0001

1 MISSOURI GAMING COMMISSION

STATE OF MISSOURI

4 October 25, 2006

3417 Knipp Drive

5 Jefferson City, Missouri

7 BEFORE: Noel J. Shull, Chairman

Darryl T. Jones, Commissioner

8 Samuel J. Hais, Commissioner

Larry W. Plunkett, Sr., Commissioner

19 REPORTED BY:

21 KELLENE K. FEDDERSEN, RPR, CSR, CCR

MIDWEST LITIGATION SERVICES

22 3432 West Truman Boulevard, Suite 207

Jefferson City, MO 65109

23 (573)636-7551

0002

1 I N D E X

2 Call to Order 3

3 Executive Director Update 3

4 Consideration of Minutes 6

5 Consideration of Hearing Officer Recommendations

David Williams, Resolution No. 06-049 7

6 Christopher Bourneuf, Resolution No. 06-050 9

James Whitehurst, Resolution No. 06-051 26

7 Jack Humphrey, Resolution No. 06-052 33

Rickey Smith, Resolution No. 06-053 35

8 Ashley Roberts, Resolution No. 06-054 37

9 Consideration of Level I/Key Applications

Resolution No. 06-055 39

10 Resolution No. 06-056 40

11 Consideration of Rules & Regulations 41

12 Aztar/Fortune Licensing 45

0003

1 P R O C E E D I N G S

2 CHAIRMAN NOEL SHULL: If we could have everyone

3 take a seat, we'll go ahead and get started. Welcome to

4 the meeting today, and we can go ahead and call the roll,

5 please.

6 MS. ANGELA FRANKS: Chairman Shull?

7 CHAIRMAN SHULL: Present.

8 MS. FRANKS: Commissioner Jones?

9 COMMISSIONER DARRYL JONES: Present.

10 MS. FRANKS: Commissioner Hais?

11 COMMISSIONER SAMUEL HAIS: Present.

12 MS. FRANKS: Commissioner Plunkett?

13 COMMISSIONER LARRY PLUNKETT: Present.

14 CHAIRMAN SHULL: The first thing we're

15 going to discuss is Mr. McNary has some comments he'd like

16 to make.

17 MR. GENE McNARY: Mr. Chairman, members of the

18 Commission, we're submitting a budget next week to the

19 Department of Public Safety, and I think I have kept most

20 of the Commission members advised of the budget and how

21 it's evolved, but I wanted to go over for your information

22 what will be submitted and a little of the background.

23 The Gaming Commission's staff is paid from

24 an MGC fund. The fund receives revenue from basically

25 three sources. Admissions fees comprise 85 percent of the

0004

1 funding. Direct casino reimbursement, which is major,

2 comprises 13.4 percent, and licensing fees, interest

3 income and some miscellaneous is 1.6. The direct

4 reimbursement licensing fees covers more than half of the

5 MGC's budget. The remainder, $7.1 million, is covered by

6 admission fees.

7 This means that more than $46 million,

8 then, is available to fund, by formula set in the statute

9 these various worthy causes, which includes $30.3 million

10 for early childhood development, $6 million to the

11 veterans, $5 million to Missouri College Guarantee Fund,

12 $4 million to the National Guard Trust Fund, $500,000 for

13 county juvenile diversion programs, and almost $490,000

14 for the compulsive gamblers fund.

15 The admission fees for the last couple of

16 years have been relatively flat and are expected to grow

17 at only 1.5 percent for FY '08. This will change when the

18 two new Pinnacle properties come online.

19 Through our job consolidation plan, we've

20 been able to reduce the amount of budget covered by

21 admission fees by over $392,000 in payroll and fringe

22 benefits, and this represents a 5.6 percent reduction in

23 budget covered by admission fees and lowers our obligation

24 of the admission fees from 12.8 percent to 12.1 percent.

25 We're funding our own operations to that degree, which is

0005

1 a small percentage compared to what those admission fees

2 yield.

