Meredith E. EICHER v. LOUISIANA STATE POLICE, RIVERBOAT GAMING ENFORCEMENT DIVISION.
No. 97 CA 0121.
Court of Appeal of Louisiana, First Circuit.
February 20, 1998.
Writ Denied May 8, 1998.
710 So. 2d 799
Before GONZALES, PARRO and GUIDRY, JJ.
Hillar C. Moore, III, Andrew J. Hodges, IV, Baton Rouge, for Plaintiff-Appellee, Meredith E. Eicher.
PARRO, Judge.
The Louisiana State Police, Riverboat Gaming Enforcement Division (“the Division“) revoked a temporary permit it had granted to Meredith Eicher (“Ms. Eicher“) which allowed her to work as a gaming employee at a riverboat casino. She appealed the revocation through an administrative process that upheld the decision. Eventually, Ms. Eicher petitioned for judicial review in the district court, where the decision was affirmed by the court. After granting a motion for a new trial, the court reversed its initial judgment and ordered the Division to reinstate Ms. Eicher‘s permit. The Division appeals this judgment. We reverse and render.
FACTUAL AND PROCEDURAL HISTORY
The facts of this matter are uncontested. In May 1990, in connection with the highly publicized failure of Champion Insurance Company, Ms. Eicher pled guilty to two counts of aiding and abetting mail fraud, a federal felony offense. She was sentenced to pay a fine of $5000, to serve five months imprisonment, and upon release, to be on supervised probation for two years. In May 1991, based on the same occurrences which led to her conviction on the federal charges, she pled guilty in state court to two counts of accessory after the fact to forgery. She was sentenced to one year of imprisonment at hard labor, which was suspended, and she was placed on probation, to be served concurrently with the federal probation under the supervision of the federal probation office. She fulfilled all the conditions of her sentences and in May 1993, her state convictions were set aside and the prosecutions dismissed, pursuant to
During the summer of 1994, Ms. Eicher participated in six to eight weeks of casino dealer school at the Belle of Baton Rouge casino. She completed the dealer training ranked in the upper quadrant of her class and in August 1994, completed a gaming employee permit application. On the application, she listed all of the federal and state convictions and wrote “expungement/dismissal” in brackets to the right of these offenses. She also listed an Alabama charge of theft and showed this was “never prosecuted — charges formally dismissed.” Another set of brackets suggested all three charges “arose out of same offense.”
On September 11, 1994, the Louisiana State Police conducted a registration day to review the gaming permit applications and interview prospective casino employees under oath. Because Ms. Eicher‘s application indicated she had a criminal record, she was directed to a special table to provide additional information. Trooper Adam White, who interviewed her, was familiar with her case because he had been involved in her initial arrest. She offered him copies of both plea agreements, as well as other documents she had brought, which showed the nature and disposition of the federal and state convictions. But Trooper White just took notes concerning their conversation and did not examine her documents or make copies of them. At the conclusion of this process, Ms. Eicher signed a conditional approval agreement and was granted a temporary work permit. The conditional approval agreement acknowledged that the work permit was conditioned upon a personal background investigation by the Louisiana State Police, at the
On the basis of her temporary work permit, Ms. Eicher began working at the Belle of Baton Rouge. Several days after the casino opened, a local television station broadcast a story criticizing the riverboat casino and the Louisiana State Police for allowing Ms. Eicher, a known convicted felon, to work as a craps dealer. After this story aired, two state troopers approached her at work and pulled her temporary work permit because of her felony convictions, pending further investigation. She was later sent a “Notice of Denial,” stating her temporary permit was revoked and no permanent license would be issued to her because she had been convicted of a felony offense and because she had made an omission or misstatement of fact on her application.
At Ms. Eicher‘s request, an administrative hearing was held to consider her appeal of this decision. On the basis of the testimony and documentary evidence presented at that hearing, the hearing officer found she had not misrepresented the facts concerning her criminal record on her application. However, he upheld the denial of her work permit on the basis that her criminal convictions disqualified her for employment in the gaming industry. On appeal to the Louisiana Riverboat Gaming Commission (“the Commission“), the decision was upheld, and Ms. Eicher filed a petition for judicial review in the Nineteenth Judicial District Court.
The district court judge reviewed the record of the administrative proceedings and briefs submitted by the parties. After hearing oral arguments, the court affirmed the decision of the Commission. Ms. Eicher filed a motion for new trial, which was granted by the court in a hearing on September 30, 1996. During that hearing, the court reversed its prior judgment and ruled that, under the facts of this case, the Commission and Division should be estopped from revoking Ms. Eicher‘s work permit. The judgment directed the reinstatement of her permit. The Division and the Commission‘s successor, the Louisiana Gaming Control Board, filed this suspensive appeal.2
STANDARD OF REVIEW
Any person whose application for a gaming permit has been denied by the Division may appeal to the Commission.
ANALYSIS
New Trial or Rehearing
The Division argues that the district court had insufficient grounds to grant the motion for new trial, and therefore the court‘s initial judgment, which affirmed the Commission, should be reinstated. When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court.5 See
In Ms. Eicher‘s case, the motion for new trial did not request a “new trial,” in the sense of the district court re-trying the case, which is clearly impermissible under
Estoppel
In oral reasons for judgment, the district court explained its decision to reverse the initial judgment on the basis of estoppel, stating:
The thing that really bothers the court about this whole thing is the facts of this case. It‘s the way the thing was handled at the outset. I don‘t know why she ever received the temporary permit to begin with. If in fact they had this problem, then why didn‘t they go review it and decide if they were going to issue licenses to people or not issue licenses to them. Instead they issued the license knowing full well about her situation because they had the same trooper there.... I will go ahead and rule. I think that based on the specific facts of this case, ... the Division should be estopped from revoking the license.... I think the key to this thing is that at the time the state had before it the information that it needed.... [T]o issue the permit at that point and then come
back and yank it later, they should be estopped from doing that.
All of the parties involved in this appeal have acknowledged that the district court‘s decision to base its judgment on the grounds of estoppel may not have been legally sound, and we agree it was not.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee‘s reliance on the promise.
Before the effective date of Article 1967 in 1985, the Louisiana Supreme Court had recognized three elements required for application of detrimental reliance or equitable estoppel as: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one‘s detriment because of the reliance. See Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 25, and cases cited therein. The supreme court has also noted that estoppel is not favored in our law, and properly applies only as to representations of fact. Morris, 663 So.2d at 25; State v. Mitchell, 337 So.2d 1186, 1188 (La.1976). The representation required for the application of equitable estoppel is usually characterized as a “misrepresentation,” which generally implies intent and suggests deliberate falsification. Hammons v. ABB C-E Services, Inc., 94-2444 (La.App. 1st Cir. 10/6/95), 671 So.2d 370, 377 (Shortess, J., concurring). A misrepresentation of law does not generally invoke equitable estoppel. Quality Finance Co. v. Mitchell, 423 So.2d 1262, 1266 (La.App. 1st Cir. 1982). It has also been suggested that when invoking the doctrine against a governmental agency, a somewhat greater burden may be appropriate. Such a case would involve (1) unequivocal advice from an unusually authoritative source; (2) reasonable reliance on that advice by an individual; (3) extreme harm resulting from that reliance; and (4) gross injustice to the individual in the absence of judicial estoppel. See Gulf States Utilities Co. v. Louisiana Pub. Serv. Comm‘n, 92-1185 (La.3/17/94), 633 So.2d 1258, 1266 (Dennis, J., concurring).
The factual situation before this court simply does not justify application of estoppel, and the district court‘s reliance on this principle in this case was legal error. Any misunderstanding that occurred in this case concerned the proper application of the law; there was no misrepresentation of fact. Ms. Eicher was aware from the outset that, because of her felony convictions, the law might preclude her employment in the gaming industry. She testified that she telephoned the Division before taking the dealer‘s classes to explain her situation and find out if she had any chance of being hired, and was told by someone who answered the phone that each application would be considered on its own merits. This does not constitute unequivocal advice from an unusually authoritative source, and any reliance she may have placed on this statement was not justified. Further, when she submitted her application and was approved for a temporary permit, its conditional nature was clearly spelled out in the agreement which she read and signed. Finally, even if the district court was correct in suggesting that the temporary permit should never have been granted, the failure of public officers to correctly enforce statutory provisions should not be permitted to inhibit correct administration of the law or be construed to estop more diligent enforcement. See State v. Exxon Corp., 95-2501 (La.App. 1st Cir. 6/28/96), 676 So.2d 783, 787. Accordingly, the district court erred in ordering the Division to reinstate Ms. Eicher‘s work permit on the basis of estoppel.
