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Joint Petition of Boardwalk Regency Corporation v. New Jersey Casino Control Commission6/21/2002
omeo relies on the fact that the Commission found that he was disabled. While the Commission did find that DiBartolomeo was suffering from the disease of pathological gambling, the Commission also emphasized that this finding did not preclude him from demonstrating his suitability for licensure:
It bears emphasis that the status of being a compulsive gambler does not automatically deprive a person from obtaining or retaining a license. Rather, the issue is always whether the applicant or respondent is able to demonstrate suitability for licensure. In this context, a compulsive gambler's problem may have dire consequences with respect to one's ability to demonstrate consequences with respect to one's ability to demonstrate qualifications, but it is not necessarily fatal to an application.
Ultimately, when DiBartolomeo's license was revoked, it was done so because he was unable to establish the good character, honesty and integrity necessary for licensure. His termination resulted from the Commission's revocation of his license, and not as a result of a disability.
DiBartolomeo has also failed to demonstrate that the remuneration provided for in the proposed severance agreement is connected to the disability benefit referred to in his contract with Caesars. No written disability plan has been submitted to the Commission or this court. The fact that DiBartolomeo may have been an eligible participant in Caesars' employee disability plan does not translate to a contractual entitlement to receive the claimed severance benefits.
The Commission did not abrogate DiBartolomeo's contract rights. It simply terminated those portions of the proposed severance agreement which provided for payments to him without services rendered. Those portions which were invalidated )) the "bonus" payments beyond May 22, 2000 when DiBartolomeo's leave of absence began, and the "salary continuation" payments )) were to be paid for a period of time when he was not eligible to work for a casino. On the other hand, the requested bonus for the period of January 4 to May 22, 2000, when he was employed by Caesars, albeit on leave, was construed by the Commission as payment for services rendered, and accordingly, was approved.
VI.
Our finding that the proposed severance agreement was not an agreement to pay DiBartolomeo disability benefits also bears on his claim that the Commission was preempted under the Employee Income Security Act (ERISA), 29 U.S.C.A. 1001 to -1461. This issue was not raised below, and, as such, we are not required to exercise our original jurisdiction. R. 2:10-5; Maisonet v. Department of Human Services, 140 N.J. 214, 222-23 (1995). For purposes of closure, however, we will address it. We find that jurisdiction of the Commission is not preempted by ERISA because the proposed severance agreement did not constitute a disability benefits plan encompassed by ERISA.
ERISA contains a sweeping preemption provision that is intended to maintain uniformity in the enforcement of employee benefit plans. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655-58, 115 S. Ct. 1671, 1676-78, 131 L. Ed. 2d 695, 704-06 (1995); Morrone v. Thuring, 334 N.J. Super. 456, 470 (Law Div. 2000). ERISA "supercede any and all State laws" that "relate to any employee benefit plan" by any employer engaged in commerce. 29 U.S.C.A. ยง1144(a). A law "'relates to' an employee benefit plan" if it "has a connection with" or reference to such a plan, "even if the law is not specifically designed to affect such plans, or the effect is only indirect." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 11 S. Ct. 478, 483, 112 L. Ed.
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