IN THE MATTER OF THE APPLICATION OF JESUS GUADALUPE FOR A NEW JERSEY JOCKEY LICENSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0820-07T30820-07T3

IN THE MATTER OF THE APPLICATION

OF JESUS GUADALUPE FOR A NEW

JERSEY JOCKEY LICENSE,

Appellant.

______________________________________

 

Argued October 2, 2008 - Decided

Before Judges Lyons and Waugh.

On appeal from a Final Decision of the New Jersey Racing Commission.

Jeffrey R. Pocaro argued the cause for appellant.

Julie D. Barnes, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Barnes, on the brief).

PER CURIAM

Jesus Guadalupe, a jockey, appeals from a Final Administration action of the New Jersey Racing Commission (Commission), denying his application for a jockey license. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Guadalupe was a licensed thoroughbred jockey in New Jersey prior to May 1977. In May 1977, he was charged in a criminal indictment with race-fixing in New Jersey during the period between December 1, 1974 and May 27, 1975. At the time of his indictment, he was twenty-six years old. As a result of that indictment, the Commission suspended his license pending the outcome of the grand jury indictment. Guadalupe was found guilty, following a criminal jury trial, for conspiracy to prearrange results of a horse race, as well as aiding and abetting to prearrange the results of a horse race. He was sentenced in April 1979 to an indeterminate period not to exceed eighteen months at the Youth Correctional Institution Complex. Following the denial of Guadalupe's appeal, he served out his sentence.

On March 21, 1985, the Commission issued a ruling providing that the indefinite suspension earlier ordered by it with respect to Guadalupe was terminated and he was declared ineligible for licensure in New Jersey in any capacity. The ruling went on to state "[t]he terms of this ruling are not to prejudice Mr. Guadalupe's ability to make further application for licensure in New Jersey in the future."

In 1986, Mr. Guadalupe applied to become a jockey in his native Puerto Rico and his application was granted. In 1986, Guadalupe also renewed his efforts to be re-licensed in New Jersey by the Commission. The Commission then declined to do so. Since 1986, Guadalupe has ridden horses in Puerto Rico without incident, according to racing officials there who wrote letters of recommendation on his behalf to the Commission.

In October 2005, Guadalupe again renewed his efforts to be restored to good standing in New Jersey and receive a jockey license. On February 2, 2006, the Commission determined not to restore Guadalupe to good standing.

In February and March 2006, Guadalupe requested reconsideration of the matter. The Commission scheduled a hearing for July 19, 2006. At that hearing, Guadalupe spoke briefly and apologized for what had happened almost thirty years earlier. He requested a second chance. Guadalupe's attorney then asked the Commission to defer a decision regarding Guadalupe's license application to permit him to apply for an expungement of Guadalupe's race-fixing conviction. That request was granted.

Guadalupe's attorney then filed for an order to expunge and received same in November 2006. In December 2006, Guadalupe then applied to the Commission for a jockey license. Guadalupe sought the restoration of his license pursuant to the Rehabilitated Convicted Offenders Act, N.J.S.A. 2A:168A-1 to -6, (RCOA). Accompanying the application were letters of recommendation from racing officials in Puerto Rico, as well as other recommendations from parties associated with racing.

On June 20, 2007, the Commission met and decided not to grant a jockey license to Guadalupe. An application for reconsideration was filed. On August 22, 2007, the Commission met and voted on the application for reconsideration. The Commission voted to deny the motion for reconsideration. On September 4, 2007, the Commission issued its final decision and order in this matter and this appeal ensued.

On appeal, Guadalupe presents the following argument for our consideration:

POINT I:

THE NEW JERSEY RACING COMMISSION FAILED IN ITS WEAK ATTEMPT TO COMPLY WITH THE REHABILITATED CONVICTED OFFENDER'S [SIC] ACT ("RCOA") N.J.S.A. 2A:168A-1 et. seq. AND ITS ABJECT FAILURE TO GRANT THE LICENSE APPLICATION WAS THEREFORE IMPROPER.

Guadalupe argues that the Commission failed to comply with the terms of the RCOA by not properly reviewing and explaining in writing how the eight factors set forth in N.J.S.A. 2A:168A-2 relate to Guadalupe's application. The applicant claims "the NJRC must complete an RCOA scorecard, with pluses and minuses. NJRC missed the mark in this instant matter, where the pluses significantly outweigh the minuses and the license application should have been granted." The applicant argues that pursuant to the RCOA, the Commission was required to review each of the eight factors in the statute and determine whether the analysis of each factor resulted in a plus or minus. The Commission, according to Guadalupe, should then have totaled the pluses and minuses and determined that the pluses significantly outweighed the minuses and the license should have been granted.

The Commission does not agree with Guadalupe's analysis and argues that the denial was not arbitrary, capricious, or unreasonable and was supported by substantial credible evidence in the record as a whole. The Commission also argues that the written decision of the Commission adequately reviewed and weighed each of the factors set forth in N.J.S.A. 2A:168A-2.

The standard of review in cases such as this is clear:

[O]ur role in reviewing the Commission's findings in a case of this kind is to determine "whether the findings could reasonably have been reached on sufficient credible evidence present in the record, considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise is a pertinent factor."

[De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 489 (App. Div. 1987), certif. denied, 102 N.J. 337 (1985) (quoting

Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973)).]