Effect of Constitutional and Statutory First Offender Pardons
The hearing officer found Ms. Eicher did not make any misleading statements about her criminal convictions on her application, so the Division‘s revocation of her temporary work permit on this basis was inappropriate. The record fully supports the factual finding that Ms. Eicher was completely forthcoming with information and documentary evidence concerning her criminal record. Further,
However, the hearing officer affirmed the Division‘s decision to revoke Ms. Eicher‘s temporary work permit and to deny her application for a permanent gaming employee permit because Ms. Eicher had criminal convictions. In written conclusions of law, he reviewed the applicable constitutional and statutory provisions having a bearing on these facts. The Division‘s decision to revoke Ms. Eicher‘s license was based on
The division shall not award a license or permit to any person who is disqualified on the basis of any of the following criteria:
....
(3) The conviction of or a plea of guilty or nolo contendere by the applicant, or of any person required to be qualified under this Chapter as a condition of a license, for an offense punishable by imprisonment of more than one year.6
This statute, which was first enacted and became effective in 1991, stands in apparent contradiction to earlier legislation, found in
A. Notwithstanding any other provisions of law to the contrary, a person shall not be disqualified, or held ineligible to practice or engage in any trade, occupation, or profession for which a license, permit or certificate is required to be issued by the state of Louisiana or any of its agencies or political subdivisions, solely because of a prior criminal record, except in cases in which the applicant has been convicted of a felony, and such conviction directly relates to the position of employment sought, or to the specific occupation, trade or profession for which the license, permit or certificate is sought.
In subsequent paragraphs, this statute indicates that if an agency decides to prohibit an applicant from engaging in an occupation because of a prior criminal conviction, that decision must be in writing and may be appealed under the provisions of the Administrative Procedure Act.
In reaching his decision reconciling the apparent contradictions in these two statutes, the hearing officer stated:
[LSA-R.S.] 37:2950 cannot be read to prohibit the division from barring the employment of persons with certain convictions, namely those which are punishable by imprisonment of more than one year. To do so would render ineffective the later expression of the legislature in its clearly stated purpose of imposing strict controls on the legitimate gaming industry. The clear language of[LSA-R.S. 27:76(3)] not only permits, it requires division agents to reject applicants who have such a criminal record.
We agree with the hearing officer‘s interpretation and application of the two statutes in this case. The legislative branch is presumed to intend to achieve a consistent body of law. When the legislature enacts a statute without mentioning existing statutes on the same subject matter, the later act may, by
The conclusion of the hearing officer in this case gives effect to the later expression of legislative intent in
Our inquiry does not end there, however. As the hearing officer also noted, there are Louisiana constitutional provisions which have a bearing on this case.
The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor. (footnote omitted).
In addition to these constitutional provisions, for first offense non-capital felonies,
Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses.
Ms. Eicher pled guilty to federal and state felony charges and completed her sentences on both. She did not obtain a governor‘s pardon,9 but at the conclusion of her probationary period on the state conviction, the court granted her request to set her conviction aside and dismiss the prosecution on the state offense, pursuant to Article 893. Ms. Eicher argues that, because of this dismissal and set aside, her state felony conviction ceased to exist for purposes of the permitting qualification process. Although, short of a presidential pardon, there is no comparable provision which would dismiss or pardon the federal felony conviction, Ms. Eicher contends the constitutional provisions have the effect of restoring to her all state citizenship rights.
The hearing officer considered the relationship of the constitutional provisions and made the following determination:
The effect of the first offenders (sic) pardon has been the subject of debate, critical review, and more importantly, analysis by the Louisiana Supreme Court. The Court has distinguished the effects of [the] two aforementioned Louisiana Constitutional provisions and held that the effects of an automatic pardon may
be limited by the legislature. See State v. Wiggins, 432 So.2d 234 (La.1983). In Wiggins the Court held that certain rights of citizenship may be restricted by the state. A gaming permit is not a right of citizenship. The legislature specifically provided in
[LSA-R.S.] 4:502(B) in pertinent part that a gaming permit is ... “a pure and absolute [revocable] privilege and not a right, property or otherwise, under the constitutions (sic) of the United States or of the state of Louisiana.”10
We find no error in this analysis of the law.11 In the Wiggins case, the right to keep and bear arms, distinctly guaranteed by the United States and Louisiana Constitutions, was implicated.
CONCLUSION
Accordingly, we reverse the district court‘s judgment. Further, because we find no manifest error in the hearing officer‘s factual findings and no legal error in his application of the law, his decision must be, and is hereby, affirmed. All costs of this appeal are assessed against Ms. Eicher.
REVERSED AND RENDERED.