAGENGAST: -- for your 6 consideration is a stipulation of settlement 7 between the Division and the Hilton in which 8 the Hilton admits to having violated NJAC 9 19:48-2.4(a)(1) and (a)(2). For that 10 violation, it would be assessed a $10,000 11 penalty. 12 Miss Wosnack is here on behalf of 13 Respondent and Mr. Stebbins on behalf of the 14 Division. 15 CHAIR KASSEKERT: Good morning, Miss 16 Wosnack. 17 MS. WOSNACK: Good morning. I have 18 nothing to add other than to ask you to approve 19 the settlement. 20 Thank you. 21 CHAIR KASSEKERT: Thank you. 22 Mr. Stebbins? 23 MR. STEBBINS: Thank you. 24 I couldn't have said it better myself. 25 The materials are in front of you. The 17 ITEM NO. 6 1 settlement is in front of you, and I ask that 2 you approve it. 3 CHAIR KASSEKERT: Thank you. 4 Any questions? 5 COMMISSIONER SOMMELING: No questions, 6 Madame Chair. 7 VICE CHAIR EPPS: Madame Chair, I move 8 that we approve the stipulation of settlement 9 and impose a civil penalty of $10,000 against 10 RIH Acquisitions New Jersey, LLC, for violation 11 of Commission regulations regarding 12 self-excluded persons. 13 CHAIR KASSEKERT: Is there a second? 14 COMMISSIONER HARRINGTON: Second. 15 CHAIR KASSEKERT: The motion has been 16 made and seconded. All in favor? 17 (Ayes.) 18 CHAIR KASSEKERT: Opposed? 19 (No response.) 20 CHAIR KASSEKERT: Motion carries. 21 Thank you, 22 MS. WOSNACK: Thank you. 23 MS. NAGENGAST: Thank you. 24 MR. NANCE: Item No. 6, initial decision 25 in State versus Harry D. Tennant. 18 ITEM NO. 6 1 Mr. Corbett? 2 MR. CORBETT: Madame Chair, 3 Commissioners, for your consideration you have 4 the initial decision of Commissioner Sommeling 5 finding the Respondent disqualified pursuant to 6 Section 86(c)(1) of the Act, not rehabilitated 7 pursuant to Section 91(d), and not entitled to 8 waiver pursuant to 91(e). His casino service 9 employee registration shall be revoked. 10 The initial decision goes on to find 11 good cause pursuant to Section 106(c) to allow 12 Respondent to work in a noncredential 13 employment. 14 CHAIR KASSEKERT: Thank you. 15 MR. CORBETT: Mr. Armstrong is here for 16 the Division, and they've filed exceptions. 17 And Mr. Tenant is here. 18 CHAIR KASSEKERT: Thank you. 19 Mr. Armstrong? 20 MR. ARMSTRONG: Thank you, Chair. Good 21 morning. Good morning, Commissioners. 22 You have my exceptions from August 25th. 23 Start out, the Division wholeheartedly agrees 24 with Commissioner Sommeling's initial decision 25 in this matter, finding the disqualifying drug 19 ITEM NO. 6 1 conviction in Mr. Tennant's background, and 2 that he failed to show his rehabilitation or 3 that he showed that a waiver of his 4 disqualification was appropriate in this 5 matter. 6 What we do take exception to is 7 Commissioner Sommeling finding that Mr. Tennant 8 has shown good cause and that he should be 9 permitted noncredential employment at this 10 time. Primarily our position is based on the 11 Giulante factors. The Commission established 12 these factors in State v. Giulante some years 13 ago to apply as to whether or not a waiver of a 14 disqualification should be applied. It has now 15 since been modified to also include 16 noncredential employment as well. 17 In applying the Giulante factors, 18 Commissioner Sommeling found that waiver wasn't 19 appropriate in Mr. Tennant's case, that he did 20 qualify for a waiver of disqualification. 21 Commissioner Sommeling then applied those same 22 factors and found that Mr. Tennant did qualify 23 and did show good cause that he be permitted 24 noncredential employment. 25 It is our position that Commissioner 20 ITEM NO. 6 1 Sommeling only rested his decision on certain 2 factors -- certain Giulante factors. And that 3 he imposed Giulante Factor No. 3 which requires 4 that a respondent show -- or admit that they 5 committed the criminal offense in the first 6 place and are sorry for it, that had he applied 7 that on the record before you in the initial 8 decision, that he would determined that Mr. 9 Tennant had not shown good cause, that he 10 wasn't someone who was -- it would be 11 appropriate to find that he had demonstrated 12 good cause for noncredential employment. 13 Throughout the hearing, Mr. Tennant denied that 14 he actually sold cocaine. The facts of the 15 case were that he twice sold cocaine to a 16 confidential informant. That was the basis for 17 the police to obtain a search warrant and 18 search his home. And he was charged and 19 ultimately pled guilty and was convicted of 20 selling cocaine. During the hearing he denied 21 that he ever did that. 22 That -- that aside, he -- also that he 23 never showed any remorse for what he had done, 24 what he has been convicted of. Shortly after 25 he was convicted, he violated his probation. 21 ITEM NO. 6 1 The Division would ask, with all due 2 respect to Mr. Sommeling, that the record 3 before you -- especially if you apply Giulante 4 Factor No. 3 to this record, that it shouldn't 5 be determined that he shown good cause for 6 someone who should be given the benefit of 7 working in this gaming industry. It's a 8 privilege to work in this industry. Mr. 9 Tennant is an unrepentant, convicted drug 10 dealer. With all due respect to Mr. Tennant, 11 he hasn't shown good cause in this record 12 before you, and he shouldn't be granted 13 noncredential employment. 14 Thank you. 15 CHAIR KASSEKERT: Mr. Tennant, is there 16 anything you'd like to say? 17 MR. TENNANT: Yes. 18 CHAIR KASSEKERT: Can you please stand 19 and be sworn in? 20 MR. NANCE: Stand, please. 21 22 HARRY D. TENNANT, was duly sworn to 23 testify in this matter. 24 25 MR. NANCE: Please state your name for 22 ITEM NO. 6 1 the record. 2 MR. TENNANT: Harry D. Tennant. 3 MR. NANCE: Thank you. 4 MR. TENNANT: As far as we not showing 5 remorse, I've been showing remorse. When I was 6 in here, I didn't really understand too much of 7 the procedures. I was being explained as it 8 was going on. 9 Now, he's right. I never -- I never 10 admitted to selling drugs because I never did. 11 But I never stood there and denied of being in 12 possession of it, knowing that was my fault. 13 That was my -- my wrongdoing for having 14 possession of drugs at the time. And I'm going 15 through the consequences of it right now. But 16 taking away my work is going to affect my 17 family harder than me, what I'm doing right 18 now. And it's kind of hard. 19 I mean, my situation, I happen to be on 20 probation and being known as a convicted drug 21 dealer, even though I never sold drugs, but I 22 have that stipulation on my back for the rest 23 of my life. And taking away my life is just 24 going to further along just hurt me. I then 25 have to downgrade my work and everything else, 23 ITEM NO. 6 1 and I don't see that's right. 2 And he barely even knows me, he doesn't 3 know how remorseful I am, how everything is 4 going on, and how everything is affecting me. 5 And I don't see that as being right. Because 6 by this affecting me is also affecting my kids 7 and my household. I could lose my job, and I 8 could also lose my house. And he is not -- 9 he's not really looking at that. Yes, I 10 admitted I was wrong. But this is also -- I 11 don't know. 12 I'm done. 13 CHAIR KASSEKERT: Are you working now? 14 MR. TENNANT: No. 15 CHAIR KASSEKERT: No. You're not 16 working? 17 MR. TENNANT: No. I'm currently got 18 laid off. 19 CHAIR KASSEKERT: Where were you working 20 before? 21 MR. TENNANT: The Water Club. 22 CHAIR KASSEKERT: At the Water Club? 23 MR. TENNANT: Yes. 24 CHAIR KASSEKERT: Let me ask if any 25 Commissioners have any questions? 24 ITEM NO. 6 1 COMMISSIONER SOMMELING: Madame Chair, 2 the only thing I wanted to say on the record 3 was that my recommendation was for 4 noncredential hotel positions. 5 CHAIR KASSEKERT: I understand that. 6 Yes, Commissioner Sommeling. 7 Commissioner Epps? 8 VICE CHAIR EPPS: A quick question for 9 the Division. 10 Mr. Armstrong, do you distinguish at all 11 between possession with intent to distribute 12 and a straight distribution charge? 13 MR. ARMSTRONG: No. I do not. Just a 14 matter of -- actually, they're both under the 15 same section of the criminal statute. It's 16 just a matter of whether or not the facts bear 17 out that the person sold the drugs, and the 18 State had evidence against the person actually 19 selling the drugs versus that they had such 20 quantity in their possession that it's presumed 21 intent that they were selling the drugs. 22 VICE CHAIR EPPS: And if I'm correct, he 23 pled to possession with intent but not to a 24 distribution charge; right? 25 MR. ARMSTRONG: Yeah. That's the actual 25 ITEM NO. 6 1 conviction. 2 VICE CHAIR EPPS: I mean, I guess my 3 only thinking is -- and I understand your 4 concern with his not being remorseful to 5 admitting to selling drugs. But if I'm looking 6 at his statements and his plea, they seem to 7 line up with the fact that, you know, he did 8 have them, and he admitted to having them, and 9 he realized he shouldn't have had them. The 10 only issue we seem to have here is that he 11 didn't say he was a drug dealer, selling drugs. 12 And that lines up with the plea and that lines 13 up with his statement. But what you're saying 14 is there was other information beyond the 15 actual plea that indicated that he did sell. 16 Is that -- 17 MR. ARMSTRONG: According to the police 18 report, yeah. The crime that -- the probable 19 cause to obtain the search warrant was that the 20 police, using a confidential informant, 21 purchased drugs twice from Mr. Tennant. That 22 was the probable cause for them to obtain a 23 search warrant to search Mr. Tennant's home. 24 And Mr. Tennant -- you know, there was 25 another rule that the Commission handed down 26 ITEM NO. 6 1 years ago under the Dossman decision, where 2 actually none of this -- actually, really once 3 the disqualifying conviction is established, 4 you're really not supposed to revisit the 5 actual underlying -- the Dossman rule is 6 supposed to be that the Respondent can't rehash 7 the facts that led to the conviction before the 8 Commission. You have to show respect for the 9 judgment of the conviction out of Superior 10 Court. 11 VICE CHAIR EPPS: All right. I mean, I 12 guess -- and I don't mean to get into minutiae, 13 but the Judgement of Conviction from the 14 Superior Court now is based on the plea of 15 possession. 16 MR. ARMSTRONG: Well, possession with 17 intent to -- 18 VICE CHAIR EPPS: As opposed to a 19 distribution charge. 20 MR. ARMSTRONG: And that, Vice Chair, I 21 mean, that's the point of my exceptions, is 22 that I wouldn't be able to argue this before 23 you if Mr. Tennant had acknowledged that he had 24 sold drugs to the confidential informant twice 25 and that he was really sorry. He told 27 ITEM NO. 6 1 Commissioner Sommeling how sorry he was. I 2 wouldn't have that argument. There would be no 3 need for it because he had admitted his 4 wrongful conduct and shown contrition and be, 5 on my opinion, stronger on the road to 6 rehabilitation, which is supposedly one of the 7 underlying things for the Commission to 8 determine whether or not good cause does exist 9 for noncredential employment. 10 Ultimately, the point of all this 11 regulation is to make sure that we don't have a 12 person who's a threat to the integrity of the 13 industry here getting back into the gaming 14 industry. And that's why I think 106(c) 15 exists. The legislature recognized that. We 16 don't tie your hands if you know someone is a 17 serious criminal that you would not be able to 18 do anything to stop that person from going out 19 and getting a job in the hotel industry. 