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3 BEFORE THE MISSOURI GAMING COMMISSION

4 OF THE COUNTY OF ST. LOUIS

5 STATE OF MISSOURI

9 IN RE: Public Hearing

12 BE IT REMEMBERED that the above-entitled

13 matter came on for public hearing at Saint Louis

14 University, School of Allied Health, 2nd Floor,

15 Multi-Purpose Room, 3437 Caroline, St. Louis, Missouri,

16 on the 24th day of June, A.D., 2002, commencing at the

17 hour of 10:00 in the morning of that day, said hearing

18 having been called to order by the Chairman and the

19 board members of the Missouri Gaming Commission of the

20 City of Jefferson City, Missouri pursuant to the

21 issuance of due notice to all parties in interest, and

22 the following is the transcript of the record made of

23 all proceedings had during the course of said hearing.

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1 A P P E A R A N C E S

4 Robert Smith - Vice-Chairman

5 Dr. Muriel W. Battle - Commission Member

6 J. Joe Adorjan - Commission Member

7 Lynne R. Nikolaisen - Secretary

9 * * *

10 I N D E X

12 SPEAKER: Page:

13 THAD McCANSE 5

14 JUDGE McCORMICK WILSON 20

15 MIKE YOST 35

16 BOB THURSBY 42

17 HAROLD LUDWIG 48

18 GEORGE HAMILTON 52

19 LARRY SECKINGTON 63

20 RICK WILHOIT 67

21 MIKE BUSHMANN 69

22 KEVIN MULLALLY 72

23 STEVE JOHNSON 28, 72

24 MIKE BUSHMANN 77

25 JOSEPH KIZITO 79

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1 A P P E A R A N C E S

3 SPEAKER: Page:

5 KEVIN MULLALLY 82, 87,

6 89, 93, 94, 104, 116, 119, 124, 128.

8 JIM OBERKIRSCH 85, 88,

9 89, 93, 111, 117, 120, 125.

11 MELISSA STEPHENS 97

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1 CHAIRMAN SMITH: Let's call the meeting to

2 order. The first order of business is calling the

3 roll.

4 MS. ANGIE FRANKS: Commissioner Smith?

5 CHAIRMAN SMITH: Present.

6 MS. FRANKS: Commissioner Nikolaisen?

7 MS. NIKOLAISEN: Present.

8 MS. FRANKS: Commissioner Battle?

9 MS. BATTLE: Present.

10 MS. FRANKS: Commissioner Adorjan?

11 MR. ADORJAN: Present.

12 MR. MULLALLY: Mr. Chairman, the first

13 order of business is consideration of the minutes of

14 April 24, 2002. They're in Tab A of your book.

15 CHAIRMAN SMITH: Does anybody have any

16 corrections on the minutes?

17 Do we have a motion to approve them?

18 MS. NIKOLAISEN: I move to approve.

19 MS. BATTLE: I'll second.

20 CHAIRMAN SMITH: So moved by Commissioner

21 Nikolaisen with a second by Ms. Battle.

22 Call the roll.

23 MS. FRANKS: Commissioner Smith?

24 CHAIRMAN SMITH: In favor.

25 MS. FRANKS: Commissioner Nikolaisen?

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1 MS. NIKOLAISEN: In favor.

2 MS. FRANKS: Commissioner Battle?

3 MS. BATTLE: In favor.

4 MS. FRANKS: Commissioner Adorjan?

5 MR. ADORJAN: In favor.

6 MS. FRANKS: By your vote, you've adopted

7 the minutes of the April 24, 2002 meeting.

8 CHAIRMAN SMITH: Is there anything special

9 you want to do with the agenda today, or can we just go

10 ahead?

11 MR. KEVIN MULLALLY: Mr. Chairman, I think we

12 can stay pretty much in order today. No surprises.

13 The first item for formal business is

14 Consideration of Hearing Officer Recommendations.

15 Hearing Officer Thad McCanse has the first two cases

16 under Tabs B and C.

17 CHAIRMAN SMITH: Good morning.

18 MR. THAD McCANSE: Mr. Chairman. Thank you.

19 Good morning to you, sir, members of the Commission.

20 The first one involved a man who pleaded

21 guilty to a felony and received a suspended imposition

22 of sentence. It was -- on the face of it, it shouldn't

23 be a very difficult problem to handle except that

24 Mr. Bradley, as a matter of courtesy, decided to put

25 his case on first. At the end of his case, the

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1 attorney for the Petitioner didn't put on any evidence.

2 As a result, I couldn't tell from the file, to be sure,

3 whether the man was currently working -- I think he was

4 -- whether he was applying for a license by

5 transferring from one casino to another, or whether

6 they were asking that the license be revoked because at

7 different places in the arguments in the file, both of

8 those issues were stated. So I had to write kind of a

9 -- I wouldn't say wishy-washy but ambivalent

10 recommendation saying that, if he has a license, it

11 ought to be revoked, and if he's applying for a

12 license, it ought to be denied.

13 In any event, since he did plead guilty to

14 a felony, he's not entitled to work for a casino under

15 the statute and under the rule. So I gave that

16 explanation to explain why I wrote the order -- report

17 and order up in this fashion. If you have any

18 questions, I'd be glad to respond to them.

19 CHAIRMAN SMITH: It's just another one of

20 these arguments over the suspended imposition of

21 sentence and its effect --

22 MR. McCANSE: Yes.

23 CHAIRMAN SMITH: -- which we've been

24 through a number of times. It doesn't seem right, but

25 we have to go by what the rules are.

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1 MR. McCANSE: That's right. I think, in

2 one of our rules, we say the suspended imposition of

3 sentence doesn't make any difference, if there's a

4 plea, why, that disqualifies you.