3 For FY '08, the Commission requested budget

4 is for core funding only and has been reduced by $227,000

5 plus 12 FTEs, which made administration very happy, in

6 personal service, and we cut $391,000 in overtime and over

7 $300,000 in fringe benefits. This has been an ongoing

8 in-depth analysis of our operations and streamlining the

9 operations. We've tried to cut some positions that we

10 felt were unnecessary and use the savings to increase

11 salaries for positions we thought were necessary and

12 were not competitive with our salary structure.

13 So that's been the policy and the basic

14 strategy, and we think it will be well received by DPS and

15 the administration in budget and planning. You know,

16 there are in-depth details ad nauseam for your perusal,

17 and we'll -- I have Alden Henrickson here, our budget guru

18 and director of administration, to answer any questions if

19 you have questions now about the budget.

20 MR. ALDEN HENRICKSON: Or call me later.

21 MR. McNARY: Or you can call him later,

22 which is an even better idea.

23 CHAIRMAN SHULL: Are there any immediate

24 questions? No questions.

25 The next item is consideration of the

0006

1 minutes for the August 23rd meeting. Having read them,

2 are there any changes or modifications?

3 COMMISSIONER HAIS: Chairman, I move that

4 the minutes be approved.

5 COMMISSIONER PLUNKETT: Second.

6 CHAIRMAN SHULL: Any further discussion of

7 the minutes? Call the roll, please.

8 MS. FRANKS: Chairman Shull?

9 CHAIRMAN SHULL: Approved.

10 MS. FRANKS: Commissioner Jones?

11 COMMISSIONER JONES: Approved.

12 MS. FRANKS: Commissioner Hais?

13 COMMISSIONER HAIS: Approved.

14 MS. FRANKS: Commissioner Plunkett?

15 COMMISSIONER PLUNKETT: Approved.

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

17 the minutes of the August 23rd, 2006 meeting.

18 CHAIRMAN SHULL: The next issue is

19 consideration of minutes for the September 20th, 2006

20 meeting.

21 COMMISSIONER JONES: So moved.

22 COMMISSIONER HAIS: Second.

23 CHAIRMAN SHULL: Is there any further

24 discussion on those minutes? Call the roll.

25 MS. FRANKS: Chairman Shull?

0007

1 CHAIRMAN SHULL: Approved.

2 MS. FRANKS: Commissioner Jones?

3 COMMISSIONER JONES: Approved.

4 MS. FRANKS: Commissioner Hais?

5 COMMISSIONER HAIS: Approve.

6 MS. FRANKS: Commissioner Plunkett?

7 COMMISSIONER PLUNKETT: Approve.

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

9 the minutes of the September 20th, 2006 meeting.

10 CHAIRMAN SHULL: Mr. McNary, do you want to go

11 ahead and proceed?

12 MR. McNARY: Mr. Chairman, Item 4 on the

13 agenda concerns considerations by the hearing -- of the

14 hearing officer recommendations, and the Hearing Officer

15 Gary Jenkins is here and will make those presentations.

16 MR. GARY JENKINS: Good morning. The first case

17 is David Williams, and the allegation was Mr. Williams had

18 applied for a Level II license and it was denied because

19 he failed to disclose a prior assault arrest, and he

20 appealed that denial.

21 And in regards to Mr. Williams, he was --

22 he had been notified about this hearing at one time and

23 he'd sent a letter asking for a continuance, and we did a

24 continuance, and then I got another letter from him asking

25 for a hearing on the date that we had the hearing. It was

0008

1 June 1st. And so I sent a letter back to him saying that

2 we would have the hearing on that date. And I understand

3 that the Gaming Commission also sent him a letter

4 notifying him of that, that they got back as unclaimed.

5 It was -- or not picked up. It was a registered letter.

6 But he failed to appear at this hearing,

7 and the CSR is pretty specific about that. If you fail to

8 attend a hearing that's been set, then it's deemed that

9 all the allegations are true. And so I recommend that

10 Mr. Williams be denied a Level II license based on the

11 fact he did not appear at the hearing.

12 COMMISSIONER HAIS: Just for my

13 clarification, Mr. Jenkins, the June 1 of '06 was the date

14 to which the hearing had been continued to?

15 MR. JENKINS: He had actually -- he had

16 sent me a letter asking for the hearing to be continued to

17 June the 1st, 2006, and I returned that letter to that

18 address saying, yes, that would be fine.

19 COMMISSIONER HAIS: Okay. That was his

20 request?

21 MR. JENKINS: Yes.

22 MR. McNARY: Mr. Chairman, we have -- staff

23 has no reason not to accept the recommendation of the

24 Hearing Officer.

25 CHAIRMAN SHULL: Is Mr. Williams here and

0009

1 would he like to comment?

2 COMMISSIONER JONES: Move for acceptance of

3 Resolution No. 06-049.

4 COMMISSIONER HAIS: Second the resolution.

5 CHAIRMAN SHULL: Is there any further

6 discussion on this resolution? If not, call the roll.

7 MS. FRANKS: Chairman Shull?

8 CHAIRMAN SHULL: Approve.

9 MS. FRANKS: Commissioner Jones?

10 COMMISSIONER JONES: Approve.

11 MS. FRANKS: Commissioner Hais?

12 COMMISSIONER HAIS: Approve.

13 MS. FRANKS: Commissioner Plunkett?

14 COMMISSIONER PLUNKETT: Approve.

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

16 Resolution No. 06-049.

17 MR. JENKINS: My second case is Christopher

18 Bourneuf. The allegation in this case, Mr. Bourneuf holds

19 a Level II license, and the Gaming Commission recommends a

20 suspension of two days because he failed to secure playing

21 cards in a blackjack pit podium from January the 6th, 2006

22 at 6:48 a.m. until 10:09 a.m. of the same date.

23 Now, the law is pretty clear, the internal

24 controls standards of the Isle of Capri Casino and the CSR,

25 that gaming cards have to be secured at all times. As a

0010

1 matter of fact, any time cards or dice move from one place

2 to the other, they're accompanied by a security officer as

3 well as a staff employee of the casino.

4 What happened is, Mr. Bourneuf got off of work

5 at 6:48, and the next person that came to that podium to

6 get the cards out at 10:04 later that morning, Christopher

7 Lee, testified -- he testified that he checked the door,

8 the drawer where the cards were secured and it was not

9 locked, and there was a video that supported that, and he

10 immediately locked it back.

11 Now, Mr. Bourneuf's theory was that the

12 lock was loose and it fell forward after he locked it at

13 the end of the shift, and we had testimony from both the

14 Gaming staff and the casino staff for that the lock

15 sometimes had problems and that they never had -- and

16 another person testified that they never had problems with

17 these locks.

18 Also Mr. Bourneuf supported his theory with

19 witnesses testifying that this same lock at this same

20 podium 48 hours later was found to be loose, and there

21 were some -- placed into evidence some work orders that

22 showed that locks had been worked on. Didn't say

23 specifically what had been done, but that locks had been

24 worked on.

25 And I found that this theory was not

0011

1 supported by clear and convincing evidence because it was

2 48 hours later that these same locks were found to have

3 some kind of a problem, and they had been locked. There

4 was testimony that they'd been locked and unlocked as many

5 as 20 times during the shift after 10:08 in the morning.

6 So for over two days, probably two shifts, they had been

7 unlocked, you know, 20 to 40 times and locked back and

8 nobody complained about the locks.

9 So I recommend that Mr. Bourneuf's license

10 be suspended for two days.

11 CHAIRMAN SHULL: Are there any questions?

12 COMMISSIONER HAIS: Recommend that the --

13 CHAIRMAN SHULL: Just a minute. Is

14 Mr. Bourneuf here, would like to speak?

15 MR. CHRISTOPHER BOURNEUF: Yes, I would. Thank you.

16 Good morning. Appreciate your hearing this issue.

17 Obviously please excuse my nervousness, but this is a very

18 important issue for me personally. It represents a loss

19 of two days pay, and I was terminated, my employment was

20 terminated at Ameristar as a result of this incident.

