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Joint Petition of Boardwalk Regency Corporation v. New Jersey Casino Control Commission6/21/2002
to review a casino's contracts with its employees only to those contracts containing profit-sharing plans. That argument is without merit. Section 104a reads, in part:
a. (1) Unless otherwise provided in this subsection, no agreement which provides for the payment, however defined, of any direct or indirect interest . . . of any money . . . gambled at a casino . . . or derived from casino gaming activity . . . shall be lawful.
* * * (3) Agreements between a casino licensee and its employees which provide for casino employee or casino key employee profit sharing and which are in writing and have been filed with the commission shall be lawful and effective only if expressly approved as to their terms by the commission.
In other words, subject to certain exceptions, such as employee profit-sharing plans, Section 104a renders unlawful certain agreements to which a casino may be a party. Section 104b, on the other hand, addresses the obligation of the casino to maintain agreements affecting its business operations, and gives the Commission, in its discretion, the right to review those agreements. Simply put, Section 104a prohibits a casino from entering into certain types of agreements, while Section 104b requires the casino to maintain agreements to which it is a party.
DiBartolomeo points out that since employee agreements are not specifically mentioned in Section 104b, they should be excepted from its coverage. However, statutory exceptions "are not to be implied." New Mea Construction Corp. v. Harper, 203 N.J. Super. 486, 502 (App. Div. 1985) (citations omitted). Here, consistent with the legislative intent underlying the Act, there was no need to specifically identify employment agreements in Section 104b, since these agreements are embodied in the statutory reference to agreements "regarding . . . the business of a . . . casino." That Section 104b does not specifically reference employment agreements, does not limit the Commission's authority to perform its functions under the Act. See N.J.S.A. 5:12-64; N.J.S.A. 5:12-75.
The Commission has always interpreted Section 104b broadly. Although DiBartolomeo argues in his brief that the Commission has not reviewed employment contracts in the past, he has submitted no authority to support his position. We give deference to the agency's construction of the statute, especially where, as in this case, such construction is consistent with the legislative intent. See Malone v. Fender, 80 N.J. 129, 137 (1979) (citations omitted). The language of Section 104b provides for review of all agreements that pertain to the business of a casino licensee. The Commission properly exercised its authority to review the severance agreement.
III.
We next turn to DiBartolomeo's alternative arguments. DiBartolomeo argues that even if the Commission has the authority to void employment agreements, its decision was not supported by the record before it. Given the deference accorded an administrative agency's findings of fact, DiBartolomeo's argument with respect to this issue fails.
We may not substitute our judgment of the facts for that of an administrative agency. Campbell v. New Jersey Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Clowes v. Terminix Int'l Inc., 109 N.J. 575, 588 (1988)). The findings of fact made by an agency are binding on appeal when supported by adequate, substantial and credible evidence. Clowes, 109 N.J. at 588 (1988). Reversal is appropriate only when an appellate court finds the decision of the administrative agency to be "arbitrary, capricious or unreasonable[,]" or unsupported by the "substantial credible evidence in the record as a whole." Henry v. Rahway State
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