Opinion

Sonic Services, Inc. v. PA Gaming Control Board

Court
Commonwealth Court of Pennsylvania
Filed
Oct 9, 2019
Status
Published
On the bench
Brobson, J.
Cited by
0 cases
Authority
More cited than 9.2%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sonic Services, Inc., :

Petitioner :

:

v. : No. 1698 C.D. 2018

: Argued: September 10, 2019

Pennsylvania Gaming Control Board, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE BROBSON FILED: October 9, 2019

Petitioner Sonic Services, Inc. (Sonic Services) petitions for review of

an adjudication by the Pennsylvania Gaming Control Board (Board) dated

November 28, 2018, revoking Sonic Services’ Gaming Service Provider1

Registration (Registration). For the reasons that follow, we affirm.

1

Section 1103 of the Pennsylvania Race Horse Development and Gaming Act (Act), 4 Pa.

C.S. § 1103, defines a “Gaming service provider” as follows:

“Gaming service provider.” A person that is not required to be licensed as a

manufacturer, supplier, management company or gaming junket enterprise under

this part and:

(1) provides goods or services, including, but not limited to, count room

equipment, to a slot machine licensee or an applicant for a slot machine

license for use in the operation of a licensed facility; and

(2) provides goods or services to a slot machine licensee or an applicant for

a slot machine license that requires access to the gaming floor or a

gaming-related restricted area of a licensed facility.

I. BACKGROUND

Michael Giammarino (Giammarino) formed Sonic Services in 1988,

and he is the corporation’s sole owner. (Reproduced Record (R.R.) at 787.)2 On

August 10, 2016, the Board approved Sonic Services as a Registered Gaming

Service Provider, thereby permitting Sonic Services to provide restaurant-related

services to an affiliate of Parx Casino (Parx). (R.R. at 785.) Months after the Board

made this approval, the Board’s Bureau of Investigations and Enforcement (BIE)

received information alleging that Sonic Services and/or Giammarino had ties to

organized crime. (Id.) BIE investigated the veracity of the claims for a year, after

which the Board’s Office of Enforcement Counsel (OEC) filed an enforcement

action seeking to revoke Sonic Services’ Registration. (Id.) According to the

enforcement action, BIE’s investigation revealed that Sonic Services, through

Giammarino, had associations with members of organized crime and, therefore, is

not a suitable party for a registration pursuant to Section 1202(b)(23) of the Act,

4 Pa. C.S. § 1202(b)(23), and Sections 421a.1(h)-(i) and 421a.2(a)(4) of the Board’s

regulations, 58 Pa. Code §§ 421a.1(h)-(i) and 421a.2(a)(4). 3 (Id. at 7-8.)

2

The reproduced record in this matter follows a numbering format of “RR 1, RR 2,” etc.,

and is not in compliance with Pennsylvania Rule of Appellate Procedure 2173, which directs the

pages of the reproduced record to be numbered using Arabic numerals followed by a lower case

letter “a”—i.e., “1a, 2a, 3a,” etc. When citing to the page numbers of the reproduced record herein,

we shall omit the “RR” preceding the page number.

3

Sections 421a.1(h) and (i) of the Board’s regulations provide:

(h) An applicant shall at all times have the burden of proof. It shall be the

applicant’s affirmative responsibility to establish the facts supporting its suitability

under the act and this part by clear and convincing evidence, including why a

license, permit, certification, registration or authorization should be issued or

renewed by the Board.

2

The Board’s Office of Hearings and Appeals (OHA) conducted a

hearing on this matter on May 15, 2018, after which Hearing Officer Jay Lantzy

issued a Report and Recommendation (Recommended Report), concluding that

OEC “failed to prove by a preponderance of the evidence that Giammarino’s

associations make Sonic Services unsuitable for a [r]egistration.” (Id. at 697.) OEC

filed exceptions to the Hearing Officer’s Recommended Report, arguing that the

evidence OEC presented clearly established that Giammarino’s associations made

Sonic Services unsuitable for a registration. (Id. at 786.) On October 31, 2018, at a

public meeting before the Board, the Board permitted Sonic Services and OEC to

present briefly their oral arguments concerning this matter. (Id. at 787.) During a

public meeting on November 28, 2018, the Board voted to grant the relief requested

in OEC’s enforcement action and revoke Sonic Services’ Registration. (Id. at 784.)