21 I sent you gentlemen my objections to the

22 finding. If you have a moment, I'd like to go through

23 them with you. The first thing that I objected to in the

24 findings was Trooper Hunter, who was the person who did

25 the investigation subsequent to the incident, he started

0012

1 his investigation six days after the fact. And when we

2 had the hearing, I asked Trooper Hunter if he was ever

3 notified that those locks had to be replaced. He was

4 never notified by Ameristar. He never even did an

5 investigation. I was terminated over the phone without

6 having an opportunity to go up and revisit that podium.

7 We had problems with those locks on an

8 ongoing basis. As Mr. Jenkins indicated, we had lots of

9 testimony in our hearing regarding these locks. The only

10 person who testified that they didn't have a problem with

11 those locks were not the Gaming staff and it was not the

12 locksmith.

13 The person who testified that these locks

14 were okay was the head of security, because the locks as

15 they were failing or malfunctioning, weren't always

16 reported directly to him. They could be -- there were

17 times when -- and we had testimony about this at the

18 hearing also -- where staff members would use wads of

19 paper or tape to secure those drawers.

20 The only other witness to this incident was

21 the security officer who accompanied me as I replaced

22 those cards in the drawer that night. His testimony was,

23 yes, I saw Mr. Bourneuf lock that drawer and I saw him

24 check it, because that was my normal practice. I asked

25 his supervisor whether or not that security officer who

0013

1 accompanied me had been -- had any discipline for his

2 action, and he said no, he wouldn't be responsible.

3 Therefore, that security officer would have absolutely no

4 reason to lie when it came to whether or not I had locked

5 that drawer.

6 We heard testimony during the hearing

7 regarding videotapes, and I object to that, the testimony

8 about the video because it was never introduced as

9 evidence. There was testimony from the director of table

10 games, Mr. Joe Totoro, that he watched three hours of

11 videotape to determine that no one entered that drawer in

12 that time between 6:48 and 10 a.m., but that was never

13 introduced as evidence.

14 The other piece that I objected to was that

15 Mr. Jenkins found that no other person was seen around the

16 podium until the pit manager, Christopher Lee, discovered

17 the card drawer was open. We did have one brief piece of

18 video, and what it showed was at least three other people

19 standing around that podium as Mr. Lee goes to open the

20 door. They could have tried to pull that drawer open.

21 They could have checked themselves to see whether or not

22 that drawer was open, and could have -- and could have --

23 they could have caused that lock to malfunction, which as

24 I said was an ongoing problem at the casino.

25 Shortly after that, two days later, one of

0014

1 the pit managers by the name of Jimmy Hutchison went to

2 that pit, locked the drawer, left the pit, went back to it

3 later and found exactly as it had on two days prior, that

4 it had fallen open.

5 COMMISSIONER HAIS: I'm sorry. What was

6 his name?

7 MR. BOURNEUF: Jimmy Hutchison. Jimmy

8 Hutchison's testimony is in the transcript from the

9 hearing. Jimmy testified that twice on the 8th he had

10 secured that lock, come back to it, and found that it had

11 fallen open. No one informed Trooper Hunter of this when

12 he started his investigation on the 12th. I'm sure

13 there's other issues that --

14 COMMISSIONER HAIS: Did you call him as a

15 witness, sir?

16 MR. BOURNEUF: Yes, I did.

17 COMMISSIONER HAIS: Hutchison?

18 MR. BOURNEUF: Yes. Jimmy Hutchison's

19 testimony is in the transcript from our hearing. The

20 shift manager who was on duty and had to have those locks

21 replaced, Michelle Carter, testified, the locksmith

22 testified. Other security officers who had experience

23 with these locks.

24 I have been in this business now for

25 12 years in this jurisdiction without any incident, and I

0015

1 had been working as a shift manager at Ameristar Casino

2 for a couple of years. It was my normal business practice

3 to make sure those doors were locked. I fully understand

4 the importance of maintaining the integrity of the gaming

5 devices, the cards and dice. I understand the reason that

6 we need to make sure those are secured.

7 And when I left that pit, I locked that

8 drawer and checked it, which was my normal business

9 practice. The lock malfunctioned, and I was terminated

10 over the phone. I appreciate your attention.

11 COMMISSIONER JONES: Mr. Bourneuf, is the

12 locksmith a licensed employee?

13 MR. BOURNEUF: Licensed employee?

14 COMMISSIONER JONES: Yes.

15 MR. BOURNEUF: He's employed. As far does

16 he hold a --

17 COMMISSIONER JONES: Is he licensed for

18 that particular vessel?

19 MR. BOURNEUF: Yes.

20 COMMISSIONER JONES: Is he licensed by the

21 Commission?

22 MR. BOURNEUF: I believe so. He works at

23 Ameristar and is employed by Ameristar. I assume that he

24 is, yes.

25 COMMISSIONER HAIS: How do pronounce your

0016

1 last name?

2 MR. BOURNEUF: Bourneuf.

3 COMMISSIONER HAIS: Bourneuf. Excuse me.

4 Mr. Bourneuf, you testified that Joe Totoro's tape was not

5 introduced into evidence?

6 MR. BOURNEUF: That's correct.

7 COMMISSIONER HAIS: Have you viewed that

8 tape?

9 MR. BOURNEUF: I was never allowed back on

10 property. Since that tape was never presented, no, I have

11 not -- I have not seen any of that tape.

12 COMMISSIONER HAIS: Could you have

13 introduced that tape?

14 MR. BOURNEUF: I was told when I asked

15 Mr. Jenkins and Sharon Euler that, that was -- the tape

16 that was presented at that hearing was the only tape that

17 they had available.

18 COMMISSIONER HAIS: You were at the

19 hearing, were you not?

20 MR. BOURNEUF: Yes, sir.

21 COMMISSIONER HAIS: You didn't move to

22 enter that tape into evidence, did you?

23 MR. BOURNEUF: I'm sorry. The videotape

24 that Mr. Totoro testified to?

25 COMMISSIONER HAIS: Right.

0017

1 MR. BOURNEUF: I don't even know that it

2 exists. The videotape that was introduced at the hearing

3 was a brief snippet of the back of my head at like 6:48,

4 which I wouldn't dispute, and then another brief snippet

5 that shows three people standing around the pit waiting

6 for that pit to open up and then Mr. Lee walking in.

7 COMMISSIONER HAIS: Well, is there anything

8 about Totoro's testimony that you dispute?

9 MR. BOURNEUF: That it can't be proven.

10 COMMISSIONER HAIS: That wasn't my

11 question. My question was, is there anything about his

12 testimony that you dispute?

13 MR. BOURNEUF: Without viewing -- without

14 viewing the tape, I couldn't dispute it.

15 COMMISSIONER HAIS: So your answer is no?

16 MR. BOURNEUF: Yes, my answer would be no.

17 I can't say that Mr. Totoro is -- I can't say that

18 Mr. Totoro is lying about that.

19 COMMISSIONER HAIS: Or incorrect?

20 MR. BOURNEUF: Or incorrect.

21 COMMISSIONER HAIS: Thank you.

22 CHAIRMAN SHULL: And did you say that

23 you've worked there, in the industry for 12 years?

24 MR. BOURNEUF: Yes.

25 CHAIRMAN SHULL: Have you ever had any

0018

1 other incidents of any type?

2 MR. BOURNEUF: I did have an incident that

3 has not gone through the whole appeals process, and it is

4 something that happened prior to this. The odd thing

5 about that is, the incident where that occurred was we

6 were bringing cards that needed to be secured, and we

7 miscounted the cards, found them later, and then had them

8 secured. Somehow that incident happened nine months

9 before this and never made it through the process. So

10 that hasn't been determined yet.

11 CHAIRMAN SHULL: Is there any further

12 discussion?

13 COMMISSIONER HAIS: I just have one further

14 question. You were present for Hearing Officer Jenkins'

15 presentation, were you not?

16 MR. BOURNEUF: Yes, sir.

17 COMMISSIONER HAIS: Do you recall him

18 indicating to the Commission that his -- that there were

19 some 20-plus instances of the drawer being unlocked and

20 relocked?

21 MR. BOURNEUF: Yes, I remember him

22 recalling that from somebody else's testimony.

