IN THE MATTER OF CHRISTIAN SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3648-08T13648-08T1

IN THE MATTER OF

CHRISTIAN SMITH

________________________________

 

Argued October 7, 2009 - Decided

Before Judges Graves and Sabatino.

On appeal from the Final Determination of the Waterfront Commission of New York Harbor, Case No. RL-5049.

George T. Taite argued the cause for appellant Christian Smith (DeLuca & Taite, attorneys; Samuel R. DeLuca, on the brief).

Eric B. Fields, Senior Attorney, argued the cause for respondent Waterfront Commission of New York Harbor (Michele Meyer-Shipp, General Counsel, attorney; Mr. Fields and Jason Szober, Assistant Counsel, on the brief).

PER CURIAM

After a hearing before an administrative law judge ("ALJ"), the Waterfront Commission of New York Harbor ("the Commission") revoked appellant Christian Smith's license to work as a longshoreman. This discipline was based upon three discrete grounds, one of which we conclude the Commission unduly relied upon in ordering revocation and in rejecting the ALJ's recommended lesser sanction of a six-month suspension. Consequently, we vacate the order of revocation and remand this matter to the Commission for reconsideration.

Appellant obtained his registration as a longshoreman in July 2000, pursuant to N.J.S.A. 32:23-27, making him eligible for employment in the Port of New York. The Commission is a bistate agency "entrusted [with] the safeguarding of the public interest on the New York Harbor waterfront." In re Application of Kaiser, 94 N.J. Super. 95, 99 (App. Div. 1967); see also N.J.S.A. 32:23-5. The Commission's historical oversight of longshoremen, stevedores, and other workers in the harbor is designed to eradicate "an unwholesome concentration of criminals on the waterfront." Kaiser, supra, 94 N.J. Super. at 99; see also Knoble v. Waterfront Comm'n of New York Harbor, 67 N.J. 427, 430 (1975); N.J.S.A. 32:23-2.

Registration may be denied by the Commission, in its discretion, on various grounds, including a finding that the applicant's "presence at the piers or other waterfront terminals in the Port of New York . . . [would] constitute a danger to the public peace or safety." N.J.S.A. 32:23-29. As part of its regulatory powers, the Commission has the authority under Section 31 of the statute to:

[R]eprimand any longshoreman . . . or to remove him from the longshoremen's register for such period of time as it deems in the public interest, for any of the following [specified] offenses:

(a) Conviction of a crime or other cause which would permit disqualification of such person from inclusion in the longshoremen's register upon original application;

(b) Fraud, deceit or misrepresentation in securing inclusion in the longshoremen's register;

(c) Transfer or surrender of possession to any person either temporarily or permanently of any card or other means of identification issued by the commission as evidence of inclusion in the longshoremen's register, without satisfactory explanation;

(d) False impersonation of another longshoreman registered under this article or of another person licensed under this compact;

(e) Wilful commission of or wilful attempt to commit at or on a waterfront terminal or adjacent highway any act of physical injury to any other person or of wilful damage to or misappropriation of any other person's property, unless justified or excused by law; and

(f) Any other offense described in subdivisions (c) to (f) inclusive of [N.J.S.A. 32:23-18].

[N.J.S.A. 32:23-31.]

Section 31's cross-reference to subsections (c) through (f) of Section 18 of the statute encompasses:

(c) Violation of any of the provisions of [the interstate] compact;

(d) Addiction to the use of or trafficking in morphine, opium, cocaine or other narcotic drug;

(e) Employing, hiring or procuring any person in violation of [the interstate] compact or inducing or otherwise aiding or abetting any person to violate the terms of [the interstate] compact; [or]

(f) Paying, giving, causing to be paid or given or offering to pay or give to any person any valuable consideration to induce such other person to violate any provision of [the interstate] compact or to induce any public officer, agent or employee to fail to perform his duty hereunder.

[N.J.S.A. 32:23-18(c)-(f).]

The Commission's discipline of appellant was precipitated by his arrest by Commission police on January 9, 2008 at the North East Auto Marine Terminal in Jersey City. At about 8:00 p.m. that evening, about two hours after appellant's shift had ended, plainclothes Detectives James Sutera and Wojciech Stobinski observed him standing at the terminal near an open gate and a timekeeper's shed. No ship was then in port and apparently no one else was present.

Detective Sutera approached appellant, who stated that he was waiting for his girlfriend to come pick him up. Meanwhile, Detective Stobinski parked the officers' patrol car, activated its strobe lights, and got out of the car wearing his raid jacket identifying himself as a police officer. Detective Stobinski then joined Detective Sutera.