While we respect an agency's expertise, ultimately the interpretation of statutes is a judicial, and not an administrative function, and we are, therefore, in no way bound by the agency's interpretation of a statute such as the RCOA. Mayflower Sec. Co., supra, 64 N.J. at 93 (1973).

We note at the outset that the Commission was established by the Legislature to regulate the operation of horse racing in New Jersey. See N.J.S.A. 5:5-22 to 126.

The Legislature has vested the Commission with broad powers "necessary or proper to enable it to carry out fully and effectually all the provisions and purposes of this act." N.J.S.A. 5:5-22. The Commission has also been granted power to . . . license trainers and other persons. . . . And it has been granted the specific power to "revoke or refuse to issue a license if in the opinion of the Commission . . . the

. . . [refusal to issue such license] is in the public interest." N.J.S.A. 5:5-33.

[Dare v. State, 159 N.J. Super. 533, 537 (App. Div. 1978).]

N.J.S.A. 5:5-34 provides in pertinent part that "[n]o person shall be licensed in any capacity whatsoever by the Racing Commission . . . who has been convicted of a crime involving moral turpitude."

The applicant in the instant case has had his earlier conviction for race-fixing expunged. The expungement, however, does not reach to the Commission's records. See E.A. v. New Jersey Real Estate Comm'n, 208 N.J. Super. 65 (App. Div. 1986), certif. denied, 104 N.J. 415 (1986).

However, the dictates of the RCOA do apply to the Commission. Maietta v. New Jersey Racing Comm'n, 93 N.J. 1, 2 (1983). The Commission, therefore, when presented with Guadalupe's application, was required to review the RCOA as it applies to Guadalupe.

N.J.S.A. 2A:168A-2, which codifies section two of the RCOA, provides in pertinent part that the Commission may not:

disqualify or discriminate against an applicant for a license . . . on the grounds that the applicant has been convicted of a crime . . . except that [the Commission] may disqualify or discriminate against an applicant for a license . . . if a conviction for a crime relates adversely to the occupation, trade, vocation, profession, or business for which the license or certificate is sought.

The RCOA goes on to say that:

[i]n determining that a conviction for a crime relates adversely to the occupation, trade, vocation, profession or business, the licensing authority shall explain in writing how the following factors, or any other factors, relate to the license or certificate sought:

a. The nature and duties of the occupation, trade, vocation, profession or business, a license or certificate for which the person is applying;

b. Nature and seriousness of the crime;

c. Circumstances under which the crime occurred;

d. Date of the crime;

e. Age of the person when the crime was committed;

f. Whether the crime was an isolated or repeated incident;

g. Social conditions which may have contributed to the crime;

h. Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have or have had the applicant under their supervision.

[N.J.S.A. 2A-168A-2.]

At the outset, we note that we do not agree with applicant's interpretation of how the factors are to be weighed in this case. The factors listed in the statute are just that - factors - points to be considered by the Commission. The statute itself notes that these factors are not exclusive, as the statute permits other factors to be considered, not merely those listed in a through h. The statute does not call for a mechanical tabulation of each of the factors to arrive at a decision. In fact, some of the factors do not lend themselves to a "plus" or "minus" resolution. We do not review the factors as discrete and separate. Rather, we see them overlapping with each other to provide a comprehensive picture of the situation so that the Commission can determine whether the crime at issue in a particular case relates adversely to the occupation for which a license is sought.

While the Commission did not set forth each factor and follow that with a detailed discussion of each, its written resolution of the matter touched on all of the factors set forth in the RCOA. It is clear that it identified the nature and duties of a jockey, the nature and seriousness of the crime at issue, and the circumstances under which it occurred. The date of the crime and the age of the person when the crime was committed are also in the record. The indictment indicated that the crime involved a number of acts over a period of time and did not constitute one act standing alone. While there is not a discussion of the "social conditions which may have contributed to the crime," nothing was submitted by the applicant that would have touched on that. N.J.S.A. 2A-168A-2(g).

Clearly, the applicant set forth extensive information on his rehabilitation. However, that standing alone does not require the Commission to issue the license. We are satisfied that the Commission, after weighing all of the factors required by the statute, was rightfully concerned with the need to preserve the integrity of horse racing in New Jersey and the confidence of the public in the participants.

Prohibiting and preventing the fixing of horse races goes to the very core of the Commission's duties. It must ensure the public that the horse races in New Jersey are fair and its participants above reproach. While Guadalupe may have led an unblemished career in Puerto Rico later in life, the Commission was rightfully concerned with permitting him, given the nature of his offense, to be re-licensed in New Jersey. Race-fixing is a direct assault on the integrity of the sport and seriously undermines the confidence of the public. It clearly relates adversely to the occupation of a jockey. As stated in Martin v. Monmouth Park Jockey Club:

[i]n a sport [horse racing] where the greatest importance should attach to dissipating any cloud of association with the undesirable, and in which the appearance as well as the fact of complete integrity is of paramount consideration, to exclude plaintiff [a jockey] from riding because of his record [placing a bet on a horse racing against one he was riding] was an understandably warranted exercise of discretion."

[145 F. Supp. 439, 441 (D.N.J. 1956), aff'd, 242 F.2d 344 (3d Cir. 1957).]

We find that the decision of the Commission was not arbitrary, capricious, or unreasonable, was in accordance with the appropriate statute, and was supported by substantial credible evidence in the record as a whole.

Affirmed.

(continued)

(continued)

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A-0820-07T3

October 29, 2008