5 So if there are any questions, I'll try to

6 field them. I must admit that the record is a little

7 bit scanty on that first one except that he did plead

8 guilty to a felony and we also established, by

9 admission, that although Charles Smith is a common

10 name, his attorney agreed that that is the person who

11 was involved.

12 CHAIRMAN SMITH: I noticed you did do

13 that. I'm still offended, but that's all right.

14 MR. McCANSE: I shouldn't say a common

15 name, sir. It's a frequently-used name.

16 CHAIRMAN SMITH: Since that's my second

17 name, it bothered me a little bit.

18 Do we have any questions? If not, do we

19 have a motion?

20 MR. ADORJAN: I'll move.

21 MS. BATTLE: I'll second.

22 CHAIRMAN SMITH: Moved and seconded that

23 we approve Resolution No. 02-043 of Charles E. Smith,

24 which will either suspend or revoke his license, if he

25 has it, or if he hasn't gotten it, he's denied.

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1 Call the roll.

2 MS. FRANKS: Commissioner Smith?

3 CHAIRMAN SMITH: In favor.

4 MS. FRANKS: Commissioner Nikolaisen?

5 MS. NIKOLAISEN: In favor.

6 MS. FRANKS: Commissioner Battle?

7 MS. BATTLE: In favor.

8 MS. FRANKS: Commissioner Adorjan?

9 MR. ADORJAN: In favor.

10 MS. FRANKS: By your vote, you've adopted

11 Resolution No. 02-043.

12 MR. McCANSE: The next case involves a man

13 named Melvin Jacobs who works for a casino and who did

14 testify.

15 The first problem is pretty much

16 procedural. In the Order of the Notice of Discipline,

17 they referred to a violation of one of the rules except

18 that they referred to the rules saying that if you've

19 been convicted of a crime, then your license may be

20 revoked or denied. He was charged with violating a

21 city ordinance, the City of Creve Coeur, with

22 assaulting a nine-year-old child. A violation of a

23 city ordinance is not a crime, and so the charge

24 against him was based on the wrong rule. There is a

25 rule that would have been appropriate, but not the one

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1 that was cited in the Order. However, the statute

2 about violating a local law was cited, more or less in

3 passing, in the Order for Discipline. It was not cited

4 as a basis for the charge, but it was mentioned.

5 His attorney did not make an issue of that

6 point, and instead, she tried the case on, again, the

7 suspended imposition of sentence and argued vehemently

8 that there was nothing before the Commission at the

9 time the action was taken to discipline him.

10 He testified, and the evidence was, that

11 he was swimming in a pool in the apartment complex

12 where he lived. He swims laps for fitness. After he

13 had started swimming, a couple of young children came

14 in, one of them a nine-year-old girl, with no adults

15 present, and they started asking him questions, which

16 he didn't answer, and, finally, they -- one of them

17 jumped in front of him. And he testified that, as he

18 was following through with his swimming stroke, he hit

19 her in the forehead, or pushed her in the forehead.

20 After that, why, there was some more horseplay, let's

21 say, on the part of the kids. They squirted water guns

22 at him, hung onto the life preserver, and hit him as

23 he came toward the end, and he tried to ignore them,

24 for the most part.

25 He got out of the pool and decided to try

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1 and bring to somebody's attention that they had

2 unsupervised children there. So, apparently, he threw

3 their towels in the pool so that they would have to

4 take wet towels when they went home. A woman,

5 apparently a child's mother, came out and accused him

6 of hitting her child. After that, the police came and

7 arrested him and took him down. He talked to the

8 juvenile officer, and was released. He was charged

9 then with violating a city ordinance of Creve Coeur.

10 The ordinance was never put into evidence, so I had to

11 speculate somewhat as to just what was done.

12 The attorney for Mr. Jacobs made what is

13 called an Alford plea, which allows a person to plead

14 guilty while protesting their innocence. However, the

15 cases have held that an Alford plea amounts to a plea

16 of guilty, and before a judge can accept an Alford

17 plea, he has to find that there are enough facts to

18 prove guilt; otherwise, he can reject it.

19 CHAIRMAN SMITH: Is this the same as a

20 nolo contendere plea?

21 MR. McCANSE: In a sense; although, a nolo

22 contendere, you don't say anything. An Alford plea

23 says I didn't do this but I want to plead guilty

24 because if you find me guilty, I'll go to the electric

25 chair; if you don't, I'll only get 30 years. The U.S.

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1 Supreme Court, in a divided opinion said, yeah, you can

2 do that, it wasn't really coercion. So it's been used,

3 I think, by various attorneys several times since. But

4 whether it was appropriate or not in this case, I don't

5 know.

6 It bothered me because, under the facts

7 that he recited, it was a purely accidental affair

8 which was brought on more by the child than by the

9 Petitioner. There is no evidence other than the

10 Petitioner's account of it and a Highway Patrolman.

11 The Petitioner testified that no member of

12 the family was present when he was -- appeared in City

13 Court. And he was given -- again, the record is a

14 little foggy, but it was either two-year's probation or

15 one-year's probation and court costs, and he satisfied

16 all of the requirements.

17 Again, there was a problem here. He said

18 that he had to report this as part of a continuing duty

19 to keep his application current. I had an older

20 application in another case, and it only requires you

21 to report a crime. This was not a crime. So in

22 effect, he didn't have to report it, but he did,

23 there's the charge, and on the face of it, assaulting a

24 nine-year-old girl doesn't look very good.

25 The proposed discipline was a two-year

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1 suspension. He's single and had been let go when his

2 former employer was downsized, and he had been working

3 at the casino for two or three years. He testified