23 COMMISSIONER HAIS: After you locked it,

24 with no apparent reporting of trouble?

25 MR. BOURNEUF: Yes.

0019

1 COMMISSIONER HAIS: Do you dispute that in

2 any way?

3 MR. BOURNEUF: No, I don't dispute it.

4 COMMISSIONER HAIS: You have no facts to

5 the contrary?

6 MR. BOURNEUF: I have no -- I wasn't on

7 property. I have no facts to the contrary. All I know is

8 from my history and my experience at that property, that

9 there were ongoing problems with those locks, and the fact

10 that they weren't reported does not surprise me at all.

11 COMMISSIONER HAIS: Well, let's just take a

12 look at that for a second, then. Prior to this incident,

13 the date of this incident, what was the most recent prior

14 to that incident, according to you, of problems with that

15 lock?

16 MR. BOURNEUF: With that particular lock?

17 COMMISSIONER HAIS: Yes, sir.

18 MR. BOURNEUF: I can't recall, sir.

19 COMMISSIONER HAIS: What about prior to

20 that? Do you have any specific dates, in other words?

21 MR. BOURNEUF: No, I have no specific

22 dates.

23 COMMISSIONER HAIS: And how did those

24 incidents come to your attention?

25 MR. BOURNEUF: How did the incidents of

0020

1 problems with the locks?

2 COMMISSIONER HAIS: Yes, sir.

3 MR. BOURNEUF: My staff would report it to

4 me and say, you know, this lock's not working. We would

5 call and have somebody come and repair the lock.

6 COMMISSIONER HAIS: Okay. You didn't --

7 you didn't keep any documentation of those incidents?

8 MR. BOURNEUF: That would not have been

9 part of our normal course of business. Changes to those

10 locks would have been part of the facilities department,

11 and the facilities came and reported a lock, just as we

12 subpoenaed the work orders, I could go back and produce

13 work orders for all the locks, and it was a long list that

14 he brought in.

15 COMMISSIONER HAIS: Were the locks changed

16 or repaired or do you know?

17 MR. BOURNEUF: They were changed out.

18 COMMISSIONER HAIS: Each and every time that

19 there were reports of --

20 MR. BOURNEUF: Not always. Occasionally

21 they could be repaired. Other times they were taken and

22 replaced out. We had a work order here showing that

23 these -- that these locks were replaced on one day, two

24 days later had to be replaced again.

25 COMMISSIONER HAIS: Do you have an idea of

0021

1 when the lock was replaced most recent to the incident in

2 question?

3 MR. BOURNEUF: Prior to it?

4 COMMISSIONER HAIS: Yes, sir.

5 MR. BOURNEUF: No, sir, I have no idea how

6 long that lock was in place. I know that it was replaced

7 on the 8th and then again on the 9th.

8 COMMISSIONER HAIS: I don't have any other

9 questions.

10 CHAIRMAN SHULL: Any other questions,

11 comments?

12 CHAIRMAN SHULL: Mr. Jenkins, we'd like to

13 have another question for you.

14 COMMISSIONER HAIS: Were you through?

15 MR. BOURNEUF: Yes, I was.

16 CHAIRMAN SHULL: Thank you very much.

17 COMMISSIONER HAIS: Mr. Jenkins, for the

18 record, you were present for Mr. Bourneuf's recitation of

19 the event from his perspective, were you not, sir?

20 MR. JENKINS: Yes, sir.

21 COMMISSIONER HAIS: And I just have a

22 couple of questions, but before I ask you the questions,

23 do you have any general statement you want to make in

24 response to anything Mr. Bourneuf said?

25 MR. JENKINS: Only that I don't believe the

0022

1 transcript's going to reflect that he actually pulled on

2 the drawer after he locked it. He just said that he

3 locked the drawer and he always pulls on it. I don't

4 believe that's going to be in the transcript. I'd have to

5 go back and look for sure, but I remember referring to

6 that in my Findings of Fact and Conclusions of Law, that

7 he did not -- I thought it was significant that he did not

8 pull on that drawer to make sure that it was locked. And

9 the locksmith had testified the only way for sure to make

10 sure a drawer's locked is to lock it and then give it a

11 little pull.

