In the Matter of Commission Proceeding on Revocation of License of Pasquale Pontoriero , 439 N.J. Super. 24 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1006-12T4
APPROVED FOR PUBLICATION
January 7, 2015
IN THE MATTER OF COMMISSION
PROCEEDING ON REVOCATION OF APPELLATE DIVISION
LICENSE OF PASQUALE PONTORIERO
_________________________________
Argued November 18, 2014 - Decided January 7, 2015
Before Judges Yannotti, Fasciale, and
Hoffman.
On appeal from the Waterfront Commission of
New York Harbor, Case No. RHA-158.
David C. Stanziale argued the cause for
appellant Pasquale Pontoriero (David C.
Stanziale, L.L.C. and Jon S. Deutsch,
attorneys; Mr. Deutsch, of counsel; Mr.
Stanziale, of counsel and on the briefs).
Phoebe S. Sorial, General Counsel, argued
the cause for respondent Waterfront
Commission of New York Harbor.
The opinion of the court was delivered by
HOFFMAN, J.A.D.
Appellant Pasquale Pontoriero appeals from the September
18, 2012 order of the Waterfront Commission of New York Harbor
("Commission") revoking his license to work as a hiring agent on
the New Jersey waterfront. For the reasons that follow, we
affirm.
I.
The relevant facts are essentially undisputed. The
Commission is a bi-state agency charged with enforcing the
Waterfront Commission Act, N.J.S.A. 32:23-1 to -225 (the
"Waterfront Act"), which seeks to combat corruption and
organized crime on the New Jersey and New York waterfronts.
N.J.S.A. 32:23-2; Knoble v. Waterfront Comm'n of N.Y. Harbor, 67
N.J. 427, 430 (1975). The Commission licenses and regulates
waterfront employees, including hiring agents. N.J.S.A. 32:23-
12. Hiring agents select longshoremen for employment, N.J.S.A.
32:23-6, and the record indicates that, although they are
regulated by the Commission, they maintain some discretion in
their ability to award or deny work. In order to evaluate and
administer licenses, the Legislature empowered the Commission to
administer oaths and issue subpoenas to compel witness
testimony. N.J.S.A. 32:23-10.
The Commission interviewed appellant, under oath, on March
30, 2010. We discern the following facts from that interview,
and the record of the administrative hearing that followed.
Tino Fiumara and Steven DePiro are members of the Genovese crime
family ("Genovese family"). Fiumara, a capo,1 had a reputation
1
See State v. Cagno, 211 N.J. 488, 495 (2012), cert. denied, ___
U.S. , 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013) explaining
(continued)
2 A-1006-12T4
for ruthlessness and violence, and oversaw the New Jersey
waterfront with an "iron grip" until his death in 2010. DePiro
began running the Newark ports for Fiumara in 2005.
In 1980 Fiumara was convicted of racketeering, and DePiro
was convicted of racketeering in 1999. Both were convicted of
conspiracy to commit misprision of a felony in 2003. More
recently, in 2011, DePiro was indicted for racketeering and
extortion on behalf of the Genovese family. Both men have been
the subject of numerous newspaper articles concerning their
illegal activities.
Appellant spent time growing up at his grandmother's house
in the Ironbound/Down Neck neighborhood of Newark. Appellant
began working as a longshoreman on the Newark waterfront in 1995
or 1996. On October 10, 2006, the Commission awarded appellant
a permanent license to work as a hiring agent.
In his spare time, appellant served as the secretary and
treasurer for the Spilingese Social Club, a known gathering
place of the Genovese family. Through social and family
contacts, appellant was acquainted with numerous individuals
(continued)
that "La Cosa Nostra families are organized on a hierarchical
basis. At the bottom of this hierarchy are 'soldiers' who have
taken an oath of loyalty to the family and are organized into
functional units called 'crews,' which are headed by 'captains'
or 'capos.'"
3 A-1006-12T4
known to be members or associates of the Genovese family,
including Fiumara and DePiro. Appellant's father introduced
appellant to Fiumara around 1985. Appellant's father also
posted bail for Fiumara in 2002. Appellant was generally aware
of Fiumara's association with organized crime.