On December 7, 2018, the Board issued findings of fact and conclusions of law in

support of its adjudication. (Id. at 785-805.)

(i) A person holding a license, permit, certification, registration or authorization

issued by the Board shall have a continuing duty to maintain suitability and

eligibility in accordance with the act and this part.

58 Pa. Code §§ 421a.1(h)-(i).

Section 421a.2(a)(4) of the Board’s regulation provides:

(a) An application for issuance or renewal of a license, permit, certification,

registration or authorization may be denied, or a license, permit, certification,

registration or authorization may be suspended or revoked if:

....

(4) The applicant for or holder of a license, permit, certification, registration

or authorization has misrepresented, falsified or omitted a fact in the

application for licensure or renewal.

58 Pa. Code § 421a.2(a)(4).

3

The Board’s relevant findings of fact reveal that in 1996, Giammarino’s

mother and Giammarino’s stepfather, John Brescio (Brescio), reopened Lombardi’s,

a historic pizzeria located in the Little Italy section of New York City. (Id.

at 787-88.) Lombardi’s is owned by the corporate entity Pizza of 32 Spring Street,

Inc. (Id. at 788.) Giammarino’s mother was the sole shareholder of Pizza

of 32 Spring Street, Inc. until her death. (Id.) Brescio is a reputed captain in the

Genovese crime family with at least seven criminal convictions prior to 1986. (Id.)

In making that finding, the Board relied, in part, upon testimony from an investigator

for the Waterfront Commission of New York Harbor that Brescio was, and continues

to be, affiliated with organized crime. (Id.) From 1988 to 1998, Sonic Services only

sold and installed security, intercom, telephone, and music systems. (Id. at 787.)

In 1998, Giammarino transitioned Sonic Services away from selling and installing

technological systems and into the restaurant industry by opening a second

Lombardi’s location in Philadelphia. (Id. at 788.) In 2004, Giammarino closed the

Lombardi’s in Philadelphia and began managing the New York location. (Id.)

In 2011, Giammarino’s mother died intestate, leaving ownership in

Pizza of 32 Spring Street, Inc. to Brescio. (Id. at 789.) The next year, Brescio

transferred his ownership of Pizza of 32 Spring Street, Inc. to JBJV Trust (Trust),

which is now the sole shareholder of Pizza of 32 Spring Street, Inc. (Id.) In forming

the trust, Brescio named Giammarino as the sole beneficiary. (Id.) Brescio retained

the power to appoint additional beneficiaries and replace the trust protector, who,

under the terms of the Trust, may replace the trustee and veto investment decisions.

(Id.) Furthermore, the trustee must obtain approval from the trust protector for

investments larger than $15,000. (Id.) Peter Cordua, who has served as

Giammarino’s accountant and as the accountant for Pizza of 32 Spring Street, Inc.,

4

is the sole trustee for the Trust. (Id.) Giammarino also serves as the President of

Pizza of 32 Spring Street, Inc. (Id.) After transferring his ownership interest in Pizza

of 32 Spring Street, Inc., Brescio represented to the media that he owned Lombardi’s.

(Id.) Lombardi’s employees also named Brescio as the owner of Lombardi’s in a

lawsuit against the pizzeria in 2006. (Id.)

In 2014, Parx officials became interested in adding new dining options

to their casino and met with Joseph DeSimone (DeSimone), a frequent customer at

the casino, to discuss DeSimone’s contacts in New York City’s restaurant industry.

(Id. at 790.) Unbeknownst to Parx officials at the time, DeSimone had multiple

criminal convictions, was a reputed member of the Bruno/Scarfo crime family, and

went by the street name “Joe Fudge.” (Id.) Paul Greco, the General Manager of

Parx, introduced DeSimone to the other Parx officials. (Id.) DeSimone later

introduced the Parx officials to John DeLutro (DeLutro), who owned Caffé Palermo,

a pastry shop in the Little Italy section of New York City. (Id.) Weeks later, the

Parx officials travelled to Caffé Palermo to meet with DeLutro. (Id.) After the

meeting, DeLutro took the officials to Lombardi’s where Brescio gave the officials

a tour of the restaurant and served them pizzas. (Id.) Based on the success of the

meetings, the Parx officials decided to offer Caffé Palermo and Lombardi’s the

opportunity to set up establishments at the casino. (Id.) Chief Executive Officer for

Parx, Anthony Ricci (Ricci), contacted DeLutro to express interest in having Caffé

Palermo and Lombardi’s on site at Parx’s casino. (Id.) DeLutro expressed Ricci’s

interest to Giammarino, who managed the Lombardi’s in New York City, and

Giammarino expressed that he had no interest in having a close business relationship

with DeLutro. (Id. at 791.) DeLutro and Giammarino were acquainted with each

other since they operated businesses near to each other in Little Italy, but, according

5

to Giammarino, the two men only had approximately six interactions with each other

throughout their years of acquaintance. (Id.) Parx soon after discovered that

DeLutro had two drug-related criminal convictions, was a reputed member of the

Gambino crime family, and was known by his street name “Baby John.” (Id.) After

learning of DeLutro’s criminal history, Parx no longer had interest in any business

dealings with DeLutro or Caffé Palermo. (Id.)

DeSimone and Giammarino met, apparently for the first time, in 2015.

(Id. at 792.) At that time, DeSimone informed Giammarino that the Parx officials

were still interested in having Lombardi’s at their casino and offered to set up a

meeting between Giammarino and the officials. (Id.) At that time, Giammarino

operated three pizzerias: two Gennaro’s Tomato Pie locations in Philadelphia and

Lombardi’s in New York City. (Id.) That same year—in 2015—DeSimone

introduced Giammarino to Parx’s General Manager, Paul Greco, after which

Giammarino and Parx entered into business negotiations in order to place a

Lombardi’s location at the casino. (Id.) During the negotiations, Giammarino

expressed that DeSimone would not be his business partner in the enterprise but that

he would pay DeSimone a finder’s fee. (Id.) On April 28, 2016, Sonic Services

contracted with Parx to assist in establishing a pizzeria at the casino. (Id.) According

to the agreement, Parx staff would run the pizzeria and Sonic Services, through

Giammarino, would aid in design, management, recipes, recruitment, and other

related services. (Id.) Subsequently, on February 1, 2017, Pizza of 32 Spring Street,

Inc. entered into a consulting and marketing agreement with Brescio’s entity, F&J

Solutions. (Id.)

On December 21, 2017, after BIE received information concerning

Giammarino’s alleged ties to organized crime and after conducting a year-long

6

investigation into those claims, OEC filed its enforcement action. (Id. at 794.) As

a result of OEC’s filing, Parx officials evicted DeSimone from its establishment,

terminated its agreement with Sonic Services, paid to Sonic Services $155,000 for,

inter alia, services rendered, and returned all artwork or images related to

Lombardi’s that Sonic Services had loaned to Parx pursuant to its agreement with

Sonic Services. (Id.) On February 20, 2018, Giammarino, through Pizza

of 32 Spring Street, Inc., terminated the consulting and marketing agreement with

Brescio’s entity, F&J Solutions. (Id.) The next month, on March 13, 2018, Brescio

irrevocably relinquished all retained rights related to the Trust. (Id.)

On May 25, 2018, at the hearing before the Hearing Officer,

Giammarino testified that his interactions with Brescio, his stepfather, have been

very limited since his mother’s death. (Id. at 793.) Brescio also had no role in

managing Lombardi’s since Giammarino took over managing the pizzeria in 2004.

(Id.) When asked why Brescio would hold himself out to be the owner of

Lombardi’s, Giammarino stated: “I mean, my wife says she’s the owner of my

business. My son says the same thing. I said the same thing about [the] New York

[location] even before I was in this position. We’re a family. I mean, people – you

know, people – you’re proud. You brag.” (Id.) Giammarino later admitted that he

allowed Brescio to “handle the media” for Lombardi’s. (Id.) Brescio, however, had

no part in the agreement between Sonic Services and Parx. (Id.) Thereafter, at the

October 31, 2018 public meeting before the Board, Giammarino opted to address the

Board personally instead of permitting his counsel to present oral argument. (Id.)

In doing so, Giammarino stated, in relevant part:

ii. “In 2004, my mother wanted to retire and my stepfather

. . . at the time was having some trouble with his heart

and they asked me to take the place over.”

7

iii. “I took the place over and the only thing that I let

[Brescio] . . . continue to do was handle media which

is something he did during the whole time that he was

there.”

iv. “In 2011, my mother passed away, I then became

President of [Pizza of 32 Spring Street, Inc.] and I

continued with that same relationship with him . . . in a

more of like a part-time few hours a month type

relationship.”

....

vi. “He had no managerial duties, nothing at all. It was

just these-these media appearances because that was

what he was doing over the years.”

....

ii. “I don’t socialize with the guy. I don’t have any

business dealings with him, all I do is go to work and I

run the business.”

....

iv. “[The association with m]y stepfather was the only one

that’s problematic.”

(Id. at 795-96.) Based on the findings of fact, the Board concluded that the OEC

met its burden to prove that Sonic Services’ associations, through Giammarino,

compromise the public’s confidence in the integrity of gaming in this

Commonwealth. (Id. at 805.) Sonic Services then filed the instant petition with this

Court.

II. ISSUES

On appeal,4 Sonic Services argues that the Board committed an error of

law in concluding that Sonic Services, through Giammarino, is unsuitable for a

This Court’s scope of review of an agency’s adjudication is limited to determining

4

whether the agency committed an error of law or violated any constitutional rights, and whether

any necessary factual findings are not supported by substantial evidence. 2 Pa. C.S. § 704; Rubino

8

registration because: (1) there is a lack of substantial evidence to support a finding

that Giammarino had associations with DeSimone, DeLutro, and Brescio; (2) the

Board committed an error of law in failing to consider Giammarino’s disassociation

with Brescio as evidence that the two men were no longer associates;5 and (3) in the

alternative, if there is substantial evidence to support such a finding as it relates to

Brescio, the Board committed an error of law in concluding that Giammarino’s

association with Brescio would undermine the public’s trust in the integrity of the

gaming system.

III. DISCUSSION

A. Associations with DeSimone, DeLutro, and Brescio

Sonic Services first argues that there is a lack of substantial evidence to

support the finding that Giammarino had associations with DeSimone, DeLutro, and

Brescio. The Board, on the other hand, maintains that there is substantial evidence

to support the finding.

Section 1202(b)(23) of the Act prohibits the Board from approving or

renewing, inter alia, registrations unless the following requirements are satisfied:

[T]he applicant has demonstrated by clear and convincing

evidence that the applicant is a person of good character,

honesty and integrity and is a person whose prior

activities, criminal record, if any, reputation, habits and

associations do not pose a threat to the public interest or

the effective regulation and control of slot machine

operations, table game operations, interactive gaming

operations, casino simulcasting or sports wagering, or

create or enhance the danger of unsuitable, unfair or

illegal practices, methods and activities in the conduct of

v. Pa. Gaming Control Bd., 1 A.3d 976, 980 n.7 (Pa. Cmwlth. 2010), appeal denied, 16 A.3d 504

(Pa. 2011).

5

Though Sonic Services’ second argument does not appear separately in its brief, we will

treat it as such for purposes of our analysis.

9

slot machine operations, table game operations, interactive

gaming operations, casino simulcasting or sports wagering

or the carrying on of the business and financial

arrangements incidental thereto.

(Emphasis added.) The Act6 does not provide a definition of the terms “association”

or “associate.” As this Court explained in Hankin v. Upper Moreland Township,

503 A.2d 109, 111 (Pa. Cmwlth. 1986), “[w]here the statute . . . does not specifically

define the term sought to be construed, and the words are ones in common usage,

they are to be given their common usage meaning.” Webster’s Third New

International Dictionary defines “associate” as, inter alia, “to join often in a loose

relationship as a partner, fellow worker, colleague, friend, companion, or ally[;] . . .

to keep company with[;] . . . closely connected, joined, or united with another[;] . . .

one who is frequently in company with another.” Webster’s Third New International

Dictionary 132 (1993). According to Black’s Law Dictionary, an “associate” is a

“colleague or companion.” Black’s Law Dictionary 140 (9th ed. 2009). The term

“association” on the other hand, seems to indicate a sort of union or organization of

individuals. See Webster’s Third New International Dictionary 132 (1993) (“the act

or action of associating[;] . . . an organization of persons having a common interest”);

Black’s Law Dictionary 141 (9th ed. 2009) (“[a] gathering of people for a common

purpose”).

1. DeSimone

According to the Board’s findings of fact, Giammarino testified that he

first met DeSimone at the meeting in which DeSimone indicated that Parx officials

were still interested, after deciding not to pursue business with DeLutro, in having a

Lombardi’s pizzeria in Parx’s casino. (R.R. at 791-92.) Giammarino also indicated

6

4 Pa. C.S. §§ 1101-1904.

10

that he would pay DeSimone a finder’s fee for initiating the business relationship

between Parx and Sonic Services. (Id. at 792.) The record does not indicate that

Giammarino and DeSimone had any other encounters outside of DeSimone seeking

out Giammarino to introduce him to the Parx officials. Due to the tenuous

connection between Giammarino and DeSimone, evidenced by the sole meeting and

sole promise between the two men, there is a lack of substantial evidence to support

the Board’s finding that DeSimone is Giammarino’s associate for purposes of the

Act.

2. DeLutro

With respect to Giammarino’s connection to DeLutro, the Board’s

findings of fact explain that Giammarino described his relationship with DeLutro as

an acquaintanceship. (R.R. at 791.) Giammarino also testified that he and DeLutro

had approximately six interactions over a number of years because each owned

establishments in the Little Italy section of New York City. (Id.) Further,

Giammarino expressly refused to enter into a close business relationship with

DeLutro when Parx expressed interest in having Caffé Palermo and Lombardi’s

locations at Parx’s casino. (Id.) Given the findings that Giammarino had no desire

to be in the proposed business relationship with DeLutro and that the two men had

very few interactions over the many years the two men operated businesses in the

same vicinity, we conclude that there is a lack of substantial evidence to support the

Board’s finding that DeLutro and Giammarino are associated for purposes of the

Act.

3. Brescio

Brescio’s relationship with Giammarino, on the other hand, seems to

present layers of business and personal connections between the two men. Brescio

is Giammarino’s stepfather. (R.R. at 787.) After Giammarino’s mother died,

11

Brescio created the Trust, made Giammarino the sole beneficiary, and transferred all

of his interest in Pizza of 32 Spring Street, Inc. into the Trust. (Id. at 789.) In

forming this Trust, Brescio retained the power to appoint other beneficiaries and

replace trust protectors, the latter of which have the authority to veto investment

decisions and approve or deny investments greater than $15,000. (Id.) While

Giammarino served as President of Pizza of 32 Spring Street, Inc., the entity entered

into a consulting and marketing agreement with F&J Solutions, an entity owned by

Brescio. (Id. at 792.) Despite Sonic Services’ disavowal of any close connection

between Giammarino and Brescio, given the extent of power Brescio maintained

over the Trust, the hand Brescio still had in the media relations of Lombardi’s, and

the familial tie, the two men were, at the very least, “join[ed] . . . in a loose

relationship as [] . . . colleague[s].” Webster’s Third New International

Dictionary 132 (1993). Accordingly, there is substantial evidence to support the

Board’s finding that Giammarino and Brescio were associates at least at all times

relevant to the investigation.

