## Facts

- On February 7, 1990, David Wirtz fired a rifle at a police officer and a social worker who attempted to forcibly enter his boardinghouse room; Wirtz later said he mistakenly believed he was about to be sexually assaulted.
- After treatment, Wirtz was confined in a psychiatric hospital due to schizophrenia.
- Wirtz was charged with multiple felonies (including attempted murder) but was found not guilty by reason of insanity.
- The criminal court found Wirtz posed a danger to himself or others and ordered continued psychiatric confinement subject to periodic review.
- By 2000, Wirtz was permitted to live independently in the community while remaining under treatment and monitoring.
- Wirtz saw a psychiatric physician about every three months; the visits mainly verified that he continued taking prescribed medication.
- In August 2000, Wirtz obtained a casino service-employee registration from the New Jersey Casino Control Commission, allowing him to work at Bally’s Casino as a slot-marketing representative.
- After he later moved into a slot-service host position that required a license, the Commission granted him a temporary license, and he worked without incident.
- In May 2002, the New Jersey Division of Gaming Enforcement filed a complaint with the Commission seeking revocation of Wirtz’s registration and denial of his application for a permanent license.
- After a licensing hearing, the hearing examiner concluded Wirtz had not proven rehabilitation by clear and convincing evidence because there were no “safeguards” (such as surprise testing) to ensure ongoing medication compliance.
- The Commission adopted the hearing examiner’s reasoning and issued a final decision revoking Wirtz’s registration and denying the permanent license.
- Wirtz appealed, arguing in part that he lacked fair notice that proof of specific medication-monitoring safeguards would be treated as necessary to establish rehabilitation.

## Issues

1. Whether the Commission denied Wirtz due process and fundamental fairness by rejecting his rehabilitation showing based on the absence of specific medication-compliance “safeguards” that were not disclosed in advance as part of the rehabilitation standard.
2. Whether the Commission’s finding that Wirtz failed to establish rehabilitation by clear and convincing evidence could stand where the decision rested on an undisclosed, effectively dispositive evidentiary requirement.

## Decision

- The Appellate Division set aside the Commission’s decision and sent the matter back for further proceedings.
- The court held that Wirtz was not given fair notice that the Commission would treat particular “safeguards” to monitor medication compliance (such as surprise testing) as required proof of rehabilitation.
- Because the agency’s denial turned on that undisclosed requirement, the process did not provide a meaningful opportunity for Wirtz to meet the rehabilitation standard.

## Legal Principles

- Administrative licensing decisions must be made through procedures that satisfy due process, including notice of the standards the agency will apply and a meaningful opportunity to present proof under those standards.
- Under New Jersey’s fundamental-fairness doctrine, an agency may not base a denial on an unstated, ad hoc condition that the applicant had no reason to anticipate and address in the record.
- When a statute allows an otherwise disqualified applicant to establish rehabilitation by clear and convincing evidence, the agency must apply that standard using criteria that are knowable to the applicant rather than “hidden” requirements revealed only in the final decision.
- Where an agency treats a particular form of evidence (here, external medication-monitoring safeguards) as effectively required, fairness demands advance disclosure so the applicant can attempt to obtain and present such evidence.

## Conclusion

The Appellate Division set aside the Casino Control Commission’s revocation of Wirtz’s registration and denial of a permanent casino license because the agency’s rehabilitation analysis depended on an undisclosed requirement for medication-compliance “safeguards,” depriving Wirtz of fair notice and a real chance to satisfy the clear-and-convincing rehabilitation standard, and the case was returned to the agency for proceedings consistent with those procedural limits.


New Jersey Division of Gaming Enforcement v. Wirtz, 2007 WL 486740 (2007)