In the summer of 2009, appellant attended a private
birthday dinner for Fiumara. Appellant drove his father to the
law offices of Fiumara's lawyer, Salvatore Alfano, in
Bloomfield. There they met Dan Seratelli, his wife, Anthony
Puciarello (Fiumara's cousin), and his wife. A waiting
limousine drove the group to a steakhouse in Long Island, New
York, where they joined Fiumara and his girlfriend. According
to Alfano, when Fiumara saw appellant, he said something to the
effect, "I haven't seen you in a long time. You got fat."
After dinner, appellant and his father left in the limousine.
Appellant also visited DePiro at his home twice in the four
or five months leading up to the March 30, 2010 hearing.
Appellant alleged that on both occasions he was nearby buying
sausage with his coworker Sal LaGrasso (DePiro's cousin), and,
on LaGrasso's request, briefly dropped in on DePiro to catch up.
LaGrasso was indicted in 2011, along with DePiro, for extorting
money from waterfront employees. While appellant estimated that
the visits lasted less than twenty minutes, surveillance footage
4 A-1006-12T4
revealed that one of those visits lasted approximately one hour.
Appellant denied knowing that DePiro was involved with organized
crime in any way.
In September of 2010, as a result of appellant's testimony,
the Commission brought administrative proceedings to revoke,
cancel, or suspend appellant's hiring agent license for
"association" with Fiumara and DePiro "inimical to the policies"
of the Waterfront Act, contrary to N.J.S.A. 32:23-93(6) to -(7)
("the underlying statute"), and for lack of good character and
integrity, contrary to N.J.S.A. 32:23-14(a), -18(a). An
Administrative Law Judge ("ALJ") presided over the hearings.
Appellant moved to stay the proceedings pending the resolution
of ongoing criminal investigations, which involved federal and
state grand jury subpoenas. The ALJ denied the motion to stay,
and held eight hearings between January 19, 2011 and March 7,
2012.
Notwithstanding his prior testimony, appellant invoked his
Fifth Amendment privilege against self-incrimination, and
refused to answer any questions. Of relevance here, appellant
refused to answer questions regarding whether he had ever paid
for a position at the waterfront, whether his father was known
as "Tino's guy" (referring to Tino Fiumara), and whether he
5 A-1006-12T4
favored hiring particular longshoremen based on Genovese family
instructions.
The Commission presented expert testimony from Robert
Stewart, former Chief of the Organized Crime Strike Force for
the U.S. Attorney's Newark Office, and an expert on organized
crime and the Genovese family. Stewart testified that the sole
imperative of the Genovese family is to generate money for the
family, and that this goal is inimical to the public interest.
The Genovese family extorts money from the waterfront by
instructing hiring agents to deny jobs to recalcitrant
longshoremen. In this way, hiring agents are the keystone to
the Genovese family's waterfront extortion rackets.
Stewart opined that rumors of associations between
waterfront supervisors and organized crime members "spread
across the piers like wildfire" in the tight-knit waterfront
community. He said, "The piers are rife with gossip about who
is who, who is mobbed up, who you should stay away from."
Stewart opined that such rumors created the belief that
organized crime controlled the industry, strengthening the grip
of the Genovese family over the longshoremen. Stewart added
that "[t]here [was] no doubt in [his] mind" that meeting with
Fiumara and DePiro "create[d] a reasonable belief" appellant was
complicit in organized crime.
6 A-1006-12T4
Alfano and Seratelli testified regarding Fiumara's birthday
dinner, corroborating appellant's account. DePiro and Fiumara's
girlfriend refused to testify, and the parties stipulated that,
if called, they would invoke the Fifth Amendment in response to
all questions. Appellant's father also refused to testify,
citing poor health.
Appellant presented expert testimony from Michael Levine, a
former undercover federal agent, and an expert in organized
crime. Levine admitted that the scope of his expertise did not
extend to administrative hearings, and that he had evaluated the
case from a purely criminal perspective. Levine generally
concurred with Stewart's testimony regarding the impact of
rumors of associations between waterfront supervisors and
organized crime members on the waterfront, and agreed that
"wiseguys" publicize their criminal reputation in order to
increase their power. Appellant also presented testimony from
Jeffrey Schoen, the Commission's Director of Law and Licensing,
and two of appellant's supervisors, all of whom testified to
appellant's unblemished employment history. Additionally,
appellant introduced a letter of good character from Nicholas
DiMarzio, the Bishop of Brooklyn.
On August 16, 2012, the ALJ issued an extensive written
opinion finding that all charges against appellant had been
7 A-1006-12T4
"established by a clear preponderance of the evidence." In
interpreting the underlying statute, the ALJ adopted the
Commission's definition of "association": "to keep company, as a
friend, companion or ally." As for the definition of "inimical"
contained within the same statute, the ALJ turned to the
definition developed by the New Jersey Casino Control Commission
("CCC") under the New Jersey Casino Control Act, N.J.S.A. 5:12-1
to -233 ("CCA"): "adverse to the public confidence and trust in
the credibility, integrity and stability of casino gaming
operations and in the strict regulatory process created by the
[CCA]." Application of Bayshore Rebar, Inc., CCC 08-0318-SI at
52, initial decision, (March 23, 2010); accord Div. of Gaming v.
Staluppi, 94 N.J.A.R.2d (Vol. 1) 31, 36 (CCC).
Next, the ALJ found that the Waterfront Act does not
require proof that the association was for a criminal purpose,
or that appellant knew or should have known of Fiumara and
DePiro's criminal history. In particular, the ALJ relied upon a
2007 amendment to N.J.S.A. 32:23-93(6) that removed the
requirement that "the licensee or registrant knows or should
know" of the associate's criminal reputation. L. 2007, c. 333,
§ 2. The ALJ, therefore, effectively concluded that the alleged
charges are strict liability regulations.
8 A-1006-12T4
The ALJ chose to draw an adverse inference from appellant's
invocation of the Fifth Amendment. He held that the transcript
of the March 30, 2010 hearing provided insufficient testimony to
overcome these inferences, as it was a poor substitute for live
testimony. He conceded there was "no evidence that the
[birthday] dinner . . . was anything more than a social
occasion[,]" but concluded that the meeting "created an
unacceptable risk of corruption" and "would reasonably cause an
ordinary longshoreman to believe that [appellant] had been
compromised or [was] otherwise vulnerable to influence from
reported racketeers." As to DePiro, the ALJ similarly concluded
that appellant's two meetings created "an unacceptable risk of
corruption" inimical to the Waterfront Act.
On September 18, 2012, the Commission considered the record
of the proceedings, including the findings and recommendations
of the ALJ, and found that appellant knowingly associated with
Fiumara and DePiro under circumstance where such association
creates a reasonable belief that his participation in any
waterfront activity would be inimical to the policies of the
Waterfront Act. The Commission also found that appellant lacks
good character and integrity within the meaning of the
Waterfront Act, based on his association with Fiumara and
9 A-1006-12T4
DePiro, and revoked appellant's license as a hiring agent,
effective immediately.
On appeal, appellant argues that the Commission's findings
and decision were arbitrary, capricious, and unreasonable
because: (1) the factual findings were not supported by
sufficient credible evidence; (2) the ALJ and Commission's
interpretation of the Waterfront Act as a strict liability
statute was erroneous; (3) the ALJ and the Commission failed to
use the proper definitions of "association" and "inimical"; (4)
the relevant sections of the Waterfront Act are
unconstitutionally vague; (5) the finding that appellant lacked
good character and integrity was not supported by competent,
credible evidence; and (6) the revocation of appellant's license
was disproportionate to the alleged offenses and shocking to
one's sense of fairness.
II.
