Opinion
DOCKET NO. A-3928-11T4
01-03-2014
IN THE MATTER OF LAYNE J. DAGOSTINO, Petitioner-Appellant.
E. Allen Nickerson, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey State Police (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Guadagno.
On appeal from the New Jersey Division of State Police.
E. Allen Nickerson, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey State Police (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief). PER CURIAM
Appellant Layne J. Dagostino appeals from a February 23, 2012 final administrative decision of the Division of State Police denying his application for a "bounty hunter" license. We affirm.
A person seeking to conduct the business of bounty hunting in this State must be licensed by the Superintendent of the New Jersey State Police (NJSP), N.J.S.A. 45:19-30. Dagostino filed an application for a bounty hunter's license with the NJSP on June 25, 2010. On May 18, 2011, the NJSP denied Dagostino's license application citing:
1. N.J.A.C. 13:55B-2.7(a)6 — The person applying for a license, has knowingly made a false material statement or omitted information in an application or any form required by the Superintendent under the rules of this chapter.
2. N.J.A.C. 13:55B-2.7(a)7 — The person applying for a license, has demonstrated bad moral character, incompetence, or untrustworthiness.
3. N.J.A.C. 13:55B-2.7(a)8 — The Superintendent determines that good cause exists to deny, revoke, suspend, or refuse renewal of a bounty hunter license in the interest of public safety.
Specifically, in his license application, Dagostino responded "no" to the question:
"[i]s there any complaint against you now pending before any department bureau, board, prosecuting officer, criminal court or any other governmental or regulatory body or officer?"However, during the pendency of his license application, Dagostino was awaiting final adjudication of a charge of impersonating a public servant in Newfield Borough Municipal Court, N.J.S.A. 2C:28-8A, for which he subsequently pled guilty on March 1, 2011 as amended to a violation of a noise ordinance. The denial was also based on his alleged use of his law enforcement credentials with the Federal Reserve Bank of Philadelphia for personal gain.
Dagostino appealed the denial and the matter was transferred to the Office of Administrative Law, where a hearing was conducted on December 12, 2011. According to the proofs adduced at that hearing, on October 5, 2009, Dagostino had been charged with two counts of acting as a bounty hunter without a proper license, in Newfield (Gloucester County) and Vineland (Cumberland County), New Jersey, in violation of N.J.S.A. 45:19-30, a fourth-degree crime. The Vineland charge was downgraded to a violation of a municipal ordinance of "Any act which Offends the Peace/Good Order of the City," and was resolved on May 18, 2010. The Newfield charge, however, resulted in an indictment that was later downgraded to the disorderly person's offense of Impersonating a Public Servant, to which Dagostino pled guilty on June 21, 2010, in Gloucester County.
Despite having entered this guilty plea just four days before submitting his bounty hunter license application to the NJSP, Dagostino answered "no" to Question No. 4 on that application, which inquired "have you ever been convicted of any other crime or offense?" At the hearing, Dagostino explained that he was confused over the meaning of the term "crime or an offense," supposedly not realizing that a disorderly persons conviction was a conviction of an "offense."
Moreover, less than one month after filing his license application, Dagostino filed a motion to withdraw his guilty plea to the Newfield impersonation charge, which was granted on September 17, 2010, resulting in the matter being remanded to the Newfield Borough Municipal Court for disposition of the impersonation charge. Despite the pendency of this reopened charge, Dagostino never attempted to notify the NJSP of this development nor amend his answer to Question No. 5 inquiring about pending charges, to include this new information. Ultimately, the matter was downgraded and on March 1, 2011, Dagostino pled guilty to violation of a municipal noise ordinance.
As to the allegation that he used his Federal Reserve Bank credentials for personal gain, Dagostino testified that in renewing his application for a search engine with Merlin Information Service in connection with his outside bail enforcement business, his wife inadvertently faxed his federal credentials that were contained in the same file as the other information he needed to submit.