20 VICE CHAIR EPPS: I mean, I guess the 21 difficulty I'm having -- and this is just 22 personal -- is not that you're saying he's not 23 repentant. You're saying that he's not 24 repentant enough, so he didn't fully detail the 25 degree of his repentance. 28 ITEM NO. 6 1 MR. ARMSTRONG: Well, no. I didn't say 2 that. 3 VICE CHAIR EPPS: So what you're saying 4 is he possessed the drugs, and he's sorry for 5 that, and he's messed up his life, and he's 6 trying to move on from that. And you're saying 7 because he didn't specifically admit to being a 8 drug dealer, he can't be rehabilitated or he 9 can't find good cause because -- 10 MR. ARMSTRONG: Well, he -- 11 VICE CHAIR EPPS: Because he didn't say 12 those words. 13 MR. ARMSTRONG: Not necessarily those 14 words. I'm not going to argue semantics. He 15 denied that he sold the drugs to the 16 confidential informant, which was the basis for 17 the search warrant, which was the basis for the 18 indictment and ultimately the conviction in the 19 matter. He's denying that he -- he's admitting 20 that he possessed drugs and that he did drugs 21 and that he had a problem with drugs. But the 22 underlying elements of the crime of which he 23 was convicted of, he's denying that he ever 24 committed it. And that's what's disqualifying. 25 If it wasn't it was just possession, we 29 ITEM NO. 6 1 wouldn't be here. 2 And it's our position that if he doesn't 3 acknowledge and admit, then how can he ever 4 show he's rehabilitated if he doesn't even 5 acknowledge and admit and take responsibility 6 for what he's done in the first place? 7 VICE CHAIR EPPS: That's a good 8 question. 9 CHAIR KASSEKERT: Any other questions? 10 Commissioner Epps? 11 VICE CHAIR EPPS: I may need -- 12 CHAIR KASSEKERT: You want a recess? 13 VICE CHAIR EPPS: Yeah. 14 CHAIR KASSEKERT: All right. We're 15 going to recess. 16 (A recess was taken from 10:49 to 11:02 17 a.m.) 18 CHAIR KASSEKERT: We'll go back on the 19 record. 20 Let me ask if there are any other 21 questions? 22 VICE CHAIR EPPS: No. Ma'am, Chair. I 23 had some hesitation, if that's the word I'll 24 use. But after speaking with Counsel a little 25 bit, I realized that I was not the trier of 30 ITEM NO. 6 1 fact in this case -- or the hearing examiner. 2 Commissioner Sommeling was. He reviewed the 3 Respondent. He made his observations. And I'm 4 comfortable that he weighed all of the factors 5 in Giulante and came to the conclusions that he 6 did and, therefore, I'm willing to support 7 Commissioner Sommeling, and I would move that 8 we adopt the initial excision and, A, find Mr. 9 Tennant disqualified and not rehabilitated 10 pursuant to Section 86(c)(1) and 91(d) of the 11 Act; B, revoke his casino service employee 12 registration; but, however, C, find good cause 13 to pursuant to Section 106(c) of the Act to 14 allow Mr. Tennant to work in a noncredential 15 hotel position. 16 CHAIR KASSEKERT: Is there a second? 17 COMMISSIONER HARRINGTON: I'll second 18 that. 19 CHAIR KASSEKERT: The motion has been 20 made and seconded. All in favor? 21 (Ayes.) 22 CHAIR KASSEKERT: Opposed? 23 (No response.) 24 CHAIR KASSEKERT: Motion carries. Thank 25 you. 31 ITEM NO. 7 1 MR. TENNANT: Thank you. 2 MR. NANCE: Item No. 7, petition for 3 early reapplication for Steve Maurer and 4 Woodrow Carpenter, Jr. 5 Miss Frigen, 6 MS. FRIGEN: I don't believe so, but let 7 me ask whether Steven Maurer is present or 8 represented? 9 (No response.) 10 MS. FRIGEN: Apparently not. 11 For your consideration is his petition 12 seeking permission to reapply early for a 13 license, registration, and/or noncredential 14 hotel employment. 15 This isn't Mr. Maurer. This is the next 16 case, Mr. Carpenter. 17 CHAIR KASSEKERT: Okay. 18 MS. FRIGEN: The Division has interposed 19 an objection to Mr. Maurer's petition in its 20 entirety. And he, apparently, is not here to 21 present his case. 22 CHAIR KASSEKERT: Okay. Thank you. 23 Mr. Armstrong? 24 MR. ARMSTRONG: Chair, Commissioners, 25 you have our letter of February 5th. In that 32 ITEM NO. 7 1 we detailed that Mr. Maurer has a number of new 2 arrests over last December and into January. 3 Just to update you, on February 18th, he was 4 indicted with terroristic threats and stalking. 5 I believe that was as a result of him being in 6 the Atlantic County jail for all these months 7 and not being able to appear at other meetings 8 where his matter was scheduled. On June 11th, 9 through a plea agreement, the indictment 10 charges were dismissed, and he was convicted of 11 violating a restraining order. 12 We ask that you deny his petition at 13 this time. 14 CHAIR KASSEKERT: Thank you. 15 Any questions? 16 COMMISSIONER SOMMELING: No questions, 17 Madame Chair. 18 VICE CHAIR EPPS: Madame Chair, I move 19 we deny Mr. Maurer's petition to reapply early 20 for a casino employee license, a casino service 21 employee registration, or to work as a 22 noncredential hotel employee. 23 COMMISSIONER SOMMELING: Second. 24 CHAIR KASSEKERT: The motion has been 25 made and seconded. All in favor? 33 ITEM NO. 7 1 (Ayes.) 2 CHAIR KASSEKERT: Opposed? 3 (No response.) 4 CHAIR KASSEKERT: Motion carries. 5 MS. FRIGEN: Okay. The next case we 6 have is Woodrow Carpenter, and this is Mr. 7 Carpenter. 8 For your consideration is his petition 9 for early reapplication. And in this 10 situation, the Division has recommended that 11 the petition be granted in its entirety. 12 CHAIR KASSEKERT: Mr. Carpenter, is 13 there anything you'd like to say, today? 14 MR. CARPENTER: Yes, ma'am, briefly. 15 CHAIR KASSEKERT: Could you please rise, 16 and we'll swear you in. 17 MR. NANCE: Would you please raise your 18 right-hand. 19 20 WOODROW W. CARPENTER, JR., was duly 21 sworn to testify in this matter. 22 23 MR. NANCE: Please state your name. 24 MR. CARPENTER: Woodrow Carpenter. 25 MR. NANCE: Thank you. You may proceed. 34 ITEM NO. 7 1 CHAIR KASSEKERT: What would you like to 2 say, Mr. Carpenter? 3 You may sit down if you feel more 4 comfortable. 5 MR. CARPENTER: Thank you. 6 Just that I understand the importance 7 and the seriousness of the application process 8 and the licensing process. And that I fully 9 intend to follow through with the entire 10 process this time, followed up by gainful 11 employment in one of the casinos in the city, 12 and that I ask the Commission to support me in 13 that. 14 Thank you. 15 CHAIR KASSEKERT: Thank you. 16 Mr. Armstrong? 17 MR. ARMSTRONG: Chair, Commissioners, 18 the Division has no objection to this petition. 19 CHAIR KASSEKERT: Thank you. 20 Any questions? 21 COMMISSIONER SOMMELING: Madame Chair, I 22 move we grant Mr. Carpenter permission to 23 reapply early for a casino employee license, a 24 casino service employee registration, and/or to 25 work as a noncredential hotel employee. 35 ITEM NO. 8 1 COMMISSIONER HARRINGTON: Second. 2 CHAIR KASSEKERT: The motion has been 3 made and seconded. All in favor? 4 (Ayes.) 5 CHAIR KASSEKERT: Opposed? 6 (No response.) 7 CHAIR KASSEKERT: Motion carries. 8 Thank you for coming. Good luck. 9 MR. CARPENTER: Thank you, ma'am. 10 MR. NANCE: Item No. 8, application for 11 suspension in State versus Carmine DiNardo. 12 Miss DeLia? 13 MS. DeLIA: Good morning. First I'd 14 like to ask if Mr. DiNardo is here or 15 represented by anyone? 16 (No response.) 17 MS. DeLIA: Apparently not. 18 Mr. Armstrong is here today on behalf of 19 the Division. 20 CHAIR KASSEKERT: Mr. Armstrong? 21 MR. ARMSTRONG: Chair, Commissioners, 22 since Mr. DiNardo did not appear, we would rely 23 on our pleadings and ask that you suspend Mr. 24 DiNardo's credential. 25 CHAIR KASSEKERT: Thank you. 36 ITEM NO. 9 1 Any questions? 2 COMMISSIONER SOMMELING: No questions, 3 Madame Chair. 4 COMMISSIONER HARRINGTON: I'll move to 5 grant the Division's application for 6 suspension. 7 VICE CHAIR EPPS: Second. 8 CHAIR KASSEKERT: The motion has been 9 made and seconded. All in favor? 10 (Ayes.) 11 CHAIR KASSEKERT: Opposed? 12 (No response.) 13 CHAIR KASSEKERT: Motion carries. 14 MR. NANCE: Item No. 9, petition of 15 Trump Taj Mahal Associates for permission to 16 transfer a progressive slot jackpot pursuant to 17 NJAC 19:45-1.39(n). 18 Mr. Briliant? 19 MR. BRILIANT: Good morning, Madame 20 Chair, and Commissioners. 21 This is the petition of Trump Taj Mahal. 22 Miss Pickus has asked that it be heard on the 23 papers, and we do have a response from the 24 Division indicating that it has no objection to 25 the relief being requested. 37 ITEM NO. 9 1 I did circulate a proposed resolution, 2 have not heard from any of the parties on it, 3 objecting to it. 4 The matter is now before the Commission. 5 CHAIR KASSEKERT: Thank you. 6 Any questions? 7 COMMISSIONER SOMMELING: No questions, 8 Madame Chair. 9 COMMISSIONER HARRINGTON: No. 10 COMMISSIONER SOMMELING: Move to adopt 11 the draft resolution and grant the relief 12 requested by Trump Taj Mahal Associates to 13 permit the transfer of the "Ace on the Deal" 14 progressive jackpot to the "Joker Poker" 15 progressive slot machine jackpot, subject to 16 the compliance with the 30-day notice 17 requirement in NJAC 19:45-1.39(n). 18 CHAIR KASSEKERT: Is there a second? 19 VICE CHAIR EPPS: Second. 20 CHAIR KASSEKERT: The motion has been 21 made and seconded. All in favor? 22 (Ayes.) 23 CHAIR KASSEKERT: Opposed? 24 (No response.) 25 CHAIR KASSEKERT: Motion carries. 38 ITEM NO. 10 1 MR. BRILIANT: Thank you. 2 CHAIR KASSEKERT: Thank you. 3 MR. NANCE: Item No. 10, proposed 4 publication and temporary adoption of 5 amendments to NJAC 19:47-2.10. 6 Mr. Mamolen? 7 MR. MAMOLEN: Good morning, Madame Chair 8 and Commissioners. 9 This matter is before you for both 10 publication and temporary adoption. And it was 11 part of the industry wish list items. In 12 essence, it will enable a casino licensee to 13 deal a double-down card facedown at either 14 designated tables or upon player request. 15 Currently, it's either one way or the other 16 across all tables in the operation. What it 17 does is, essentially, conforms to the current 18 practice out there where a frequent player 19 wants to have their -- his or her card dealt 20 facedown. 21 CHAIR KASSEKERT: Thank you. 22 Any questions? 23 Commissioner Epps? 24 VICE CHAIR EPPS: No. That was going to 25 be my question, whether or not the table would 39 ITEM NO. 11 1 advertise that this happens at that game. 2 MR. MAMOLEN: It would have to be 3 posted. It would have to be noticed. 4 VICE CHAIR EPPS: Okay. Because some 5 other employers players kind of want to know 6 what the cards are. 7 MR. MAMOLEN: Yeah. 8 VICE CHAIR EPPS: All right. 9 CHAIR KASSEKERT: Any other questions? 10 COMMISSIONER SOMMELING: No other 11 questions, Madame Chair. 12 VICE CHAIR EPPS: Madame Chair, I move 13 that we approve this for publication and 14 temporary adoption. 15 COMMISSIONER HARRINGTON: Second. 16 CHAIR KASSEKERT: The motion has been 17 made and seconded. All in favor? 18 (Ayes.) 19 CHAIR KASSEKERT: Opposed? 20 (No response.) 21 CHAIR KASSEKERT: Motion carries. 22 MR. NANCE: Item No. 11, joint petition 23 of Shuffle Master, Inc., and Trump Taj -- 24 excuse me -- Trump Marina Associates, LLP, for 25 approval of the game of three-card poker 40 ITEM NO. 11 1 progressive, a variation of the three-card 2 poker pursuant to NJAC 19:47-8.4, NJAC 3 19:40-3.7, and NJSA 52:14B-4. 4 Mr. Moncrief? 5 MR. MONCRIEF: Madame Chair, members of 6 the Commission, before you is the petition -- a 7 joint petition filed by the Shuffle Master and 8 the Trump Marina. Essentially, it's seeking to 9 add a progressive wager with an ante bonus to 10 the game of three-card poker. 