When reviewing an administrative agency's final quasi-
judicial decision, it should only be reversed on "a 'clear
showing' that it is arbitrary, capricious, or unreasonable, or
that it lacks fair support in the record[.]" Circus Liquors,
Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). We consider:
(1) whether the agency's action violates
express or implied legislative policies,
that is, did the agency follow the law; (2)
whether the record contains substantial
10 A-1006-12T4
evidence to support the findings on which
the agency based its action; and (3) whether
in applying the legislative policies to the
facts, the agency clearly erred in reaching
a conclusion that could not reasonably have
been made on a showing of the relevant
factors.
[Id. at 10 (quoting Mazza v. Bd. of Trs.,
143 N.J. 22, 25 (1995)).]
We only reverse agency fact-finding if "'clearly . . .
mistaken . . . and so plainly unwarranted that the interests of
justice demand intervention and correction[.]'" Campbell v.
N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (quoting Clowes
v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). Reasonable
credibility determinations are afforded similar deference. Id.
at 588. Lastly, "[w]hen resolution of a legal question turns on
factual issues within the special province of an administrative
agency, those mixed questions of law and fact are to be resolved
based on the agency's fact finding." Ibid.
A.
We first address appellant's contention that the ALJ and
the Commission improperly interpreted the underlying statute.
N.J.S.A. 32:23-93 provides that the Commission may revoke or
suspend a license for:
(6) Association with a person who has been
identified by a federal, state or local law
enforcement agency as a member or associate
of an organized crime group, a terrorist
group, or a career offender cartel, or who
11 A-1006-12T4
is a career offender, under circumstances
where such association creates a reasonable
belief that the participation of the
licensee or registrant in any activity
required to be licensed or registered under
this act would be inimical to the policies
of [the Waterfront Act].
. . . .
(7) . . . [K]nowing association with a
person who has been convicted of a
racketeering activity by a court of the
United States, or any state or territory
thereof under circumstances where such
association creates a reasonable belief that
the participation of the licensee or
registrant in any activity required to be
licensed or registered under this act would
be inimical to the policies of [the Act].
No courts have interpreted these provisions. Accordingly, this
is a case of first impression, and we turn to the canons of
statutory interpretation.2
"When interpreting a statute, our main objective is to
further the Legislature's intent." TAC Assocs. v. N.J. Dep't of
Envtl. Prot., 202 N.J. 533, 540 (2010). We first look "to the
plain language of the statute in question." Id. at 541. We
give those "'words their ordinary meaning and significance.'"
James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 566 (2014) (quoting
Perez v. Prof'lly Green, L.L.C., 215 N.J. 388, 399 (2013)).
2
Appellant does not dispute that Fiumara and DePiro qualify as
members of an organized crime group, career offenders, and
convicted racketeers. Accordingly, we need not address that
element of the analysis.
12 A-1006-12T4
When the plain meaning is unclear or ambiguous, we next consider
extrinsic evidence of the Legislature's intent, including
legislative history and statutory context. TAC, supra, 202 N.J.
at 541.
However, where a statute is ambiguous, we give substantial
deference to the interpretation of the agency empowered to
enforce it. Ibid. In those circumstances, the court "need not
conclude that the agency construction was the only one it
permissibly could have adopted, or even the reading the court
would have reached if the question initially had arisen in a
judicial proceeding[,]" but only whether the interpretation is
"plainly unreasonable." Matturri v. Bd. of Trs. of the Judicial
Ret. Sys., 173 N.J. 368, 382 (2002) (citations and internal
quotation marks omitted).
In the context of the federal prosecution of organized
crime, the term "association" has a specific meaning, commonly
referred to as an "association-in-fact," which is one method of
demonstrating participation in a criminal enterprise. See,
e.g., Boyle v. United States, 556 U.S. 938, 944-45, 129 S. Ct.
2237, 2243, 173 L. Ed. 2d 1265, 1274-75 (2009); 18 U.S.C.A. §
1961(4) ("'[E]nterprise' includes any . . . association, or
other legal entity, and any union or group of individuals
associated in fact although not a legal entity[.]").