After the close of evidence, on January 9, 2012, the Administrative Law Judge (ALJ) issued his initial decision upholding NJSP's denial of Dagostino's license application. While finding that Dagostino did not use his federal credentials improperly, the ALJ concluded that the applicant was not truthful in his license application. Specifically, the ALJ determined that:
[a]s for his answer to Question 4 regarding conviction of an offense, his answer in his hearing as to why he did not answer this in the affirmative, after having been convicted of the disorderly persons offense of impersonating an officer just four days before, is a bit unsatisfactory. His initial expression of confusion over what was meant by an "offense" and his acknowledgment shortly thereafter that he did not know why he did not answer that he had been convicted are rather troubling. He had just pled guilty to impersonating a public servant, and should have known that this piece of information might well be of interest to the State Police in regard to his attempt to be licensed as a bounty hunter, a job that assuredly treads close to the line in respect to the actions and responsibilities of actual public law enforcement officers. A claim of confusion as to the meaning of "offense" in this context is a bit hard to accept, even in light of the fact that the Vineland matter had ended in a plea to an ordinance violation. And it is not to be overlooked that even after he consulted with an attorney about the plea, he did not ever advise the State Police that in fact he had been convicted of an "offense."Consequently, the ALJ concluded that Dagostino failed to demonstrate good character and morals, and ordered that his application be denied.
Pursuant to N.J.S.A. 52:14B-10, the ALJ's Initial Decision became a Final Decision on February 23, 2012, due to the inaction of the NJSP Superintendent to "adopt, modify or reject" the Initial Decision within forty-five days of its issuance.
This appeal follows, in which Dagostino argues that the denial of his license application "was not based upon 'substantial credible evidence' in the record and was therefore, arbitrary, capricious and unreasonable." We disagree and affirm substantially for the reasons stated by the ALJ in his thorough written decision of January 9, 2012. We add only the following comments.
Our scope of review of an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's conclusion, appellant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of reasonableness. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).
Moreover, we give "due regard" to the ability of the factfinder to judge credibility and, where an agency's expertise is a factor, to that expertise. In re Taylor, 158 N.J. 644, 656-57 (1999); State v. Locurto, 57 N.J. 463, 470-71 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 492 (1956). Where a credibility determination "is reasonably made, it is conclusive on appeal." Freud v. Davis, 64 N.J. Super. 242, 246 (App. Div. 1960).
Applying these principles, we are satisfied that the decision denying licensure is supported by sufficient credible evidence in the record and is consistent with the enabling statute. There is a clear public policy in this State, as evidenced by the Bounty Hunter Licensing Act (BHLA), N.J.S.A. 45:19-28 to -42, to strictly regulate the occupation of bounty hunting and limit its licensees to those persons of "good character, competency and integrity[,]" N.J.S.A. 45:19-31a(5). To this end, the Legislature has empowered the Superintendent to determine the information required of applicants to demonstrate their licensing credentials, N.J.S.A. 45-19:31a, and further has made punishable as a fourth-degree crime the applicant's provision of a knowingly false statement or a knowing omission of material information. N.J.S.A. 45:19-31b.
The Superintendent is also authorized to promulgate rules and regulations necessary to implement the BHLA. N.J.S.A. 45:19-40. On this score, the Superintendent may deny a licensure application when, among other things,
6) [t]he person . . . has knowingly made a false material statement or omitted information in an application or any other form required by the Superintendent under the rules in this chapter;
7) [t[he person . . . has demonstrated bad moral character, incompetence, or untrustworthiness; or
8) [t]he Superintendent determines that good cause exists to deny, revoke, suspend, or refuse, renewal of a bounty hunter license in the interest of public safety.
[N.J.S.A. 13:55B-2.7(a).]
Here, Dagostino was denied licensure because of his failure to demonstrate the requisite good character based on the information and the lack thereof on his application form. Specifically, Dagostino answered "no" to the question "have you ever been convicted of any other crime or offense?" even though he had pled guilty to the Newfield charge of impersonating a public servant just four days before. At the administrative hearing, Dagostino had no reasonable explanation as to why he answered "no," instead of "yes." The ALJ found that Dagostino's answer was incorrect and that the explanation he offered at the hearing was "less than convincing." Moreover, after he successfully retracted his guilty plea just months after submitting his license application and while that application was pending investigation, Dagostino failed to notify the NJSP that the impersonation charge had been reopened and the matter remanded to the municipal court for disposition, thus rendering his response to Question No. 5 about the pendency of any outstanding charges against him no longer correct. As such, the ALJ properly concluded that Dagostino did not demonstrate that "he has the moral fortitude and honest character that are required of a person seeking" a bounty hunter license.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION