1 PUBLIC HEARING BEFORE THE GAMING COMMISSION

2 STATE OF MISSOURI

4 BE IT REMEMBERED that the above-entitled matter

5 came on for a public hearing at the St. Charles City Hall,

6 200 North Second Street, in the City of St. Charles, State

7 of Missouri, on the 26th day of February, A.D., 2003,

8 commencing at the hour of 9:30 in the morning of that day,

9 said hearing having been called by the Missouri Gaming

10 Commission, and the following is the transcript of the

11 record made of all proceedings had during the course of

12 said hearing.

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

2 Mr. Robert Smith - Chairman

3 Mr. Floyd O. Bartch - Commissioner

4 Ms. Judith Sutter-Hinrichs - Commissioner

5 Mr. Kevin Mullally - Executive Director

6 Ms. Angie Franks - Board Secretary

7 * * *

8 I N D E X

9 Page:

10 Resolution No. 03-013. . . . . . . . . . . . . . . . . 7

11 Resolution No. 03-014. . . . . . . . . . . . . . . . . 10

12 In Re: David Teague . . . . . . . . . . . . . . . . . 13

13 Resolution No. 03-015. . . . . . . . . . . . . . . . . 27

14 Resolution No. 03-016. . . . . . . . . . . . . . . . . 56

15 DC-03-024. . . . . . . . . . . . . . . . . . . . . . . 58

16 DC-03-025. . . . . . . . . . . . . . . . . . . . . . . 62

17 Proposed Admendment 11 CSR 45-10.030 . . . . . . . . . 63

18 Resolution No. 03-017-03-022 . . . . . . . . . . . . . 66

19 Update on Gambling Programs. . . . . . . . . . . . . . 71

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1 CHAIRMAN SMITH: Come to order, please. We

2 have a quorum now. Is this working? Can you all hear

3 me? Somebody in the back row? We'll convene the meeting

4 of the Gaming Commission. Will you please call roll.

5 MS. ANGELA FRANKS: Chairman Smith?

6 CHAIRMAN SMITH: Present.

7 MS. FRANKS: Commissioner Battle?

8 Commissioner Bartch?

9 COMMISSIONER BARTCH: Present.

10 MS. FRANKS: Commissioner Hinrichs?

11 COMMISSIONER HINRICHS: Present.

12 CHAIRMAN SMITH: We have a quorum. I guess

13 the next order of business is the consideration of minutes

14 of the December 12, 2002 meeting. Anybody have any

15 corrections to those minutes? If not, do we have a motion

16 to approve them?

17 COMMISSIONER BARTCH: Make that motion.

18 CHAIRMAN SMITH: Is there a second?

19 COMMISSIONER HINRICHS: Because I wasn't

20 there --

21 CHAIRMAN SMITH: I guess I will second it

22 then. All right, I guess you could second it.

23 COMMISSIONER HINRICHS: Okay.

24 CHAIRMAN SMITH: Move and second. Call

25 roll.

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1 MS. FRANKS: Chairman Smith?

2 CHAIRMAN SMITH: In favor.

3 MS. FRANKS: Commissioner Bartch?

4 COMMISSIONER BARTCH: Favor.

5 MS. FRANKS: Commissioner Hinrichs?

6 COMMISSIONER HINRICHS: Abstain.

7 CHAIRMAN SMITH: I don't know where that

8 leaves us on these minutes.

9 COMMISSIONER BARTCH: Kevin, I thought you

10 said before she could second. That's the reason we went

11 back and did stuff.

12 CHAIRMAN SMITH: I don't think I agree with

13 that. I think she can't vote if she hasn't been here.

14 Were you there for the other two minutes?

15 COMMISSIONER HINRICHS: Yes.

16 CHAIRMAN SMITH: We'll just -- if we could

17 table the minutes of December 12 then and take it up at

18 the next meeting. How about the January 22, 2003?

19 COMMISSIONER HINRICHS: I would move to

20 approve those.

21 CHAIRMAN SMITH: Motion to approve those.

22 Is there a second?

23 COMMISSIONER BARTCH: Second.

24 CHAIRMAN SMITH: Call roll.

25 MS. FRANKS: Chairman Smith?

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1 CHAIRMAN SMITH: In favor.

2 MS. FRANKS: Commissioner Bartch?

3 COMMISSIONER BARTCH: Favor.

4 MS. FRANKS: Commissioner Hinrichs?

5 COMMISSIONER HINRICHS: Favor.

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

7 minutes of the January 22, 2003 meeting.

8 CHAIRMAN SMITH: The next meeting is minutes

9 of January 29, 2003. Motion? Any changes on those? Do

10 we have a motion to approve?

11 COMMISSIONER BARTCH: So move.

12 COMMISSIONER HINRICHS: Second.

13 CHAIRMAN SMITH: Call roll.

14 MS. FRANKS: Chairman Smith?

15 CHAIRMAN SMITH: In favor.

16 MS. FRANKS: Commissioner Bartch?

17 COMMISSIONER BARTCH: Favor.

18 MS. FRANKS: Commissioner Hinrichs?

19 COMMISSIONER HINRICHS: Favor.

20 MS. FRANKS: By your vote you have adopted

21 the minutes of the January 29, 2003 meeting.

22 CHAIRMAN SMITH: We want to proceed with the

23 agenda. I guess the next order of business is hearing

24 officer recommendations.

25 MR. KEVIN MULLALLY: Yes, Mr. Chairman. We have

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1 two hearing officer recommendations, and Hearing Officer

2 Thad McCanse is here to make a presentation.

3 CHAIRMAN SMITH: Good morning.

4 MR. THAD McCANSE: Good morning, Mr. Chairman,

5 members of the Commission. Since we're late I'll try and

6 be quick. The two cases, while on the face seem a little

7 bit routine, both have some interesting points. One of

8 them, Miss Hardaway, received notice of her proposed

9 discipline on March 14, and -- it was mailed March 14.

10 She received it March 16. She didn't file a request for a

11 hearing until May 28. In the meantime, according to the

12 records, her license was revoked. So she then filed a

13 request to have her license reinstated. I could find no

14 provision for reinstatement of the license in our rules.

15 The only recourse that I think that she would have would

16 be to either appeal the first order or to file a new

17 application, if she wanted to go work for a casino and go

18 through the application process. But to me there's

19 nothing else that she could do.

20 On top of that, apparently she moved, because when

21 the matter was set for a hearing later on I called -- she

22 didn't show up. I called her number and her phone had been

23 disconnected. And there were three attempts to serve the

24 certified letter, all of which failed. So it was

25 returned. As a result I thought that her license or

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1 her application to have her license reinstated should be

2 denied. It raised the point about the 30-day provision in

3 the rules. Both of them seem to be mandatory, and one

4 said that the request for a hearing must be filed within

5 30 days and a second one regarding disciplinary hearing

6 says it shall be filed within 30 days.

7 In the past, I think Judge Wilson raised the point

8 as to whether or not the Commission could waive that. And

9 I think in that particular case you all voted to do so.

10 But here the difference is that there was an action taken

11 after the 30-day period revoking the license, and I don't

12 think that was the case in the earlier problem. So to me

13 the 30-day hearing is a requirement which is not

14 discretionary and especially in this case where action was

15 taken. Also, since she failed to show up and failed to

16 keep us notified of her appearance, that gave me an

17 additional ground to deny her request for hearing and

18 in view of the fact that she gave no reason why she should

19 have a hearing.

20 But the main point I wanted to make is that there

21 is no way to reinstate a license. Incidentally, there is

22 no procedure I could find in our rules specifically

23 dealing with what happens when a person fails to show up

24 for a hearing. So the hearing officers usually have to

25 find a way around that one way or another. It is

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1 something that I think could be addressed if the rules are

2 ever subjected to amendment, that a failure to appear for

3 a hearing would, in effect, mean that the proposed orders

4 are being filed.

5 CHAIRMAN SMITH: This also is a -- she

6 really didn't have a prima facie case and nondisclosure of

7 arrest on the application, wasn't it?

8 MR. McCANSE: That's right. There was a

9 prima facie case made. The trooper testified to that, so

10 that there were grounds for the denial. And, therefore, I

11 felt that there was good reason to refuse the application

12 for reinstatement or to have her license revoked. Her

13 license was revoked.

14 CHAIRMAN SMITH: And if she wants to work

15 again she has to reapply.

16 MR. McCANSE: I think that would be her

17 recourse. Then she would have an opportunity to explain

18 about this arrest, whatever it was. The details of the

19 arrest were not in the record, except that it was for

20 theft of under $300.

21 CHAIRMAN SMITH: Any commissioner have any

22 questions? If not, what's your pleasure on this

23 recommendation, the recommendation of denial?

24 COMMISSIONER BARTCH: I recommend approval

25 of resolution number 03-013.

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1 CHAIRMAN SMITH: Is there a second?

2 COMMISSIONER HINRICHS: Second.

3 CHAIRMAN SMITH: Call roll.

4 MS. FRANKS: Chairman Smith?

5 CHAIRMAN SMITH: Favor.

6 MS. FRANKS: Commissioner Bartch?

7 COMMISSIONER BARTCH: Favor.

8 MS. FRANKS: Commissioner Hinrichs?

9 COMMISSIONER HINRICHS: Favor.

10 MS. FRANKS: By your vote you have adopted

11 number 03-013.

12 MR. McCANSE: Second matter is with Mr.

13 Brinkman, which was the case where when he was

14 19-years-old, he pleaded guilty to sale of marijuana or

15 possession of marijuana for sale. That was in 1977. He

16 had a lawyer who entered a plea of guilty, and then there

17 was a suspended imposition of the sentence. I was -- and

18 probably wasn't too fair to Mr. Brinkman. But I spent

19 some time trying to find a way to see if the Commission

20 would have discretion to enable him to get this particular

21 job, which apparently the casino wanted and he wanted.

22 He's had, apparently, a clean record for 25 years. There's

23 nothing else in his background that was adverse, but the

24 statute involved is pretty clear. If you've been

25 convicted of a felony you're not entitled to a license,

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1 and the casino is not allowed to hire you. It seems

2 unfortunate. And, by the way, if the lawyer had allowed

3 the Court to find him guilty instead of pleading him

4 guilty and then had there been a suspended imposition of

5 sentence, there would have been no conviction, and he

6 would have been able to go to work.

7 As it is, however, the record is pretty clear that

8 he did plead guilty to a felony. And while the rules

9 seem to give the Commission discretion since it said you

10 may revoke the license or refuse the license to a person

11 who's been convicted of a crime or pleaded guilty to a

12 crime, the statute doesn't give any discretion. And,

13 therefore, reluctantly I decided that he was not able to

14 be employed as a warehouse superintendent for the casino.

15 CHAIRMAN SMITH: You really don't have

16 discretion if the statute doesn't authorize us to do it.

17 MR. McCANSE: No. The statute makes no

18 exceptions. I worked quite a while trying to find one.

19 Because, frankly, he made a good appearance, and he was up

20 front about it. I think he admitted on his application

21 about this 25 year old incident, whatever it was. But I

22 think Mr. Bradley had told me that in some jurisdictions

23 they put a time limit on the convictions. Missouri

24 doesn't. So I'm afraid, while my sympathies are with Mr.

25 Brinkman, the law is against him.

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1 CHAIRMAN SMITH: Any questions by the

2 Commission members? I know we've had this come up before,

3 and we felt frustrated by it. But the statute is there.

4 Unless the legislature changes the statute, I don't see we

5 have any alternative.

6 MR. McCANSE: I don't either.

7 CHAIRMAN SMITH: Maybe that's something we

8 could perhaps address, Kevin, some time in the future with

9 the legislature. You want to call roll? Oh, a motion.

10 COMMISSIONER HINRICHS: So moved. What is

11 the -- what's the number on this?

12 COMMISSIONER BARTCH: 03-014.

13 COMMISSIONER HINRICHS: 03-014, move to

14 approve that resolution.

15 COMMISSIONER BARTCH: Second.

16 CHAIRMAN SMITH: Second to that resolution

17 number 03-014 which affirms the finding of the hearing

18 officer be approved. Call roll.

19 MS. FRANKS: Chairman Smith?

20 CHAIRMAN SMITH: In favor.

21 MS. FRANKS: Commissioner Bartch?

22 COMMISSIONER BARTCH: Favor.

23 MS. FRANKS: Commissioner Hinrichs?