We, therefore, conclude that of the three possible associates—i.e.,

DeSimone, DeLutro, and Brescio—substantial evidence exists to support only the

finding that Sonic Services, through Giammarino, was associated with Brescio for

purposes of the Act. Given this conclusion, we now turn to a discussion of whether

this association “pose[s] a threat to public interest or the effective regulation and

control of” or “create[s] or enhance[s] the danger of unsuitable, unfair or illegal

practices, methods and activities” in the gaming industry in this Commonwealth.

4 Pa. C.S. § 1202(b)(23).

B. Effect of Giammarino’s Disassociation with Brescio

Sonic Services argues that the Board, when determining whether

Giammarino and Brescio were “associates” for purposes of the Act, committed an

12

error of law in failing to consider Giammarino’s act of disassociating himself from

Brescio after notice of OEC’s enforcement action against Sonic Services. In

response, the Board contends that Giammarino’s act of disassociating with Brescio

is immaterial to a determination of whether the two men were associates. We agree

with the Board’s contention.

Sonic Services points to Section 1312 of the Act, 4 Pa. C.S. § 1312, to

support its argument. Section 1312 of the Act provides, in relevant part:

In the event that any slot machine license application is

not approved by the board based on a finding that an

individual who is a principal or has an interest in the

person applying for the license does not meet the

character requirements of [S]ection 1310 (relating to slot

machine license application character requirements) or

any of the eligibility requirements under this part, or a

person who purchases a controlling interest in a licensed

gaming entity in violation of [S]ection 1328 (relating to

change in ownership or control of slot machine licensee),

the board may afford the individual the opportunity to

completely divest his interest in the person, its affiliate,

intermediary, subsidiary or holding company seeking the

license and, after such divestiture, reconsider the person’s

or applicant’s suitability for licensure in an expedited

proceeding and may, after such proceeding, issue the

person or applicant a slot machine license. The board

shall approve the terms and conditions of any divestiture

under this section. Under no circumstances shall any

divestiture be approved by the board if the compensation

for the divested interest exceeds the cost of the interest.

(Emphasis added.)

Based on our reading of this particular statutory section, the divestiture

procedure described above is quite unlike the situation presented in this matter.

First, Section 1312 of the Act pertains to persons applying for a slot machine license

or persons who purchase a controlling interest in a licensed gaming entity in

13

violation of Section 1328 of the Act, 4 Pa. C.S. § 1328. As to those persons,

Section 1312 of the Act authorizes the Board to exercise the discretionary power to

permit individuals who fail to meet the character or eligibility requirements to divest

their interest in the person applying for or holding the license at issue, subject to

Board approval. Here, Sonic Services is a registered Gaming Service Provider.

Thus, Section 1312 of the Act is inapplicable. Further, we find no statutory provision

in the Act that mandates or gives discretion to the Board to consider divestiture in

revoking a registration upon concluding that a registrant’s association renders the

registrant unsuitable to retain its registration. Consequently, the Board did not

commit an error of law in refusing to consider Giammarino’s and Brescio’s

disassociation when determining whether the two men were associated.

C. Effect of Association on Public Trust in the Integrity of Gaming

In the alternative, Sonic Services argues that if there is substantial

evidence to support a finding that Brescio was Giammarino’s associate, the Board

committed an error of law in concluding that Giammarino’s association with Brescio

would undermine the public’s trust in the integrity of gaming. Specifically, Sonic

Services argues that the association with Brescio would not undermine the public’s

trust in the integrity of gaming because (1) neither Sonic Services nor Giammarino

were involved in Parx’s gaming operations; (2) Brescio had no control or influence

over Sonic Services; and (3) Giammarino had no actual knowledge of Brescio’s

reputed ties to organized crime. The Board contends that Sonic Services’

involvement in the gaming industry, because of Giammarino’s association with

Brescio, would cause the public to lose trust in the integrity of gaming in this

Commonwealth.