The detectives requested appellant to present his identification. Declining to do so, appellant became hostile and began to curse at the detectives. Detective Stobinski noticed a strong odor of alcohol emanating from appellant, who appeared to be inebriated and unable to stand straight. In addition, the detectives saw several open containers of alcoholic beverages in the timekeeper's shed.

Appellant continued to act belligerently, and questioned the detectives' authority. At that point, the detectives handcuffed appellant. Appellant spat on Detective Stobinski's jacket.

The detectives placed appellant under arrest. He was subsequently charged in municipal court with aggravated assault, acting as a defiant trespasser, and spitting at a law enforcement officer. Appellant pled guilty to violating a city noise ordinance, a disorderly persons offense, and was ordered to pay $533 in fines and costs. The remaining municipal charges were dismissed.

Apart from appellant's antagonistic and unlawful behavior at the terminal on January 9, 2008, the Commission invoked two other grounds for disciplining him. First, the Commission cited an incident on January 25, 2004 in Middletown, in which appellant was involved in an altercation with a friend after they had been drinking together. Their argument caused neighbors to telephone the police, who took appellant into custody. Appellant was charged and pled guilty in the Middletown Municipal Court to disturbing the peace, a disorderly persons offense under N.J.S.A. 2C:33-2(a)(1). His guilty plea was entered on March 10, 2004. However, appellant failed to report his arrest and the disorderly persons offense to the Commission within twenty days, as required by Regulation 1.11 of the Commission's rules.

The third and final basis for the Commission's disciplinary action arises from statements that appellant made during his sworn "Article IV" interview at the Commission's offices on June 12, 2008, following the Jersey City pier incident. During the course of that interview, the following exchange took place:

Q. Do you currently or have you ever used drugs before?

A. Yes.

Q. When and what drugs?

A. Cocaine, maybe three months ago.

At that point, appellant's counsel objected to the questioning as being outside the anticipated scope of the Article IV interview. After being assured by the Commission's attorney that "these are basic questions we ask of everyone," the inquiry into appellant's past drug use continued:

Q. Were you using [cocaine] once a week?

A. Yeah, I don't know if you know, but I went through rehab through the work program.

. . . .

Q. Did you check yourself in?

A. I did, myself, yes.

Q. When did you begin using the cocaine?

A. Maybe about a year ago, maybe.

Correspondence supplied in the record to the ALJ confirmed that appellant completed a voluntary in-patient drug treatment program at a facility known as Arms Acres from April 9 through April 23, 2008. Appellant denied using any other drugs and stated that there presently would be no traces of drugs in his system.

The Commission issued formal disciplinary charges against appellant based on the three items we have described. The charges were referred to ALJ Paul Bailey, who conducted a hearing on November 5, 2008. The ALJ took testimony from Detective Stobinski and also considered various documentary exhibits.

Appellant did not testify at his administrative hearing, where he was represented by counsel, but relied upon his transcribed statement from the Article IV interview. He did not dispute that he had been intoxicated and had acted inappropriately when he encountered the detectives at the Jersey City pier. However, appellant noted that the incident had occurred after hours and that the detectives may have escalated the confrontation by the manner in which they dealt with him. Appellant also contended that his failure to report the 2004 disorderly persons offense in Middletown was a simple oversight. He had not thought his conduct in disturbing the peace was a criminal act that required reporting, likening it to a traffic ticket. Lastly, appellant acknowledged his past cocaine usage, but he urged that he should not be punished for voluntarily attending in-patient rehabilitation at a program sanctioned by his employer and labor union.

Upon considering these proofs, the ALJ found appellant, by a preponderance of the evidence, in violation of the Commission's rules and policies on all three grounds cited by the agency. Deeming appellant's "misbehavior" to comprise "a danger to the public peace or safety," the ALJ concluded that the Commission had an adequate factual basis to discipline appellant under N.J.S.A. 32:23-29. Accordingly, the ALJ recommended that appellant's license be suspended for a period of six (6) months, "[t]o emphasize [the conduct's] seriousness and [to] warn [appellant] that intoxication and disorderly behavior by a registrant on the piers or other waterfront terminals in the [P]ort of New York district will not be tolerated[.]" The ALJ also recommended that appellant, at his expense, undergo a drug screen and be subjected to random drug testing for as long as he continued to be registered as a longshoreman. Although the ALJ was satisfied that appellant's misconduct was serious, the judge found it appropriate to offer appellant "a final chance to correct his behavior."

In its final agency decision, the Commission accepted the ALJ factual findings. However, it parted company with the ALJ concerning the proposed sanction. In its three-page order issued on February 25, 2009, the Commission decided that appellant's registration should be revoked, effective March 16, 2009. No stay of the revocation pending appeal has been issued.

Appellant now appeals his sanction, arguing that the revocation of his license is arbitrary, capricious, and unreasonable, and that the Commission's punishment is disproportionate to his transgressions. He stresses that the record contains no proof that he was ever intoxicated or drug-impaired while on duty as a longshoreman. He further asserts that his off-hours conduct does not bespeak the sort of pernicious criminality that the statute was designed to eradicate from the waterfront. He maintains that his misconduct in this case does not rise to the level of seriousness involved in Knoble, supra, 67 N.J. at 431-32 (upholding revocation based upon registrant's falsification of 136 hours of time records), and in Kaiser, supra, 94 N.J. Super. at 96 (upholding denial of registration to an applicant who had four convictions for illegal gambling). With respect to his admission to past cocaine use, appellant urges that he should not be penalized for pursuing voluntary drug rehabilitation and for candidly admitting to that past drug use when asked about it at his Article IV interview.

In reviewing the Commission's administrative decision, we are mindful that our scope of review is limited. The Commission has substantial prerogatives and expertise in assuring the integrity and public safety at our piers and in the harbor itself. See Knoble, supra, 67 N.J. at 430-31; Kaiser, supra, 94 N.J. Super. at 99-100. More generally, in the review of licensure and penalty actions by administrative agencies, we accord substantial deference to, and do not ordinarily second-guess, the agency's decision, unless it is "arbitrary, capricious, or unreasonable[,] or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). When presented on appeal with a claim that the sanction imposed is excessive, the court must uphold the sanction unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)); see also Knoble, supra, 67 N.J. at 432. The court "can interpose its views only where it is satisfied that the agency has mistakenly exercised its discretion or misperceived its own statutory authority." Polk, supra, 90 N.J. at 578.

That being said, we concur with the Commission that it had ample grounds to discipline appellant severely for his belligerent resistance to the Commission's detectives at the Jersey City pier. The detectives were there simply doing their job investigating a suspicious loiterer at the pier after hours, and appellant had no justification for being uncooperative with them, despite their plainclothes attire. His intoxication provides no defense. Furthermore, appellant was obligated under the Commission's rules and regulations to report his 2004 arrest in Middletown, regardless of whether he clearly understood whether his ultimate disposition for disturbing the peace was a reportable offense.

We have concerns, however, in this case about the Commission's reliance on appellant's admission of past cocaine use, for which he obtained in-patient rehabilitation at a workplace-approved program. Appellant never denied his use of narcotics, but in fact candidly owned up to it. Although it is briefly mentioned in the ALJ's written decision, the Commission's final decision makes no reference to appellant's voluntary rehabilitation. Such self-initiated drug treatment is to be encouraged. See, e.g., N.J.S.A. 2C:35-1.1(c) (noting, among other things, the State's public policy "to facilitate whenever feasible the rehabilitation of drug dependent persons").

We are not suggesting that drug-addicted longshoremen who are being investigated by the Commission for substance abuse can avoid responsibility by checking into a rehabilitation program. However, the present scenario did not arise in that reactive fashion. Instead, the past drug use came up only through an incidental line of questioning of appellant at the Article IV interview.

Because the Commission apparently overlooked appellant's self-help in obtaining drug treatment as a potential mitigating factor, we remand this matter for its further consideration. In doing so, we do not presume to take over the agency's regulatory authority or to dictate what final sanction the Commission chooses to impose. We do note in passing that the ALJ's recommendation of suspension, short of revocation, has reasonable support in the record, and that if the Commission decided on remand to modify the sanction to a suspension, appellant would have no serious argument to challenge that outcome. Although we recognize that appellant is free to seek re-licensure by the Commission a year or more following revocation, see N.J.S.A. 32:23-37, we appreciate that may be a difficult process and also that revocation may have significant collateral impacts.

Consequently, we vacate, without prejudice, the sanction of revocation, and remand to the Commission for further consideration consistent with this opinion. We do not retain jurisdiction.

Affirmed in part, vacated in part, and remanded.

(continued)

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A-3648-08T1

October 30, 2009