13 A-1006-12T4
Here, however, we are persuaded that the Legislature
intended the common form of the term "association." As applied
by the ALJ, "association" is the noun form of the verb
"associate," which Webster's New College Dictionary 70 (3rd ed.
2005), defines as: "[t]o keep company." The CCA guides our
analysis. N.J.S.A. 5:12-86.f ("subsection f") disqualifies any
casino license applicant who is an "associate of a career
offender or career offender cartel in such a manner which
creates a reasonable belief that the association is of such a
nature as to be inimical to the policy of [the CCA] and to
gaming operations." As with the statute here, subsection f does
not define the term "associate." The similarities between
subsection f and the underlying statute are striking, and the
CCA has been the subject of greater litigation and judicial
interpretation.3 Accordingly, we look to those cases to inform
our decision.
In Staluppi, supra, 94 N.J.A.R.2d at 37, the CCC denied a
finding of inimical association under subsection f. There,
rather than analyzing the existence of an association as an
independent element, the CCC implicitly applied the word's
ordinary meaning, and considered instead whether the
3
Although the Waterfront Act predates the CCA, the subsections
of the Waterfront Act at issue here were substantially amended
in 2007 to conform with the CCA. L. 2007, c. 333, § 2.
14 A-1006-12T4
relationship was inimical to the purposes of the CCA. Id. at 36
("The [CCA] has long recognized that not every relationship with
career offenders will be the basis for exclusion from the
casinos . . . . The nature, quality and scope of the
association must be evaluated . . . ." (emphasis added)
(citation omitted)).
In In re Hotel & Restaurant Employees & Bartenders
International Union Local 54, 203 N.J. Super. 297, 325-26 (App.
Div.), certif. denied, 102 N.J. 352 (1985), cert. denied, 475
U.S. 1085, 106 S. Ct. 1467, 89 L. Ed. 2d 723 (1986), we
implicitly approved of this approach to subsection f. There, we
considered an argument that subsection f was unconstitutional
under First Amendment freedom of association, as it regulated "a
purely social relationship . . . ." Local 54, supra, 203 N.J.
Super. at 325.
Although the evidence in that case demonstrated substantial
interaction, we upheld the statute on the assumption that it
encompassed purely social interaction. Id. at 318, 326.
Moreover, although we distinguished the issues of "whether
[respondents] were associated with members of a career offender
cartel, and . . . whether that association was . . . inimical .
. . [,]" we did not apply a heightened legal definition of the
term "associate." Id. at 309.
15 A-1006-12T4
Most importantly, applying a heightened legal definition of
the term "association" would undermine the legislative intent of
the Waterfront Act by implying a category of relationships that
are inimical to the Waterfront Act, but are not "associations."
Under this contrary reading, the underlying statute would permit
an inimical but non-association relationship. The Legislature
clearly did not intend such a result.4
As the statute is silent on the definition of
"association," as the Commission's interpretation is not plainly
unreasonable, and as the Commission's reading best preserves the
legislative intent of the Waterfront Act, we affirm its
interpretation. "Association," in the context of the underlying
statute, encompasses the ordinary meaning of the term: — to keep
company, as a friend, companion or ally — and encompasses both
social and economic relationships. Accordingly, the substantive
element of the underlying statute is whether appellant's
relationship with the Genovese family, even if only purely
social, "creates a reasonable belief that the participation of
the licensee [as a hiring agent] would be inimical to the
policies of this act." N.J.S.A. 32:23-93(6) to -(7).
4
Consider, for example, a hiring agent that only briefly meets a
Genovese family capo, but accepts a gift from that person.
While there is not a substantial contact, there is good reason
to doubt the hiring agent's character.
16 A-1006-12T4
Thus, we turn to the definition of "inimical," and the
proper standard for a finding of inimical association. The
Commission adopted the ALJ's definition of "inimical": "adverse
to the public confidence, trust, credibility, integrity and
stability of the industry," as discussed by the CCC in Bayshore,
supra, CCC 09-0318-S1 at 52. This accords with our own
interpretation of the CCA where we decided inimical to mean
"harmful or adverse." Local 54, supra, 203 N.J. Super. at 316
(citation and internal quotation marks omitted). We conclude
that the term "inimical," as used in the Waterfront Act, means
adverse to the public confidence and trust in the credibility,
integrity and stability of the waterfront and in the strict
regulatory process of the Act.
