Friday, January 16, 2015

New Jersey Appellate Division Rejects Waterfront Commissions Legal Definition of “Inimical Association” as it Applies to an “Association” with an Alleged Organized Crime Figure

In the Matter of Commission Proceeding on Revocation of License of Pasquale Pontoriero, ____ N.J. Super. _____ (App. Div. 2015, the New Jersey Appellate Division on January 7, 2015, although affirming the license revocation of Pasquale Pontoriero, to work as a longshoreman hiring agent, the Appellate Division nevertheless held that the Waterfront Commission erred in that case holding that a longshoreman’s associate with a known organized crime figure is ipso facto inimical to the Waterfront Act.

For a full copy of the decision to to:

In this case the Administrative Law Judge for the Waterfront Commission adopted a strict liability standard and revoked the Waterfront registration of Mr. Pontoriero because of Pontoriero’s alleged association with known organized crime figure Tino Fiumera and Steven DePiro. In that case the Administrative Law Judge and the Waterfront Commission held that regardless of the facts or circumstances that if a longshoreman, checker, or maintenance personnel associate with a known organized crime figure that it is automatic revocation of his or her license.

In rejecting the Waterfront’s strict liability standard in Pontoriero the Appellate Division held that the commission must analyze the factors found in the New Jersey casino control case,  In re Staluppi, 94 N.J.A.R. 2d, 31 (1993).  The factors are:  (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; (9) Termination of the association, if any; (10) The reason for any such termination; and, (11) Any other relevant facts or circumstances.  Apply these factors to the Pontoriero case the appellate division held that since Mr. Pontoriero was a hiring agent, a highly sensitive to corruption and that Pontoriero had invoked the his Fifth Amendment right to remain silent when asked would he favor hiring a Genovese family associate over a non-Genovese associate.  Under these facts it was reasonable for the Commission to hold that a reasonable observer could conclude that Fiumara and DePiro held inappropriate influence over Mr. Pontoriero, and hence, the revocation of his license by the Commission was proper.  It was undisputed on the record that Fiumara and DePiro were members of the Genovese crime family.

In the final analysis this is a good case and helpful to the license workers at the New Jersey and New York docks whom decide to litigate their case in New Jersey courts. Further, the case is helpful because the New Jersey courts for the first time expressly defined the term “inimical associate” as it applies to the Waterfront Commission Act.  The definition that was previously used by the Commission in all of their cases pre-Pontoriero has now been rejected.  The definition of strict liability used by the Waterfront Commission in pre-Pontoriero cases was overly broad and permitted the Waterfront Commission to act in an arbitrary and capricious manner, and thus, unfairly treated longshoreman, checkers and maintenance personnel, when proceedings were brought against them by the Waterfront for associating with an organized crime figure.  Now under the Pontoriero case it will be much hard for the Waterfront to revoke a license for “inimical association”, with a organized crime figure.

This is a public service blog provided by the Law Office of Vincent J. Sanzone, Jr., Esq., and is not intended to give any specific legal advice regarding any specific case now before the Waterfront Commission or any case in the future.

If you have a case before the Waterfront Commission you are invited to contact the Law Office of Vincent J. Sanzone, Jr., an experienced New Jersey-New York Waterfront lawyer who has represented numerous International Longshoreman Members, and longshoremen, checkers and maintenance personnel before the Waterfront Commission, for a consultation to discuss your case.

P.O. Box 261
277 North Broad Street
Elizabeth (Union County), New Jersey 07207
(908) 354-7006

New Jersey New York Waterfront Attorney-Lawyer for the hardworking ILA members, longshoreman, checkers, maintenance men, who will protect your rights and fight and help you retain your job.

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