11 I've been in contact with Marie Jones 12 who represents the Petitioners and informed her 13 that we were reviewing the petition, working on 14 regulations so that we can get them in effect 15 and a test may begin of the new wager. She has 16 no objection to having this matter tabled for a 17 period up to 90 days so we can achieve that 18 goal. 19 CHAIR KASSEKERT: Thank you. 20 Before asking if there are any 21 questions, we want to say welcome back, Mr. 22 Moncrief. 23 MR. MONCRIEF: He's the new father of 24 twin baby girls. Congratulations. 25 (Applause.) 41 ITEM NO. 12 1 MR. MONCRIEF: Thank you. 2 CHAIR KASSEKERT: Any questions for him? 3 VICE CHAIR EPPS: Sleep much? 4 (Laughter.) 5 MR. MONCRIEF: Yeah. Pretty well. Wife 6 doesn't, but I do. 7 (Laughter.) 8 COMMISSIONER SOMMELING: Madame Chair, I 9 move to table up to 90 days and to authorize 10 the publication of notice of adoption to that 11 effect. 12 VICE CHAIR EPPS: Second. 13 CHAIR KASSEKERT: The motion has been 14 made and seconded. All in favor? 15 (Ayes.) 16 CHAIR KASSEKERT: Opposed? 17 (No response.) 18 CHAIR KASSEKERT: Motion carries. 19 MR. MONCRIEF: Thank you. 20 CHAIR KASSEKERT: Congratulations again. 21 MR. MONCRIEF: Thank you. 22 MR. NANCE: Item No. 12, petition of MGM 23 MIRAGE and MAC CORP. for temporary 24 qualification of Joseph Sugerman as a director 25 of MGM MIRAGE. 42 ITEM NO. 12 1 CHAIR KASSEKERT: 12. 12. 2 MR. CASIELLO: He sees a microphone. He 3 just can't -- 4 MR. MADAMBA: It's a billing opportunity 5 for Paul. 6 (Laughter.) 7 MR. CASIELLO: Morning, Madame Chair and 8 Commissioners. 9 CHAIR KASSEKERT: Good morning. Could 10 we have Miss Richardson introduce the topic 11 here? 12 MS. RICHARDSON: Good morning. 13 MR. CASIELLO: Sorry. 14 CHAIR KASSEKERT: Good morning. 15 MS. RICHARDSON: Good morning, Chair and 16 Commissioners. 17 A draft resolution was circulated in 18 this matter, and appearing for the Petitioners 19 is Nick Casiello and for the Division is DAG 20 Jim Fogarty. 21 CHAIR KASSEKERT: I know you're an 22 overachiever, Mr. Casiello, but Commissioner 23 Fedorko is no longer here to, you know, throw 24 you off your -- 25 MR. CASIELLO: You're not going to hold 43 ITEM NO. 12 1 up -- 2 CHAIR KASSEKERT: No. We tried to get 3 Commissioner Harrington to do that, but she 4 declined. Showing good sense. 5 MR. CASIELLO: I appreciate that. 6 CHAIR KASSEKERT: You may proceed. 7 MR. CASIELLO: Well, you already know 8 what the matter is about from the 9 introductions. 10 As Tracy -- as Miss Richardson noted, we 11 have the draft resolution. We are in agreement 12 to the form and substance of the draft 13 resolution. As noted in our petition, DGE 14 report, Dr. Sugerman has already filed a 15 preliminary license application and has 16 acknowledged the obligation to file a full 17 application within 15 days if this petition is 18 granted. 19 Thank you. 20 CHAIR KASSEKERT: Thank you. 21 Mr. Fogarty? 22 MR. FOGARTY: Commissioners, good 23 morning. 24 We filed a letter dated September 10, 25 2009, not objecting to Dr. Sugerman, who is an 44 ITEM NO. 12 1 otolaryngologist. I've been dying to say that 2 out loud. 3 (Laughter.) 4 MR. FOGARTY: From California to sit on 5 the board of directors of MGM MIRAGE Mirage. 6 We have no objection to him being given that 7 temporary privilege pending his full 8 investigation. 9 I've seen the draft resolution that's 10 been circulated and have no objection to its 11 entry. 12 CHAIR KASSEKERT: Thank you. 13 Any questions? 14 COMMISSIONER SOMMELING: No questions, 15 Madame Chair. 16 VICE CHAIR EPPS: Madame Chair, I move 17 that we adopt the draft resolution and 18 authorize Joseph Sugerman on a temporary basis 19 and prior to his plenary qualification to 20 assume the duties and exercise the powers of 21 Director of MGM MIRAGE, subject to the 22 conditions contained in NJAC 19:43-2.7 which, 23 among other things, require that he file a 24 history personal history disclosure form MJ and 25 New Jersey Supplement by October 7th, 2009. 45 ITEM NO. 13 1 COMMISSIONER HARRINGTON: I'll second 2 that. 3 CHAIR KASSEKERT: Motion is made and 4 seconded. This is a roll call vote. 5 MR. NANCE: Commissioner Harrington? 6 COMMISSIONER HARRINGTON: Yes. 7 MR. NANCE: Commissioner Sommeling? 8 COMMISSIONER SOMMELING: Yes. 9 MR. NANCE: Vice Chair Epps? 10 VICE CHAIR EPPS: Yes. 11 MR. NANCE: Chair Kassekert? 12 CHAIR KASSEKERT: Yes. 13 MR. NANCE: The record will reflect that 14 the motion is unanimous. 15 CHAIR KASSEKERT: Thank you. 16 MR. CASIELLO: Thank you. 17 MR. NANCE: Item No. 13, joint petition 18 of MGM MIRAGE, Boyd Gaming Corporation, and 19 Marina District Development Company, LLC, for 20 declaratory rulings as to certain procedural 21 issues related to Marina District Development 22 Company, LLC's, reopening 2005 casino license 23 hearing. 24 Miss Richardson? 25 MS. RICHARDSON: Good morning, again, 46 ITEM NO. 13 1 Chair and Commissioners. 2 Would counsel please enter their 3 appearances? 4 MR. CASIELLO: Nick Casiello, Fox 5 Rothschild, appearing on behalf of Petitioner, 6 MGM MIRAGE. 7 I'd also like to take the opportunity to 8 introduce to the Commissioners John McManus, 9 who is Deputy General Counsel and Senior Vice 10 President of MGM MIRAGE. 11 John? 12 CHAIR KASSEKERT: Good morning. 13 MR. McMANUS: Good morning. 14 MR. O'GARA: Paul O'Gara for Marina 15 District Development Company and Boyd Gaming 16 Corporation. 17 MR. ROVER: George Rover for the 18 Division of Gaming Enforcement, 19 MR. ZARRILLO: Anthony Zarrillo for the 20 Division. 21 CHAIR KASSEKERT: Good morning. 22 MR. ZARRILLO: Good morning. 23 CHAIR KASSEKERT: The Commission has 24 been asked to consider today the request by 25 joint Petitioners MGM MIRAGE, Boyd Gaming 47 ITEM NO. 13 1 Corporation, and Marina District Development 2 Company, LLC, better known as the Borgata for a 3 declaratory ruling as to certain procedural 4 issues concerning Borgata's reopened 2005 5 casino license hearing. 6 By way of background, the Commission 7 last renewed Borgata's casino license in 2005 8 for a five-term that, in the normal course, 9 expires next year. At that 2005 hearing, the 10 Commission found qualified Borgata's two major 11 publicly traded holding companies, Boyd and 12 MGM. For today's hearing, it is relevant to 13 note that when apprising the Commission in 2005 14 about MGM's engagement to develop a casino 15 hotel in Macau, the Division had not yet 16 concluded its investigation in that matter. 17 On May 18th, 2009, the Division filed a 18 report entitled "Special Report of the Division 19 of Gaming Enforcement to the Casino Control 20 Commission on its Investigation of MGM MIRAGE's 21 Joint Venture with Pansy Ho in Macau, Special 22 Administration Region, People's Republic of 23 China." The report is the culmination of the 24 Division's investigation of the joint venture 25 that owns and operates the MGM Grand Macau. 48 ITEM NO. 13 1 On July 27th, 2009, the Division by 2 letter formally requested that the Commission 3 reopen the 2005 Borgata casino license hearing 4 pursuant to Subsection 88a of the Casino 5 Control Act which provides that "the Commission 6 shall reopen licensing hearings any time at the 7 request of the Division." In light of that 8 reopening, the petition was filed seeking 9 various declaratory relief. 10 Specifically, the Joint Petitioners 11 asked that the Commission declare, first: One, 12 that the reopened casino license hearing is for 13 the exclusive purpose of considering the 14 qualification of MGM MIRAGE in light of the 15 matters that the Division has raised in its 16 special report; two, that the qualification of 17 Boyd is not at issue in the reopened hearing; 18 three, that the reopened casino license hearing 19 will be conducted in a manner which will not 20 cause disruption in service or otherwise 21 adversely impact operations at the Borgata 22 Hotel Casino & Spa; and, four, that Borgata's 23 casino license may be renewed in the ordinary 24 course by June 30th, 2010, even if the issues 25 raised by the Division's special report 49 ITEM NO. 13 1 concerning the qualifications of MGM are 2 unresolved as of that date. 3 Although the Division, in its response 4 to the joint petition does not disagree with 5 the Joint Petitioners' request about the 6 purpose of the reopening of the hearing, it 7 asserts that MGM bears the burden of proof in 8 such a hearing as required by the Act. While 9 that may be true, this issues has no yet been 10 briefed. 11 Mr. Casiello, are you and your 12 colleagues prepared to address that matter now? 13 MR. CASIELLO: Yes, Madame Chair. For 14 the record, I don't believe that it is 15 necessary for you to rule on that today to 16 determine the relief we have requested the in 17 the petition. However, I will say that we 18 don't -- do not disagree with the statement 19 contained at the bottom of Page 3 of the 20 Division's report that MGM Mirage bears the 21 burden of proof in accordance with the Casino 22 Control Act, the Commission, and judicial 23 precedence. 24 CHAIR KASSEKERT: Thank you. 25 Mr. Zarrillo, Mr. Rover, any comment? 50 ITEM NO. 13 1 MR. ROVER: No. Again, I would just 2 like to say that, again, we view the burden of 3 proof as also the burden of going forward as 4 well as the burden to affirmatively establish 5 their good character, honesty, and integrity by 6 a clear and convincing evidence. 7 CHAIR KASSEKERT: Thank you. 8 Then I would recommend that the 9 Commission dispose of the burden of proof issue 10 as part of its rulings on the joint petition. 11 With that, we are prepared to have the parties 12 address the substance of the pending matter. 13 Certainly points bear noting. Today's 14 proceedings are but a mere procedural step in 15 the process and not a disposition of the 16 ultimate question of continued qualification, 17 which in due course, would typically follow the 18 conclusion of a full trial-type hearing. 19 Further, not only are the matters before 20 us procedural in nature, as declaratory rulings 21 are, they are left to our sound discretion as 22 to whether or not they should be entertained at 23 all. 24 In that regard, while not foreclosing a 25 discussion on any of the points raised in the 51 ITEM NO. 13 1 petition and the briefs, counsel in their 2 presentation should focus, particularly, 3 particular attention on the rulings sought 4 concerning the disruption in service at the 5 Borgata and, more importantly and not 6 surprisingly, on the question of renewing 7 Borgata's casino license next year if the 8 reopening hearing has not concluded by then. 9 Counsel, you are prepared to proceed? 10 MR. O'GARA: Yes. Thank you, Chair. 11 And, thank you. I think most of the -- 12 you saved all of us the task of procedurally 13 getting us to where we are today with respect 14 to the dates on which things occurred and the 15 substance of what's before you. And I think, 16 as you stated, that all of the parties here 17 agree that the report that was filed by the 18 Division, the special report, it is not with 19 respect to any activities of Boyd Gaming but, 20 in fact, affects Boyd Gaming and MDDC by the 21 very fact that MGM Mirage, who is the subject 22 of -- or is a holding company of that casino 23 licensee. 