Finally, we address the proper standard for finding an
inimical association. Here, the ALJ imposed no burden on the
Commission to show: (1) appellant met with Fiumara and DePiro
for an illegitimate purpose; or (2) appellant knew or should
have known of Fiumara's and DePiro's criminal histories. In
rejecting these two elements, the ALJ effectively imposed a
strict liability interpretation of the underlying statute.
We have held that, given the highly regulated and sensitive
nature of the casino industry, subsection f could be
legitimately construed to encompass "unknowing or otherwise
17 A-1006-12T4
innocent association . . . ." In re Boardwalk Regency Corp. for
Casino License, 180 N.J. Super. 324, 340-41 (App. Div. 1981),
aff'd as modified, 90 N.J. 361, appeal dismissed sub nom.
Perlman v. Attorney Gen. of N.J., 459 U.S. 1981, 103 S. Ct. 562,
74 L. Ed. 2d 927 (1982). Here, the history of corruption on the
waterfront, as well as the need for strict regulation, is well
established:
[T]he conditions under which waterfront
labor is employed . . . are depressing and
degrading to such labor, resulting from the
lack of any systematic method of hiring, the
lack of adequate information as to the
availability of employment, corrupt hiring
practices and the fact that persons
conducting such hiring are frequently
criminals and persons notoriously lacking in
moral character and integrity and neither
responsive or responsible to the employers
nor to the uncoerced will of the majority of
the members of the labor organizations of
the employees[.]
[N.J.S.A. 32:23-2; see also N.J.S.A. 32:23-3
to -5.]
Moreover, as noted by the ALJ, a strict liability
interpretation is consistent with the legislative history of
N.J.S.A. 32:23-93. Prior to 2007, the statute prohibited:
Association with a person whom the licensee
or registrant knows or should know is a
member or associate of an organized crime
group or cartel or of a terrorist group or
cartel.
[L. 2005, c. 313, § 6 (emphasis added).]
18 A-1006-12T4
The stated intent of the 2007 amendment was to "replace [the
then] current requirement that the applicant, licensee, or
registrant knows or should know of the associate’s career
offender status or affiliation with the group or cartel[,]" with
the requirement of "circumstances under which [the association]
creates a reasonable belief that the participation of the . . .
licensee . . . in any activity required to be licensed . . .
under the [Act] would be inimical to the policies of the [A]ct."
Assembly Transp. and Pub. Works Comm., Statement to A. 4088
(June 14, 2007). Thus, the Legislature explicitly abrogated any
specific requirement of actual or constructive knowledge.
We briefly note that N.J.S.A. 32:23-93(7) departs from
N.J.S.A. 32:23-93(6) by prohibiting "knowing association" with a
convicted racketeer. Although the two subsections contrast, we
do not believe that the Legislature intended to apply a
heightened burden on the Commission under N.J.S.A. 32:23-93(7).
Accordingly, we interpret "knowing association" only as an
exclusion of happenstance, inadvertent, or unplanned encounters.
Similarly, the current wording of N.J.S.A. 32:23-93(6) to -
(7), as well as the ALJ's and the Commission's definition of
"inimical," supports the conclusion that the statute is just as
concerned with the perception of corruption as it is with actual
collusion between hiring agents and organized crime. The
19 A-1006-12T4
alleged association need only "create a reasonable belief" that
the licensee's continued participation is inimical to the
Waterfront Act, and the licensee's participation is inimical if
it is adverse to public confidence and trust. N.J.S.A. 32:23-
93(6) to -(7). The record here further supports this
conclusion, as the Genovese family's control of the waterfront
depends just as much on the perception of influence as it does
on actual influence. Thus, we affirm the Commission's decision
not to impute a requirement of criminal or illegitimate purpose.