Our research has revealed that no court in this Commonwealth has

issued an opinion addressing this issue. New Jersey’s Appellate Court, in In re Hotel

14

and Restaurant Employees and Bartenders International Union Local 54,

496 A.2d 1111 (N.J. Super. App. Div. 1985) (International Union Local 54), cert.

denied, 475 U.S. 1085 (1986), has considered whether applicants for casino-related

registration were unsuitable for licensure due to associations with individuals

reputedly connected with organized crime. We find the discussion in this case

persuasive.

In International Union Local 54, the court addressed the question of

whether certain members of a union associated with the casino industry in New

Jersey were suitable for continued registration under the state’s Casino Control Act.7

Int’l Union Local 54, 496 A.2d at 1116. New Jersey’s Casino Control Act mandates

that applicants who are “associate[s] of a career offender or a 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 Casino Control Act]” be denied

licensure. N.J. Stat. 5:12-86(f). The court concluded that, in relevant part: (1) New

Jersey’s Casino Control Commission correctly found that two union officers were

associated with career offenders, at least one of whom was a member of organized

crime; and (2) such associations created an “unacceptable risk of corruption.” Int’l

Union Local 54, 496 A.2d at 1140.

In coming to its conclusion, the court discussed the policies that the

Casino Control Act intends to serve and explained that “public confidence and trust

in the credibility and integrity of the regulatory process of casino operations . . . and

the exclusion from participation in the casino industry of persons with known

criminal records . . . or associations” are two such policies. Id. at 1127. Further, the

main query in determining the effect of the offending association on the public’s

7

N.J. Stat. §§ 5:12-1 to -233.

15

trust is not whether the association is “lawful or ethical, but rather what impact such

associations have on the policies intended to be served by casino gaming regulation.”

Id. Based on the fact that the two union officers had these offending associations,

the court determined that the union officers’ continued participation in the casino

industry created a risk that the industry would be corrupted, which would necessarily

affect the industry’s credibility in the eyes of the public.

Here, similar to New Jersey’s Casino Control Act, the Act requires that

its mandates be carried out in recognition of the public policy purposes the Act was

meant to serve. Section 1102 of the Act, 4 Pa. C.S. § 1102, outlines the public policy

purposes to be served by the Act, one of which provides: “The primary objective of

this part to which all other objectives and purposes are secondary is to protect the

public through the regulation and policing of all activities involving gaming and

practices that continue to be unlawful.” Despite Sonic Services’ contentions that the

public would not lose confidence in the integrity of gaming because (1) it has no

involvement in Parx’s gaming services; (2) Brescio has no control over Sonic

Services; and (3) Sonic Services, through Giammarino, had no actual knowledge of

Brescio’s ties to organized crime, such considerations do not factor into this

determination. The court’s discussion in International Union Local 54 is

particularly persuasive in that our main focus must be on the effect that the offending

association has on the policies to be served by the Act—i.e., protecting the public

through ensuring the integrity of gaming in this Commonwealth. Given that the

Board found that Sonic Services, through Giammarino, associated with a figure who

is a reputed member of an organized crime ring, the Board did not err in concluding

that such an association would tarnish the integrity of gaming to the public.

16

IV. CONCLUSION

Based on the discussion above, we affirm the Commission’s

adjudication in so much as it concludes that Sonic Services is an unsuitable party for

registration due to its association, through Giammarino, with Brescio.

P. KEVIN BROBSON, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sonic Services, Inc., :

Petitioner :

:

v. : No. 1698 C.D. 2018

:

Pennsylvania Gaming Control Board, :

Respondent :

ORDER

AND NOW, this 9th day of October, 2019, the order of the Pennsylvania

Gaming Control Board (Board) is affirmed only with respect to the Board’s

conclusion that Sonic Services, Inc. is an unsuitable party for a registration under

the Pennsylvania Race Horse Development and Gaming Act due to its association,

through Michael Giammarino, with John Brescio.

P. KEVIN BROBSON, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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