24 The issue on which we seek the clarity 25 is the specific one regarding how one deals 52 ITEM NO. 13 1 with the casino license renewal of MDDC, which 2 would in the normal course of a five-year 3 renewal in June of 2005 would be the subject of 4 the Commission's scrutiny in June of 2010. One 5 assumes May or June of 2010. And the process 6 that leads to that would begin some months 7 before that with the required filings and the 8 investigation by the Division of Gaming 9 Enforcement into the operations of MDDC, Boyd, 10 and MGM MIRAGE. 11 Certainly, if there were no question 12 that the hearing on the special report could be 13 concluded three weeks from now, six weeks from 14 now, eight weeks from now, and we had certainty 15 about that, there would be no issue for your 16 determination. I think that the reason that 17 there is an issue for your determination is the 18 fact that all the documents filed with you to 19 date have indicated there is no certainty that 20 the preliminary processes that will lead up to 21 that hearing, and the hearing itself, will 22 necessarily be concluded or, in fact, the 23 result determined prior to the time you would 24 consider the renewal in June of 2010. 25 And what we seek is a ruling or a 53 ITEM NO. 13 1 direction with respect to there can be some 2 certainty that, in the normal course, 3 operations would continue at the Borgata, that 4 there is no uncertainty as to its status as a 5 licensed casino. If, in fact, there is not a 6 completion of the hearing on the special report 7 in sufficient time for you to then take into 8 consideration whatever your determination is, 9 and how that impacts upon what would be the 10 renewal process and, ultimately, the renewal of 11 the license. 12 It would appear there's three obvious 13 alternatives. And I think that all the parties 14 agree, and I think the Commission sees all 15 three of the alternatives. The first is that, 16 you know, we'd be concluded. We would have a 17 result. We'd all be here in June of 2010 and 18 have a happy day. 19 There's also the likelihood or the 20 possibility -- I don't think we can address 21 whether it's a possibility or a likelihood. 22 And I think that's one of the difficulties here 23 is, no one can say with any degree of certainty 24 it's more likely than not that things will be 25 concluded by certain dates. I mean, we're 54 ITEM NO. 13 1 dealing with things have that have to be 2 resolved with a hearing. And there's no 3 template to say that it can be -- you know, 4 done by X or Y. And assuming that there were 5 not to have been a determination or a hearing 6 not been concluded, certainly the Commission 7 would have completed applications and, 8 certainly, under the Administrative Procedure 9 Act, that license would presumably continue 10 until there were a determination or a hearing 11 on that renewal. You could certainly conclude 12 that until there was a conclusion of this 13 hearing, you weren't going to make that 14 determination. And it could continue in that 15 statutorily provided state of continued 16 licensure, which in the past has occurred. And 17 I think it's occurred with respect to a few 18 days or few weeks. I would suggest that there 19 probably -- there would be some hesitancy on 20 the part of the Commission we would move 21 forward and say, hey, we know in November or 22 October that this is going to be two and a half 23 or three months, that one wants to sit there in 24 that kind of statutory position, which is an 25 application is pending. A license continues by 55 ITEM NO. 13 1 operation of the Administrative Procedure Act, 2 and we kind of started this investigation into 3 qualification. It might be an awkward 4 circumstance. While it's certainly legally 5 permission, I would suggest to you, there is an 6 alternative. And that alternative is the one 7 which arises from which everyone refers to as 8 Bally/FLAG. And, in fact, has a real title of: 9 In the Matter of Reopened Casino Application of 10 Bally -- I believe it's Bally Park Place, Inc., 11 and GNOC Corp. There was a somewhat similar 12 circumstance, and at the time that the 13 Commission had to determine the qualifications 14 of the company that would result from the 15 merger of Hilton Hotels Corporation and Park 16 Place, which is a plenary qualification that's 17 necessary in order for all of those casino 18 licensees to continue as licensed casinos. 19 There was an unresolved issue regarding 20 a pending Division investigation into certain 21 activities by Park Place in the state of 22 Florida. And the Commission -- the factual 23 difference is clear. There was -- I believe 24 there was not yet a filed Division report with 25 respect to the activities in Florida. But 56 ITEM NO. 13 1 there was an investigation, and it was 2 certainly shaping itself into a report. The 3 Division had certainly indicated to the 4 Commission and reserved the fact that there 5 were issues that would be the subject of a 6 report. It was not something that was going to 7 be, you know, casually a sentence that would be 8 set at some later time. And the Commission 9 there, in a setting which I would suggest to 10 you is analogous or remarkably similar, in that 11 they had to pass on the qualifications of these 12 people, much as they would have to to renew a 13 casino license, did. And they found in that 14 case the one entity, which would be the 15 surviving entity, Park Place Entertainment, 16 qualified subject to and with the condition 17 that that qualification would be judged against 18 whatever the result was of the report that was 19 filed. If there was a hearing, the conclusion 20 of that hearing. 21 I would suggest to you that, as we have 22 the kind of uncertainty we do about timing, and 23 I -- you know, I, like you, I'm sure, would 24 like to say this could end the week after next 25 or whatever. But if we can't, I would suggest 57 ITEM NO. 13 1 to you that when you look at the APA 2 alternative, and I think kind of the narrow way 3 one would be inclined to construe it, that this 4 is kind of a road map of a way that you can. 5 And it would be, I would submit to you, a very 6 similar ruling that you would determine that 7 the applications would be filed, that a hearing 8 could be conducted, and that the qualifications 9 of the various constituents of MDDC and MDDC's 10 qualifications could be judged. And the 11 license could be renewed subject to, just as it 12 was in Bally/FLAG, any determination that was 13 made with respect to any either ongoing or 14 continuing proceedings with respect to the 15 special report. 16 And I guess the real question is why is 17 this of any import to Boyd or to MDDC? I think 18 it's important. I think the term, you know, 19 disruption, it certainly doesn't mean, you 20 know, gee, things are going to stop or there 21 will be uncertainty inside the building. But 22 it has to do with the perception of the people 23 that everyone has to deal with, whether they be 24 in the case of Boyd and MGM, their public 25 shareholders, their public debt holders, the 58 ITEM NO. 13 1 people who are regularly, you know, in and out 2 of their securities and credit market, and how 3 it affects their ability to access those 4 markets. Certainly, if there's some 5 determination not as to what the ultimate 6 outcome will be, but that whatever that 7 ultimate outcome that there is a path by which 8 the facility, which is what is involved in and 9 relied upon by those constituents, will 10 continue subject to the kind of procedures that 11 we suggest, I think that certainly is 12 desirable, not only for the parties, but also 13 probably for the State. 14 And for those reasons, I would urge you 15 to look at those three paths and to consider 16 adopting the third path, which is the 17 Bally/FLAG path, which I think creates some 18 certainty. 19 As on the timing, certainly, one could 20 argue that, gee, let me see if this hearing is 21 done. I can do that in -- what's it today? 22 September. I could do that in December. I 23 could do that in January. I could do that in 24 February. And, certainly, you can. I would 25 suggest to you that even those uncertainty -- 59 ITEM NO. 13 1 and there's may be conclusion prior to that -- 2 that to put that kind of certainty with respect 3 to the facility and to the effect it could have 4 on all the parties -- and particularly the one 5 which everyone concedes is not involved, at 6 least in the activities of the subject of the 7 Division report -- is an appropriate thing to 8 do and perhaps the right thing to do. And I'd 9 urge you to do so. 10 CHAIR KASSEKERT: I guess, Mr. O'Gara, I 11 see the difference with Bally/FLAG. I see a 12 factual difference there in that in this case, 13 the 2005 license for the Borgata has already 14 been reopened. So I see a little difference in 15 the fact patterns. 16 MR. O'GARA: Well, I concede that. I 17 concede reality. And it is reopened, and that 18 reopening has a whole -- once that is reopened, 19 I would concede to you, Chair, it's reopened as 20 to everything. If something happens tomorrow, 21 that, you know, that's into that reopened pot. 22 CHAIR KASSEKERT: Uh-hum. 23 MR. O'GARA: What I'm suggesting is 24 that -- is that because we don't have any way 25 of measuring when we're going to have a 60 ITEM NO. 13 1 determination on what I think everyone 2 concedes, and I think even in your remarks you 3 to some degree fashioned is a hearing about 4 certain discrete matters involving MGM Mirage. 5 That we're moving towards that, and when we get 6 there, these are the alternatives which I think 7 are available. I -- you know, I think it's 8 probably the full universe of them. There may 9 be others. I stand corrected if there are not. 10 But I'm suggesting that it's appropriate 11 for to you exercise your discretion to make the 12 determination that it can be subject to, for 13 lack of a better word, because it grants to the 14 parties -- and particularly to my client who 15 are not the subject of this -- some surety with 16 respect to continuity as they stand out there, 17 whether it be in the -- you know, the public 18 perception, the credit markets or the markets 19 with the present holders that they deal with, 20 and that that is something that I think is 21 within your discretion. I would suggest a wise 22 thing for you to do. 23 CHAIR KASSEKERT: Let me ask, before we 24 hear from Mr. Casiello, are there any 25 particular questions for Mr. O'Gara? 61 ITEM NO. 13 1 VICE CHAIR EPPS: I did have a question 2 on the Bally/FLAG option, too. And maybe I'm 3 oversimplifying or misstating it, but it makes 4 it more difficulty for me because you suggest 5 that we -- if we were to grant renewal that 6 renewal be granted subject to the outcome. 7 MR. O'GARA: Uh-huh. 8 VICE CHAIR EPPS: But you're granting 9 something new subject to the outcome of a 10 reopener that you haven't resolved. So 11 wouldn't the -- the decision in the reopener be 12 the issue that we would be granting? And how 13 can we grant renewal subject to a different 14 matter? 15 MR. O'GARA: Well, I think that that is 16 precisely what they did in Bally/FLAG. I think 17 in Bally/FLAG -- and, again, I'm not trying to 18 oversimplify the facts, Commissioner. But you 19 had a circumstance where what was Hilton Hotel 20 Corporation and its casinos were going to -- 21 were merging into Park Place. They were going 22 to be a single entity, and that entity had to 23 be qualified in order for those casinos, just 24 like a renewal. Absent that qualification, 25 those casinos would have, you know, not been 62 ITEM NO. 13 1 able under our law to continue to operate. 2 There would have had to have been some remedy 3 fashioned by the Commission, whatever 4 conserve -- whatever radical remedy there is. 5 And the Commission saw that -- and factually 6 different is here the report is filed. There 7 it was clear a report was going to be filed. 8 If one looks at the transcripts of what went 9 on, it was clear that there was an 10 investigation, and that investigation was 11 believed it was going to result in something 12 coming to the Commission. And the Commission 13 said, all right. Subject to that, we're 14 renewing, but that issue remains open. We're 15 not foreclosing ourselves. This isn't res 16 judicata. This doesn't mean, hey, because we 17 happen to be renew in the way the timing works, 18 they cut the Division off. They can't come 19 forward. We can't consider facts that would be 20 otherwise, perhaps, detrimental to the parties. 21 I'm suggesting to you the same thing 22 occurs here because the -- obviously -- and 23 again, I have to rely on what the Division and 24 MGM have filed. There are filings here which 25 indicate, number one, that the Division's 63 ITEM NO. 13 1 investigation into the activities which are the 2 subject of the report, much like the 3 Bally/FLAG, was a rather extensive one. It 4 involves a lot of people. A lot of things. 5 And it took considerable amount of time. And 6 it appears now that there will be a hearing, 7 and that that would be a contested case, and 8 there will be, you know, the need for 9 proceedings. Before there's a plenary hearing 10 on the facts. And that all of this is going to 11 take time. 12 And we just can't say with certainty, 13 hey, by May the 15th they'll be concluded. 14 They'll be a final result. Everything will be 15 wrapped up and bowed and tied. So we can say, 16 all right. How does that fit into how 17 determine the qualification of MGM Mirage? 18 There's a possibility, perhaps a probability 19 that that won't be the state of affairs. That 20 the state of affairs could or would be that 21 aside from the issues which are the subject of 22 the special report, the investigation is 23 completed with respect to MGM Mirage, with 24 respect to Boyd Gaming, with respect to MDDC. 25 And everything is appropriately there for you 64 ITEM NO. 13 1 to renew this casino license. But that isn't 2 going to be done for 30, 40, 50 days, whatever. 3 And how do we deal with that? Well, 4 clearly, I don't think anyone, particularly not 5 you or anyone here, is suggesting, well, we 6 throw our hands up and just say, all right, we 7 all just go home and case closed. I mean, 8 that's absurd. That's not on the table. 9 What's on the table is how and when we deal 10 with it? And I think there's two questions; 11 how and when. 12 I'm suggesting to you the how is the 13 Administrative Procedure Act. I think probably 14 works for infinite period of time, but I don't 15 think it's one which is necessarily the most 16 desirable one in this circumstance. And I'm 17 suggesting your precedent here is, okay, with 18 the exception of that issue, which if 19 determined in a different fashion means we 20 would go back and revisit, that's the 21 outstanding issue. It's renewed and, again, 22 this one is decided, that renewal is subject to 23 whatever that determination was. Assume that 24 determination was that MGM is qualified, then 25 you just check it off. But that's how we would 65 ITEM NO. 13 1 proceed. That's my suggestion. 2 COMMISSIONER SOMMELING: Mr. O'Gara, I 3 have a question. This isn't exactly like the 4 Bally case because we're dealing with an entity 5 that is in another jurisdiction in another part 6 of the world, Macau, and principals that are 7 over in another part of the world, the Hos. 8 And I think the Division has done a diligent 9 investigation with respect to that, and that 10 the hearing of those matters will be presented 11 to the Commission. We might weigh in what it 12 is exactly constitutes eligibility or 13 ineligibility for licensing by MGM Mirage as a 14 partner to Boyd. And I think that it would -- 15 it makes it much more complicated for us to 16 just make it a fast process. Because I don't 17 think it's going to be a fast process. 18 But I do think we have a reasonable 19 amount of time between now and the licensing of 20 it in 2000 -- June of 2010 to put everything 21 together is, I think, the principals in this 22 matter should be able to put everything 23 together. But I believe -- I have sincere 24 feeling that we should hear all the parties and 25 have all the facts and be able to make the 66 ITEM NO. 13 1 determination subject to or post-testimony with 2 regard to the licensing issues. 3 MR. O'GARA: Well, certainly. I mean, I 4 suggest to you -- 5 COMMISSIONER SOMMELING: I mean, do you 6 know where I'm coming from? 7 MR. O'GARA: Yeah. I was in Bally/FLAG 8 and there were people who thought that what was 9 going on in Florida was a foreign country at 10 that time so -- 11 (Laughter.) 12 COMMISSIONER SOMMELING: Yeah. I can 13 appreciate that, too. And I don't think it's 14 quite the same. I think we would be remiss if 15 we looked at it exactly that way. 16 MR. O'GARA: Certainly, my belief is -- 17 and, again, subject to, you know, your counsel 18 advised me, I believe if you simply sat still 19 and do nothing and everyone files the required 20 documents that are necessary to renew this 21 license, and, in fact, because it isn't -- a 22 hearing is not scheduled, that that casino 23 license stays in full force and effect. I 24 believe that's the overlay of the 25 Administrative Procedure Act and, in fact, I 67 ITEM NO. 13 1 think it's the precedent that, although for a 2 short period of time, what happened in 2007 -- 3 2007? Is it that long ago? 2007 in December. 4 Seems like a hundred years to me, but, you 5 know, there was a four-day period, I think, 6 when we had the expiration. 7 CHAIR KASSEKERT: It is a short period 8 of time. 9 MR. O'GARA: And that license -- I 10 suggest to you the alternative because I say to 11 the Commissioner, I think the reason it was 12 done the way it was in Bally/FLAG was that 13 people aware of the same facts and 14 circumstances said, hold it. I don't know how 15 the APA would overlay on this thing because 16 it's, you know, a new qualification. But I 17 suggest to you, it's kind of a status you may 18 not want to pursue for three or four months or 19 maybe more than three or four days. 20 I mean, the unpredictability here is 21 what you said, Commissioner. I believe the 22 parties may want to and may have all the desire 23 in the world to have this matter concluded a 24 week from Thursday. I don't know, and from 25 what I read, there is some question in their 68 ITEM NO. 13 1 minds that that, in fact, is the case. And I'm 2 suggesting to you that it's appropriate now to 3 make provision if that's what happens so that 4 there is certainty with respect to everybody. 5 And particularly with respect to my clients, 6 who everyone concedes have nothing to do with 7 what the subject matter of this hearing is 8 about. They just have no relationship to it. 9 And it affords that protection by saying, 10 hey -- it's like we have a plan. You know, 11 it's putting that out into the marketplace is 12 what I'm suggesting to you. 13 COMMISSIONER SOMMELING: Well, it would 14 be all right. I mean, I'm not disagreeing with 15 some of the things that you're saying, but 16 there's a nine-month window between now and 17 June of 2010. 18 MR. O'GARA: Oh, I agree with you. But 19 there's lawyers involved. 20 (Laughter.) 21 COMMISSIONER SOMMELING: I agree with 22 that, too. 23 MR. O'GARA: I hate to say it, but it's 24 true. No. I concede. 25 And there -- I think I said when I was 69 ITEM NO. 13 1 speaking to the Chair, I said that, you know, 2 whether or not it's, you know -- ripe? Is that 3 the -- you know, I suggest you certainly, you 4 know, you can look at me and say, hey, nice 5 argument. You know, six and a half or 6 whatever, you know. And -- and but, yeah, come 7 back to me in four months. 8 (Laughter.) 9 MR. O'GARA: Thank you. 10 But the reality is that I say to you 11 it's appropriate now because there is a party 12 here which has nothing to do with this which 13 has an overhang. And that's kind of a market 14 word. Overhanging your stock in your debt. It 15 overhangs, because it's like, hey, we know you 16 guys aren't involved. But what happens if you 17 rub up against it? How is that going to be 18 resolved? Well, there's a likelihood this, 19 there's a likelihood that. Everything that we 20 just discussed are things that you can 21 rationally tell people out there. I'm 22 suggesting to you that if you select a path, it 23 gives some certainty and takes that overhang 24 away from my client. 25 And that's the very selfish reason that 70 ITEM NO. 13 1 I suggest it. 2 CHAIR KASSEKERT: Thank you. 3 Any other questions? 4 Mr. Casiello? 5 MR. CASIELLO: Thank you. 6 Certainly, I join in the remarks of Mr. 7 O'Gara. And I'll touch on it, and I won't 8 repeat everything he said, but let me touch on 9 a couple of things. 10 First of all, we certainly want this 11 matter resolved as quickly as possible. We 12 probably want it resolved more than anybody 13 else does because this matter has been hanging 14 over our heads since June of 2005. Okay? We 15 intend to work as expeditiously as possible to 16 get this resolved, but we do not control the 17 process. Okay? But we will work diligently to 18 get it done. 19 Secondly, to address your comments, 20 Chair, with respect to Bally/FLAG. There's a 21 difference between this matter and the 22 Bally/FLAG matter, but I don't think the 23 difference makes a difference. Okay? My focus 24 on the Bally/FLAG matter is not the reopening 25 but on what the Commission did the year before 71 ITEM NO. 13 1 in essentially saying that the a license can be 2 renewed subject to the outcome of a -- a 3 subsequent proceeding, subsequent 4 investigation. And we think that principle 5 stands regardless of whether it occurs in a 6 reopening or otherwise. And we are simply 7 looking to you today to confirm that that 8 principle still applies, okay? 9 And we are -- let me address that just 10 briefly. We're not asking you to rule 11 definitively one way or another today. We are 12 simply asking you to please exercise your 13 discretion and acknowledge that there are 14 alternatives as to how this matter can be 15 resolved with respect to the license renewal 16 coming up in June of 2010 if the parties are 17 not able to and you are not able to hold a 18 complete and full hearing before then. Okay? 19 Let me throw out a hypothetical to you, 20 okay? And I'm not suggesting that the Division 21 would do this. But what if the Division waited 22 until June of 2010 to issue its report on the 23 special investigation and then sought to reopen 24 the 2005 license renewal? Where would we be? 25 What if they wait until after the renewal 72 ITEM NO. 13 1 hearing was over but before the new license 2 started? Where would we be? There would be no 3 way for us to have a hearing in that short of 4 time to address these issues. 5 So I don't think the concept of the 6 ability of the Commission to condition a 7 license on some future suitability 8 investigation should be based on vagaries of 9 time. 10 Commission Epps, let me talk about -- 11 let me address some of the issues you raised. 12 We're really in uncharted waters to a 13 great extent here. Okay? And that is part of 14 our problem. We need a little bit of 15 certainty. Okay? It boggles my mind when I 16 think about, okay, this is the reopener of a 17 casino license that was issued in June of 2005, 18 and we have a renewal coming up in June of 19 2010, and I try to figure out what exactly is 20 going on here, and it's difficult to do that. 21 I think we have to look at this in very 22 practicable terms, and this ties into some of 23 the comments that Commissioner Sommeling was 24 making. While we want to get this case over 25 with as soon as possible, it is a big case. 73 ITEM NO. 13 1 The Division conducted a four-year 2 investigation. I have no idea how many 3 thousands of pages of documents we -- we have 4 to review, but there's a lot of. Okay? And we 5 are simply looking for the ability to exercise 6 our due process rights to a full and fair 7 hearing, and I don't think you want anything 8 less, either. Okay? 9 So I think we have to be practical about 10 this. I think in addition to you're having the 11 ability to condition the 2010 renewal on the 12 outcome of this hearing if it isn't over by 13 then, you also have the Administrative 14 Procedure Act, which clearly provides that if a 15 timely application to renew has been filed, and 16 I think back -- well, I guess we filed a timely 17 application to renew the 2005 license, okay? 18 The Commission shall not refuse to renew a 19 license until a hearing has been held. So and 20 that was the basis for allowing the Tropicana 21 license to continue four days beyond its term 22 as you, Chair, and the Commission talked about 23 before. So we think that's another 24 alternatives. 25 We're simply looking for you to confirm 74 ITEM NO. 13 1 these alternatives exist, not that you need to 2 decide today what those alternatives will apply 3 in the future, just that they are available to 4 us. 5 Thank you. 6 CHAIR KASSEKERT: Questions? 7 Commissioner Epps? 8 VICE CHAIR EPPS: My first question, I 9 guess, goes to a different issue, which is 10 tangential to this one, but that is if this 11 hearing proceeds past the term of the license, 12 is it any more -- is it a reopener anymore? 13 Because if the license expires, what are you 14 reopening? Which is kind of one of those 15 things that floats out there. It's like, 16 unless this is concluded in the pendency of the 17 license, what is the purpose of reopening a 18 license that has expired? 19 Which then creates the issue for me to 20 try to understand is, how do you renew a 21 license that may have been changed by an 22 outcome of a hearing that never got concluded 23 before that license ended? I just keep making 24 it more and more -- it makes my head hurt more. 25 MR. CASIELLO: I know. It confuses me, 75 ITEM NO. 13 1 too. And all I can say is a couple things. 2 One, if we look at this -- forget that it's a 3 reopener. Let's assume it's just a license 4 renewal. Because, really, that's what it is. 5 Okay? And if you didn't complete the hearing 6 on the license renewal prior to the expiration 7 date of the license you're seeking to renew the 8 Administrative Procedures Act says that the 9 license stays in effect until you hold your 10 hearing. Okay. 11 I understand -- okay, so we're keeping 12 the 20 -- the 2005 license in effect under the 13 APA, but then how do you renew the 2010? 14 Again, uncharted waters. We have to -- you 15 have to decide what the intent was. And, I 16 think, clearly the intent was not to allow, you 17 know, one license to lapse before you hold your 18 hearing. 19 The other point -- and this is -- 20 VICE CHAIR EPPS: Let me ask you a 21 question right there, then. So would then the 22 suggestion be the 2010 renewal hearing not 23 proceed because this matter has to be resolved 24 with respect to the 2005 license hearing? 25 Because it makes no sense to proceed in a new 76 ITEM NO. 13 1 matter until the old one is resolved. And I 2 know you don't want that result. So now you 3 guys are divergent. 4 MR. CASIELLO: No. I think it proceeds, 5 Commissioner. 6 MR. O'GARA: Yeah. 7 MR. CASIELLO: Again, there are 8 alternatives as to how to handle it. One 9 alternative -- 10 VICE CHAIR EPPS: Does -- let me ask you 11 a question. Does the existing matter become -- 12 no. Does it become a subject of the new 13 hearing? So are we talking about that 14 investigation in the new licensing hearing? 15 And in the reopener? So do we argue it in two 16 separate hearings? Because there's going to be 17 two separate hearings. There's going to be a 18 reopener hearing where this is the issue we're 19 debate. But assuming it continues into June on 20 Monday we're doing reopening hearing. On 21 Tuesday we're doing renewal hearing. Same -- I 22 mean different hearing. Do we have to then 23 discuss that issue in the renewal hearing? And 24 can we only discuss the stuff that has already 25 been testified in the renewal hearing -- how -- 77 ITEM NO. 13 1 they overlap. How could do we do that? 2 MR. O'GARA: Commissioner, can I make 3 a -- yeah. 4 VICE CHAIR EPPS: Or am I not making any 5 sense? 6 MR. O'GARA: No. I understand. What 7 you're suggesting is, you have got the '05 8 going on, the reopener, you're doing the 2010, 9 isn't that relevant, and shouldn't it be going 10 on simultaneously? And my suggestion to you is 11 that's what the specific relieve about the 12 renewal subject to. When you subject it to, 13 you affirmatively said, well, that 14 determination there that we're making will be 15 brought over here. We don't have to do it 16 twice. We'll take the determination from the 17 '05 reopener, and we'll bring it over here, and 18 it will be what we will utilize with respect to 19 that 2010 determination, whether it's been made 20 and it has to be revisited because of what we 21 did there, or whether it just has to be wrapped 22 up because of what we did there. 23 VICE CHAIR EPPS: So then, basically -- 24 not trying to oversimplify, what you're 25 suggesting is in 2010 we say, you're good 78 ITEM NO. 13 1 unless you're bad. 2 MR. O'GARA: No. What I'm saying to you 3 is I'm saying to you -- 4 VICE CHAIR EPPS: We find that you're 5 bad. 6 MR. O'GARA: The hypothetical is going 7 to be you're a good boy. You're good, MDDC. 8 You're good MGM, except for that other thing. 9 If that's good, you're good to go. And if it's 10 not, we're back. 11 MR. CASIELLO: And that's the Commission 12 did in the Bally matter subject to we find Park 13 Place Entertainment suitable as a holding 14 company of Bally's Park Place and GNOC, subject 15 to the outcome of the Division's investigation 16 and further proceedings. 17 Let me make one other comment on that, 18 too. And I, unfortunately, cannot give you -- 19 I cannot cite a precedent, but I can recall 20 license renewal, casino license renewal 21 proceedings, that were occurring while there 22 were DGE complaint cases proceeding pending 23 against a licensee. And the complaint cases 24 were serious. In the -- and I can recall the 25 Commission saying that, you know, the complaint 79 ITEM NO. 13 1 case is separate. We're renewing the license 2 subject to whatever happens in the complaint 3 case. In the Tropicana matter, you 4 consolidated the pending complaint case with 5 the license renewal. You didn't have to do 6 that. It could have proceeded separately. It 7 could have resulted in a basis -- and, 8 actually, it kind of did -- for revoking the 9 license. So I think there is other precedent 10 for doing things that way. 11 And, lastly, one other alternative, and 12 again, we're talking about alternatives and 13 possibilities, would be to say that the 2010 14 license renewal hearing, while it proceeds, is 15 still subject to the outcome of the 2005. 16 CHAIR KASSEKERT: Let -- you know, 17 let -- let me just ask, though, you know, this 18 is sort of different circumstances than the 19 complaints that the Division were pursuing in 20 Tropicana. This deals with a qualifier. I 21 mean, this is slightly different. Do you have 22 any precedent with respect to that particular 23 issue? 24 MR. CASIELLO: You know, I cannot give 25 you any hard precedent, Madame Chair. But I -- 80 ITEM NO. 13 1 my recollection is that there have been 2 complaints against casino licensees. 3 CHAIR KASSEKERT: In general. 4 MR. CASIELLO: Which have raised, you 5 know, suitability issues. 6 MR. O'GARA: Chair, one thing. 7 COMMISSIONER SOMMELING: Madame Chair? 8 MR. O'GARA: Obviously, Nick and I have 9 said the same thing, perhaps him more 10 articulately than I did but, with one 11 exception, which is that Nick says that he 12 would like you to say that these alternatives 13 are there and they're out there, and they give 14 us some comfort, and I would agree. I would 15 reach further and suggest to you that the 16 appropriate thing for you is to say that this 17 is the one that is appropriate to do because 18 I -- I look to remove that overhang, and I'm 19 kind of the person who's at the party but 20 didn't really have an invitation and suggest 21 that's appropriate because it then gives some 22 kind of certainty, saying, look we don't know 23 if we're going to have to, but if we get here, 24 this is the path we'll follow, so don't be 25 worried. That's what I'm looking for in that. 81 ITEM NO. 13 1 MR. CASIELLO: And I don't think we 2 really disagree on that. We filed a petition 3 specifically, you know, seeking a ruling on 4 this point. 5 CHAIR KASSEKERT: Uh-hum. 6 MR. CASIELLO: We would like to be a 7 good partner and get Mr. O'Gara whatever he 8 wants. 9 (Laughter.) 10 CHAIR KASSEKERT: Commissioner 11 Sommeling? 12 MR. O'GARA: Oh, I have a list. 13 (Laughter.) 14 COMMISSIONER SOMMELING: Mr. Casiello, I 15 want to pursue this a little bidder further, 16 particularly with respect to what Commissioner 17 Epps was inquiring about. 18 Now, there's a dual process going on 19 here because we have an existing license, a 20 licensed facility has been -- the license has 21 been reopened to be re-examined with respect to 22 its qualifier, MGM Mirage, due to the fact that 23 the Division has uncovered certain information 24 which will come forth in the process as to 25 whether or not they should remain in that 82 ITEM NO. 13 1 position, as a qualifier and partnering up with 2 Boyd Gaming. 3 So that issue has got to be resolved. 4 So you have nine months. That is, Boyd Gaming 5 has nine months before their license is renewed 6 for the next five years. In the meantime, like 7 you pointed out rightfully, we've got this 8 other reopener, as you call it. But it is 9 really the existing license which will stay in 10 existence only if Boyd continues to meet the 11 qualifications of that license, which then is 12 predicated upon whether or not MGM Mirage is 13 found suitable with respect to staying on board 14 as a qualifier in partners with Boyd Gaming if 15 that should occur. 16 Now, it sounds very easy, but this is a 17 much more complicated matter in that if it 18 should turn out that way, that first of all, we 19 got to consider are we going to allow Boyd 20 Gaming to be -- to remain licensed, depending 21 what it and MGM Mirage does? And if not, then 22 what is going to be the procedure to keep them 23 licensed? I mean, how is that very complicated 24 solution going to be resolved? 25 In the meantime, they've got -- in the 83 ITEM NO. 13 1 meantime, they've got to reapply or apply for 2 their license in 2010 for the next five years 3 for Boyd Gaming. I mean, it's -- I think 4 there's a lot more to be considered. It's not 5 just resolving a simplified answer. 