Notably, adoption of this strict liability approach, as
well as our definition of "association," accords with published
New York case law concerning New York's codification of the
Waterfront Act, NY Unconsol. Law c. 307, § 5-i (Consol. 2014).
See, e.g., In re Dillin v. Waterfront Comm'n of N.Y. Harbor, 990
N.Y.S.2d 170, (App. Div. 2014). In Dillin, petitioner
longshoreman Margaret Dillin attended two parties hosted by a
member of the Genovese family, and bragged about her
relationship with him. Id. at 172.
The ALJ, applying a broad definition of "association," and
the same strict liability theory applied here, recommended
revocation of Dillin's license, and the Commission adopted the
ALJ's recommendation. In re Dillin v. Waterfront Comm'n of N.Y.
Harbor, No. 100575/13 (N.Y. Sup. Ct. Aug. 15, 2013) (slip op. at
20 A-1006-12T4
1-10). The trial court reversed, rejecting the ALJ's definition
of "association," and finding that "this section of the [Act] is
not a strict liability section." Id. at 10. However, the New
York Appellate Division, noting that the Commission's findings
were supported by substantial evidence, held that Dillin
"engaged in conduct which potentially undermine[d] the
Commission's continuing efforts to ensure public safety by
reducing corruption on the waterfront[,]" reversed the trial
court, and confirmed the Commission's original determination.
Dillin, supra, 990 N.Y.S.2d at 171.
We disagree, however, with the Commissioner's present
rejection of the factors articulated in Staluppi, supra, 94
N.J.A.R.2d at 36. There, the CCC identified several factors
relevant to the inimical nature of an association. Ibid. Those
factors effectively categorize the characteristics of a
relationship that are relevant to the instant analysis. While
application of strict liability means that the Commission can
carry its burden without demonstrating illegitimate purpose or
knowledge of the associate's criminal history, those facts are
still clearly relevant to whether or not an association is
inimical to the Waterfront Act.
Given the Commission's discretion in applying strict
liability, the wording and legislative history of the underlying
21 A-1006-12T4
statute, and the evidence in the record that the mere appearance
of corruption strengthens the grip of the Genovese family on the
waterfront, we conclude that a finding of inimical association,
here, rests upon whether a reasonably objective observer could
believe that the criminal associate could influence the licensee
in his or her role as a worker regulated by the Act.
This standard is meant to encompass the risk of actual
corruption as well as any reasonable perception of corruption by
the public. Additionally, drawing from Staluppi, supra, 94
N.J.A.R.2d at 36, we adopt the following as a set of non-
dispositive factors relevant to this standard:
(1) The nature and sensitivity of the
licensee's position;
(2) The time elapsed since the licensee's
last interaction with the associate;
(3) The duration and frequency of the
association;
(4) The purpose and nature of the
association;
(5) Whether the association was attenuated
through third-parties;
(6) The associate's character and
reputation;
(7) The licensee's knowledge or reasonable
efforts to determine the associate's
character and reputation;
(8) If there is more than one associate, the
number of associates, and the relationship
amongst them;
22 A-1006-12T4
(9) Termination of the association, if any;
(10) The reasons for any such termination;
and
(11) Any other relevant facts or
circumstances.
B.
Applying this framework to the case under review, we
conclude that the record supports the Commission's fact-finding
and conclusions. As noted, appellant spent part of his
childhood growing up in a neighborhood tied to the Genovese
family, and later served as the secretary and treasurer for a
known Genovese family gathering place. Appellant ultimately
secured employment as a hiring agent, a position that is highly
sensitive to corruption, and that serves as the keystone to the
Genovese family's extortion rackets on the waterfront.
Appellant attended a private birthday dinner for Fiumara,
an old family friend. Fiumara had a criminal record, and was
widely-known as a ruthless and violent Genovese family capo.
Appellant then visited DePiro at his house on two occasions, in
the company of a coworker also tied to the Genovese family.