6 MR. CASIELLO: I think the -- 7 COMMISSIONER SOMMELING: I don't know 8 what the precedent is prior to this. 9 MR. CASIELLO: I think the complexity of 10 your questions demonstrates the complexity of 11 the issue. And I think that that's one of the 12 reasons we are looking for some certainty from 13 you, and we want to try to obtain that 14 certainty for the public at large as well. 15 That's why one way of putting it is we're 16 looking for confirmation that if this matter is 17 not resolved by the time the license expires 18 June 30th, 2010, the Commission can still renew 19 the Borgata license for a term commencing July 20 1, 2010, subject to the outcome of the hearing 21 on the reopener. 22 CHAIR KASSEKERT: Mr. Casiello, I'd like 23 to hear, I guess, from you and Mr. O'Gara with 24 respect to the one portion of your petition 25 which asks that this hearing be conducted in a 84 ITEM NO. 13 1 manner that's not likely to disrupt the 2 Borgata's casino operations, which is, you 3 know, a pretty broad statement. Can you give 4 us any clarification as to what exactly you're 5 seeking? 6 MR. O'GARA: I know what I meant when I 7 signed it. 8 CHAIR KASSEKERT: Okay. 9 MR. O'GARA: Okay. And I -- this is 10 good. Okay. You guys signed this thing. Now 11 what did you mean? 12 That -- what I meant was what we've just 13 addressed, that the hearing -- that there be 14 some certainty that the hearing, whether it 15 starts tomorrow or it starts in April of 2010, 16 that it will proceed in whatever fashion the 17 Commission determines and that that renewal 18 process will proceed, or that certainty as to 19 the continued operations, either through, as I 20 say, I think the lesser of the -- least -- the 21 not as desirable option of APA or through your 22 determination that it could be subject to. I 23 don't suggest -- I -- certainly in no way does 24 it suggest that a hearing on these issues is 25 disruptive to anything. It is the kind of 85 ITEM NO. 13 1 overlay of the timing of the hearing against 2 the timing of the renewal is what's meant by 3 "disruption." 4 CHAIR KASSEKERT: Okay. 5 MR. O'GARA: The hearing would in no way 6 be disruptive, in my view. 7 CHAIR KASSEKERT: Okay. Any other 8 questions? 9 Commissioner Epps? 10 COMMISSIONER SOMMELING: Just one other 11 thing, Madame Chair. 12 CHAIR KASSEKERT: Sure. Commissioner 13 Sommeling. 14 COMMISSIONER SOMMELING: What is to 15 preclude if, for some reason, during the 16 hearing process we need more time, and then we 17 give more time, and then something else comes 18 up from the Division. Now we need more time. 19 We extend it another 30 days, another 60 days, 20 another whatever? I mean, how far beyond what 21 is supposed to be done in terms of licensing 22 can we go? 23 MR. O'GARA: Infinity. 24 CHAIR KASSEKERT: Right. 25 MR. O'GARA: Infinity. 86 ITEM NO. 13 1 (Laughter.) 2 CHAIR KASSEKERT: Exactly. Little 3 rhetorical. 4 COMMISSIONER SOMMELING: No disrespect 5 and not taking into consideration what you're 6 saying and offering. But, I mean, we have a 7 mandate that says a license as to be renewed in 8 a certain time frame. There's been some -- 9 MR. O'GARA: Yeah. I -- and that's why 10 you would, I think -- I think the answer to 11 that, Commissioner Sommeling, isn't necessarily 12 an answer that you find in the words of the 13 statute. It's in -- your -- as you view your 14 obligation as the Commission to say, all right. 15 We're not going to start this thing in April of 16 2010. We know that there are issues. We're 17 going to try to move these. And if you see it, 18 and you say, look, we're going to do it. It's 19 conditioned on this, you say, and it will be 20 concluded by -- you make every effort to get it 21 concluded so that you avoid those issues. 22 That's more an issue of how you exercise your 23 authority and discretion than it is under the 24 statute. I think the statute actually does -- 25 the APA seems to imply that it is infinite, 87 ITEM NO. 13 1 until there is such a hearing, it goes on. Not 2 in the casino licensing milieu, but in the 3 licensing milieu of alcoholic beverage licenses 4 and things over at the BPU. You say, how long? 5 Three, four, five years it goes on sometimes. 6 You know, if you start a hearing on a nuclear 7 power plant, they don't shut 'em down. They 8 keep going. You know -- yeah. And but I don't 9 think that -- your licensing is different and 10 your standard is different. 11 CHAIR KASSEKERT: Uh-hum. 12 MR. O'GARA: But the APA is more 13 generically to apply to all kinds of licenses, 14 even including things we may view as kind of de 15 minimis licenses, but it applies the same 16 standard to all of them. 17 MR. CASIELLO: And I certainly don't 18 disagree with that, Commissioner, but I want to 19 make the point that it's important that there 20 be a full hearing on this matter. And if that 21 means that a hearing date is set and has to be 22 extended for some reason in order to give us a 23 full hearing, I think we're entitled to that. 24 CHAIR KASSEKERT: All right. Let's hear 25 from the Division? 88 ITEM NO. 13 1 MR. ROVER: Well, after listening to 2 these high-priced lawyers, and we still don't 3 have an answer. It clearly is an unusual 4 situation. But I think if you really simplify 5 the timing issue -- Commissioner Epps in 6 particular -- had circumstances required that 7 the Division file its report in March of 2010, 8 clearly the hearing could not have been held 9 before the June 2010 renewal. Okay? So that 10 would have been the reality of it. It could 11 have happened. A couple other things could 12 have happened in the investigation that 13 required us to work on it even longer. 14 With that reality, your question, 15 Commissioner Epps, is are we reopening a 16 license that we haven't even renewed yet? And 17 I think what everyone seems to be forgetting 18 here is that there's a lot more to MGM than 19 just this case. We would be reporting on many, 20 many other issues involving MGM at the renewal. 21 Mr. Fogarty is in charge of that. He's gone, 22 as usual. 23 (Laughter.) 24 MR. ROVER: But then, again, we're 25 approaching -- we're approaching this argument 89 ITEM NO. 13 1 as if this is all that we have to do with MGM, 2 and that's not true. There would be a whole 3 hearing -- on all aspects of MGM MIRAGE's 4 business. So the point would be is it 5 desirable to have the 2010 license subject to a 6 good character, honesty, and integrity 7 reservation regarding the qualifications of MGM 8 Mirage? The answer is no. That's not what we 9 really want. Can the Commission do it? Yes. 10 It's something that you don't want to do. You 11 want to limit as often as possible. 12 But circumstances -- as I said, we could 13 have filed this report in March of '010. You 14 would have had no choice but to figure out a 15 way to that make that happen. 16 Having said that, the Division is 17 prepared to move expeditiously and do whatever 18 is necessary to have this thing heard, this 19 matter heard, prior to the June 2010 renewal. 20 And, again, I do think the Bally/FLAG precedent 21 is not on point. I agree with all the 22 Commissioners, and I think all the attorneys 23 also agree. However, I do think that the 24 principle that underlines the Bally/FLAG 25 opinion with respect to the "subject to" 90 ITEM NO. 13 1 language is applicable here and allows the 2 Commission, if it so desires, it gives them 3 that out to say the hearing cannot be concluded 4 in time. It is not ripe yet. We will address 5 all other issues related to MGM Mirage. We 6 will report on those issues. And we're going 7 to make it very clear in bold print that in the 8 very near future, there will be a hearing on 9 the Macau matter. And then we will -- if we 10 have to revisit the MDDC license at that time, 11 based upon our findings in that matter, we will 12 do it. 13 I think -- I just would like to address 14 the scope issue. 15 CHAIR KASSEKERT: Uh-hum. 16 MR. ROVER: For one moment. I think 17 it's important for the Division to be on record 18 as saying that it has no information that Boyd 19 Gaming Corporation or that the MDDC license 20 itself had any involvement in the MGM MIRAGE's 21 Macau activities. And I think it's important 22 that we go on record of saying that. So I just 23 think that needs to be out there. I'll answer 24 any questions you have. 25 CHAIR KASSEKERT: Questions? 91 ITEM NO. 13 1 Commissioner Epps? 2 VICE CHAIR EPPS: Why didn't we hold 3 this and make it part of the 2010 hearing as 4 opposed to reopening 2005 so close up against 5 2010? 6 MR. ROVER: Okay. Good question. 7 The Division reports when it's done with 8 its investigation and when you start holding 9 reports, one could argue that it would have 10 been worse for the licensees to have this 11 dropped on them on the eve of a renewal which 12 might have thrown everything in turmoil, 13 created a lot more negative publicity for the 14 license. And we just felt we're done with our 15 investigation. When we are done with our 16 investigation, we should report it. 17 That's not to say, possibly, if we were 18 done with our investigation in April of 2010, 19 we might have considered saying, maybe we'll 20 wait an extra month since the renewal is coming 21 up, and we'll fold it into that. But given the 22 fact that the renewal is quite a while away, 23 more than a year, our general policy is when 24 we're done with an investigation, it's 25 appropriate for us to report. 92 ITEM NO. 13 1 VICE CHAIR EPPS: Okay. 2 CHAIR KASSEKERT: Commissioner 3 Sommeling? 4 COMMISSIONER SOMMELING: Mr. Rover, I 5 guess, because the results of the 6 investigation -- and it was a lengthy 7 investigation; correct? 8 MR. ROVER: Correct. 9 COMMISSIONER SOMMELING: That the 10 Division became concerned that rather than 11 wait, as you had just pointed out, the 12 appropriate thing to do, which is the 13 expeditious thing to do, to bring it to the 14 fore was that there was some serious questions 15 with regard to MGM Mirage and Macau regarding 16 the existing license and them being a qualifier 17 with Boyd Gaming. And so that was -- that kind 18 of set the stage for your -- for your request, 19 and the Division can do this at will, to ask 20 the Commission to reopen the license hearing 21 for the current license. 22 MR. ROVER: Correct. 23 COMMISSIONER SOMMELING: So I'm assuming 24 now, that the way it was done that if you 25 believe that you may be able to conclude the 93 ITEM NO. 13 1 questions about the existing situation with 2 regard to the license that's current before we 3 move on to the new license in 2010? 4 MR. ROVER: Well, I think the position 5 that the Division is, after reviewing all of 6 the information that we gathered and after 7 reviewing our report, the allegations and 8 issues that we raised in the report went 9 directly to MGM's qualifications/licensing 10 criteria. And when you have an issue like 11 that, which was similar to Bally/FLAG, when it 12 goes to licensing criteria, it is appropriate 13 at that point to say, that triggers a license 14 reopening. Because, again, it goes to good 15 character, honesty, and integrity. So we would 16 normally, in those cases, say whenever -- 17 whenever it occurs, we would say we think we 18 need to reopen the license for this because 19 this is a very serious matter. 20 COMMISSIONER SOMMELING: Thank you. 21 CHAIR KASSEKERT: Mr. Rover, what -- do 22 you have any comments with respect to Mr. 23 Casiello and Mr. O'Gara's arguments about the 24 APA and the difference in licensure of what 25 we're looking at here versus what other 94 ITEM NO. 13 1 licensing matters deal with? 2 MR. ROVER: Again, I can't think of any 3 other precedent. I mean, Nick's a lot older 4 than me, so he would know better than I. 5 (Laughter.) 6 CHAIR KASSEKERT: You'd be surprised. 7 MR. ROVER: But I am not aware of any 8 other precedent. But, again, it would be 9 completely contrary to the spirit of the APA to 10 suggest that somehow -- 11 CHAIR KASSEKERT: Uh-hum. 12 MR. ROVER: The license would somehow -- 13 CHAIR KASSEKERT: Just -- 14 MR. ROVER: -- extinguish. And, again, 15 not to beat a dead horse, I go back to the fact 16 that if we did file this in March of 2010, 17 clearly, you would have some legal basis -- 18 CHAIR KASSEKERT: Sure. 19 MR. ROVER: -- in which to say we're 20 going to get this thing heard, but it doesn't 21 mean that the MDDC license is going to go 22 away -- 23 CHAIR KASSEKERT: Uh-hum. 24 MR. ROVER: -- simply because it's a 25 reopener based upon a renewal. 95 ITEM NO. 13 1 CHAIR KASSEKERT: Uh-hum. 2 Any more questions? 3 COMMISSIONER SOMMELING: No questions, 4 Madame Chair. 5 CHAIR KASSEKERT: All right. I think we 6 will take a brief recess. Thank you. 7 (A recess was taken from 12:13 to 2:42 8 p.m.) 9 CHAIR KASSEKERT: We're back on the 10 record. 11 Let me ask if any of the Commissioners 12 have any other questions? 13 COMMISSIONER SOMMELING: No questions, 14 Madame Chair. 15 CHAIR KASSEKERT: No questions? 16 Are there any other procedural matters 17 that need to be brought to our attention at 18 this time? 19 MR. O'GARA: No, ma'am. 20 MR. CASIELLO: No, Madame Chair. 21 MR. ROVER: No. 22 CHAIR KASSEKERT: Very good. 23 The Division's special report raises 24 issues only regarding MGM and its joint venture 25 with Pansy Ho in Macau. Thus, I am prepared to 96 ITEM NO. 13 1 recommend that the Commission rule that the 2 reopening hearing is for the exclusive purpose 3 of considering the qualification of MGM MIRAGE 4 as a holding company of Borgata in light of the 5 matters raised in the special report. 6 The second request for declaratory 7 relief, namely that the qualification of Boyd 8 not at issue in the reopened casino relicense 9 hearing, in my view, may also be granted. The 10 Division effectively consents to this grant of 11 relief, noting that its special report 12 indicates that Boyd had no involvement in MGM's 13 venture in Macau. 14 Of course, a necessary caveat to 15 granting these first two requests for 16 declaratory relief is that they are based on 17 information currently available to the 18 Commission. Should any contradictory 19 information be revealed prior to or during the 20 reopening proceeding that causes further review 21 of the issues or the parties involved, the 22 Commission may need to revisit these rulings. 23 As for the joint Petitioners' third 24 request for declaratory ruling that the 25 reopened license hearing will be conducted in a 97 ITEM NO. 13 1 manner that will not disrupt service or 2 otherwise adversely impact operations at 3 Borgata, that simply is a matter beyond the 4 Commission's purview, even in light of 5 counsels' efforts today to explain and define 6 what's been sought. While presumably the 7 casino license reopening hearing will draw 8 public notoriety, it is impossible for the 9 Commission to control the effects such 10 publicity may have. The requested relief 11 remains over broad, and, as explained by Mr. 12 O'Gara, is simply a restatement of the relief 13 sought in the Joint Petition's Count Two. 14 Thus, in my view, the Commission should deny 15 the request for such ruling at this time. 16 The crucial issue raised in the Joint 17 Petition concerns what happens if the issues as 18 to MGM's continuing qualification raised by the 19 special report are not resolved by the time the 20 Borgata's casino license expiration date of 21 June 30th, 2010? As I indicated earlier, 22 whether to grant a declaratory ruling is left 23 to the Commission's sound discretion. A 24 salient fact, unknown at this time, is how far 25 the reopening hearing will have progressed by 98 ITEM NO. 13 1 the time the Borgata applies for renewal and 2 thereafter commences that renewal hearing. A 3 reopening hearing that is on the verge of 4 concluding may be materially different from one 5 that has yet to commence because it is mired in 6 procedural skirmishes over discovery or 7 otherwise. Thus it may have been helpful for 8 that record to have progressed further along 9 before calling upon us for a such a ruling. 10 In the my view, the Commission has 11 fairly consistently read the Act, in particular 12 Sections 80a, 85b(1), 88, and 90 -- 95, and the 13 Commission's regulations, especially NJAC 14 19:43-2.2, as requiring a casino licensee 15 seeking a license renewal to establish the 16 qualification of its -- of all of its necessary 17 individuals and entities in order to obtain a 18 renewal of its license. Joint Petitioners 19 essentially propose that -- instead that, 20 assuming the only outstanding issue at next 21 year's Borgata license hearing concerns the 22 matters raised in the Division's special 23 report, we renew the Borgata license subject to 24 the eventual disposition of those matters being 25 addressed in the reopening hearing. For me, 99 ITEM NO. 13 1 the requested relief is premature under the 2 current circumstances. If granted, the pending 3 request might be viewed as allowing the 4 reopening proceedings, and essentially the term 5 of Borgata's current license, to potentially 6 extend well past the license renewal date, 7 whereas Section 95 of the Act, when vesting the 8 Commission with the authority to "extend the 9 period of any such license" may explain that 10 such authority is for "other than a casino 11 license." 12 In support of their argument, Joint 13 Petitioners call the Commission's attention to 14 its 1999 decision on the reopened casino 15 license of Bally's Park Place and GNOC Corp., 16 called the "Bally/FLAG" matter. 17 In Bally/FLAG the Commission was faced 18 with a qualification hearing for Park Place 19 Entertainment, a New Jersey -- a new holding 20 company of New Jersey casino licensee, Bally's, 21 and the Atlantic City Hilton. At the time of 22 the hearing, the Division notified the 23 Commission it was investigating the activities 24 in Florida of a Political Action Committee 25 affiliated with Bally's and a consulting 100 ITEM NO. 13 1 arrangement with a Florida legislator 2 associated with those activities. 3 Since the investigation was not 4 completed at the time of the qualification 5 hearing, the Commission qualified the new 6 holding company subject to such further review 7 as may be required. Although finding that Park 8 Place Entertainment's good character was 9 subject to further events, essentially, the 10 Commission in that matter merely restated its 11 authority to reopen the casino license 12 proceedings if needed under Subsection 88a. 13 Joint Petitioners argue that the 14 "subject to" ruling made in Bally/FLAG should 15 be applied to this case, even though here the 16 Division's investigation is completed and in 17 Bally/FLAG it was not. In my view, that is a 18 critical distinction. Regulatory purposes 19 would have been ill-served and any ruling 20 premature, if in Bally/FLAG the Division was 21 not afforded the opportunity to complete its 22 investigation. However, where, as here, that 23 investigation is complete and the Division has 24 reported, regulatory purposes would be equally 25 ill-served if the matter is not resolved within 101 ITEM NO. 13 1 the time constraints allowed by law. 2 The Joint Petitioners also argue that 3 because the reopening hearing will involve a 4 lengthy period of discovery and because they 5 need adequate time to prepare their case, due 6 process and fundamental fairness dictate that 7 the Borgata 2010 license renewal should not be 8 affected if the opening hearing is not resolved 9 by June of 2010. 10 We are mindful of the complexity of this 11 matter, which is the culmination of a lengthy 12 investigation conducted by the Division. 13 However, even given the complex issues 14 involved, the expiration date is just over nine 15 months from today's hearing. That seems to be 16 ample time in which to resolve the reopened 17 casino license hearing for the purposes of 18 considering MGM's continuing qualification. 19 As matters progress, I believe that we 20 can revisit the provisions of the Act mentioned 21 earlier, in light of the arguments under the 22 APA, but any reliance on those provisions is 23 now not yet ripe. 24 It is notable that in Subsection 88b, 25 the legislature required that an application 102 ITEM NO. 13 1 for renewal be submitted no later than 120 days 2 prior to the expiration of the current license. 3 With such a timetable, the legislature 4 seemingly has contemplated that any renewal 5 issues that may arise would be amenable to the 6 resolution within that 120-day period. Since, 7 in this matter, the parties -- and since, in 8 this matter, the parties are aware of renewal 9 issues relating to MGM well in advance of that 10 four-month window, there is sufficient time for 11 the reopening hearing to proceed and conclude 12 by the June 2010 expiration date. 13 Before making a motion, it bears 14 repeating that we are being asked today to 15 decide issues of procedure only, how the 16 reopening of the 2005 Borgata casino license 17 hearing will proceed, what will be the scope of 18 that hearing, and when it should occur. The 19 merits of whether MGM will be found qualified 20 to continue as a holding company of Borgata 21 remains for another day. That determination 22 will be made after the Commission hears the 23 case as presented by the MGM and the Division 24 at the reopening hearing, which is not yet 25 scheduled. 103 ITEM NO. 13 1 Similarly, neither I nor, I suspect, my 2 fellow Commissioners contemplate making a 3 determination today that will jeopardize the 4 continuing validity of Borgata's current casino 5 license. The renewal application for that 6 currently valid casino license is due by March 7 2nd, 2010, and the continuation of that 8 license, like all other licenses renewed upon 9 expiration of a five-year term, will be 10 determined at the appropriate time. 11 Accordingly, and consistent with my 12 remarks, I move that the Commission adopt the 13 proposed resolution and, as set forth in the 14 findings and rulings therein, grant, in part, 15 and deny, in part, the declaratory relief 16 sought in the Joint Petition, and I so move. 17 Is there a second? 18 VICE CHAIR EPPS: Second. 19 COMMISSIONER SOMMELING: Second. 20 CHAIR KASSEKERT: The motion has been 21 made and seconded. All in favor? 22 (Ayes.) 23 CHAIR KASSEKERT: Opposed? 24 (No response.) 25 CHAIR KASSEKERT: Motion carries. 104 1 Thank you. 2 MR. O'GARA: Thank you. 3 MR. CASIELLO: Thank you, Commissioners. 4 MR. NANCE: In accordance with 5 Resolution No. 08-12-10-22, the next closed 6 session of the Commission shall be held on 7 Wednesday, October 14th, 2009, at 9:15 a.m. in 8 the Commission offices. 9 It is now time for the public 10 participation portion of the meeting. 11 CHAIR KASSEKERT: Is there anyone from 12 the public who wishes to be heard? 13 (No response.) 14 CHAIR KASSEKERT: Seeing no one, I'll 15 declare this portion of the meeting closed and 16 entertain a motion to adjourn. 17 COMMISSIONER SOMMELING: Motion to 18 adjourn. 19 COMMISSIONER HARRINGTON: Second. 20 CHAIR KASSEKERT: Is there a second? 21 The motion has been made and seconded. 22 All in favor? 23 (Ayes.) 24 CHAIR KASSEKERT: Opposed? 25 (No response.) 105 1 CHAIR KASSEKERT: Motion carries. 2 (Public Meeting 09-09-22 was adjourned 3 at 2:53 p.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 106 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: September 24, 2009 23 My Notary Commission Expires July 22, 2014 24 ID No 2062871 25