DePiro was Fiumara's right-hand man, controlling the extortion
rackets on the waterfront, and although appellant disclaimed
knowledge of DePiro's criminal history, his role in the Genovese
family was the subject of numerous news articles. Lastly, when
questioned about their relationship, both appellant and DePiro
23 A-1006-12T4
pled the Fifth Amendment, appropriately drawing an adverse
inference from the ALJ.
Given these facts, the record supports the conclusion that
appellant's association with Fiumara and DePiro created "an
unacceptable risk of corruption." Moreover, from these facts, a
reasonable observer could conclude that Fiumara and DePiro held
influence over appellant in his role as a hiring agent.
Accordingly, the association is inimical, as adverse to the
public confidence and trust in the credibility, integrity and
stability of the waterfront and in the strict regulatory process
of the Waterfront Act. Therefore, we affirm the Commission's
decision as to the underlying statute. As a derivative charge,
we similarly affirm as to lack of good character and integrity,
under N.J.S.A. 32:23-14(a), -18(a).
C.
Appellant next argues that the underlying statute is
unconstitutionally vague on its face. "A statute . . . is
facially unconstitutional for vagueness if it [is] so vague that
men of common intelligence must necessarily guess at its meaning
and differ as to its application." Karins v. Atl. City, 152
N.J. 532, 541 (1998) (citations and quotation marks omitted). A
civil statute will only be struck down if it is "impermissibly
vague in all applications." Binkowski v. State, 322 N.J. Super.
24 A-1006-12T4
359, 381 (App. Div. 1999) (quoting Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S. Ct.
1186, 1193, 71 L. Ed. 2d 362, 371 (1982)). "The test is whether
the language conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practices." Jordan v. De George, 341 U.S. 223, 231-32, 71 S.
Ct. 703, 708, 95 L. Ed. 886, 892 (1951).
We have repeatedly upheld the analogous provisions of the
CCA against claims of vagueness. See State, Dep't of Law & Pub.
Safety, Div. of Gaming Enforcement v. Merlino, 216 N.J. Super.
579, 585 (App. Div. 1987), aff'd o.b. 109 N.J. 134 (1988)
("[T]he inimicality test has twice been upheld against a claim
of vagueness[.]"); Local 54, supra, 203 N.J. Super. at 334;
Boardwalk Regency, supra, 180 N.J. Super. at 347. As subsection
f is sufficiently definite to overcome arguments of facial
vagueness, so too is the nearly identical language of the
underlying statute.
D.
Finally, appellant argues that the revocation of his
license was a disproportionate punishment to the charges
alleged. "[W]hen reviewing administrative sanctions, appellate
courts should consider whether the 'punishment is so
disproportionate to the offense, in the light of all of the
25 A-1006-12T4
circumstances, as to be shocking to one's sense of fairness.'"
In re Stallworth, 208 N.J. 182, 195 (2011) (quoting In re
Carter, 191 N.J. 474, 484 (2007)).
Termination of employment for a single incident is within
an agency's discretion where the work is of a sensitive nature,
and where the employee's conduct demonstrates a lack of honesty
and good character. Knoble, supra, 67 N.J. at 431-32. Here,
revocation of appellant's license would deprive him of
employment in the field that he has worked for approximately
fourteen years.
Appellant alleges, and the record supports, that he has an
otherwise unblemished employment history. However, appellant's
position as a hiring agent is a sensitive position, granting
discretionary authority over longshoremen, and serving as the
keystone to corruption on the waterfront. Appellant's
association with the Genovese family demonstrates a lack of good
character and integrity, and allowing him to continue working as
a hiring agent would further undermine public confidence in the
integrity and stability of the operation of the waterfront. We
therefore find that the Commission's punishment was not
disproportionate to the offenses under review.
Accordingly, we conclude that the Commission's findings of
fact and conclusions of law are legally sound and supported by
26 A-1006-12T4
sufficient credible evidence of record. A reasonably objective
observer could believe that the Genovese family could influence
appellant in his role as a hiring agent.
Affirmed.
27 A-1006-12T4