12 COMMISSIONER HAIS: Okay.

13 MR. JENKINS: Other than that, that's it.

14 I guess a general statement would be that there's a

15 security guard that did testify that I saw him lock it,

16 and that's what he said, I saw him lock the drawer, and

17 that was it.

18 COMMISSIONER JONES: Is that normal

19 procedure, is that written in the documentation for the

20 procedures, that every time you lock it, the second step

21 is to pull on the drawer?

22 MR. JENKINS: No, sir, not to my knowledge.

23 COMMISSIONER HAIS: Mr. Bourneuf made a

24 statement regarding the testimony of Joe Totoro, and it

25 was to the effect that the tape that Mr. Totoro made

0023

1 reference to in his testimony was not itself introduced

2 into evidence. Do you have any statement you want to make

3 about that? Is that customary in these hearings to

4 introduce the actual piece of physical evidence itself

5 or --

6 MR. JENKINS: Yes, it is normally, and they

7 did introduce what he described. They introduced the

8 podium at 6:48 when he was leaving. It didn't really show

9 anything but looked like the top of his head, and then the

10 next piece of tape was Mr. Lee opening it up, and it was a

11 panned-back view, and you could see him reach down and

12 unlock it or act like he was going to unlock it, he jumped

13 back and then he pulled it open. It was pretty apparent

14 that it was not locked when Mr. Lee went to open it.

15 And in between that, that testimony was

16 offered --

17 COMMISSIONER HAIS: Let me just stop -- I'm

18 sorry to interrupt. Let me just stop you right there. My

19 question wasn't the specifics of what was in the content

20 of the tape. It was whether or not that tape was

21 introduced into the record.

22 MR. JENKINS: I'm sorry, Judge. That tape

23 was not -- of the in between, the three hours in between

24 was not introduced in the record. You're right.

25 COMMISSIONER HAIS: All right.

0024

1 MR. JENKINS: And I guess as far as why it

2 wasn't introduced in the record, it was my understanding

3 when they introduced it or when Mr. Totoro testified about

4 the three hours intervening, he was testifying as to the

5 fact of they looked at that tape to make sure no one had

6 got in and done anything to the cards, which is the main

7 reason. That's why he testified to that, and there was no

8 objection at the time, and that was my --

9 COMMISSIONER HAIS: That was a secondary

10 issue?

11 MR. JENKINS: Correct.

12 MR. McNARY: Judge, if I might interject

13 here, you'll see a memo to you and the Commission that we

14 have that tape if you are interested in viewing it.

15 COMMISSIONER HAIS: Thank you. Just one

16 final question. There was some further statement made by

17 Mr. Bourneuf regarding previous problems with the lock and

18 repairs and replacements in connection with that. Do you

19 have any history of any problems with that particular --

20 with the repair of that? I'm not interested in the

21 replacement of it, obviously, but with the repair of that

22 lock.

23 MR. JENKINS: With that particular lock?

24 COMMISSIONER HAIS: Yes, sir.

25 MR. JENKINS: On Podium 3, I believe.

0025

1 COMMISSIONER HAIS: Uh-huh.

2 MR. JENKINS: No. There was general

3 testimony that, yeah, these locks are bad, we had problems

4 with these locks. There was general testimony that, no,

5 these locks are good. And then there was testimony that

6 two days later this lock had to be replaced, and that was

7 backed up by supporting documents.

8 COMMISSIONER HAIS: That's it.

9 CHAIRMAN SHULL: Any other questions?

10 There has been evidence that's a little confusing

11 presented on both sides of the issue, and is there a

12 motion?

13 COMMISSIONER HAIS: I would move,

14 Mr. Chairman, that we defer ruling on the matter until the

15 closed session, until the Commission has an opportunity to

16 discuss it in closed session.

17 COMMISSIONER PLUNKETT: I'd second that.

18 CHAIRMAN SHULL: Is there any further

19 discussion? Call the roll, please.

20 MS. FRANKS: Chairman Shull?

21 CHAIRMAN SHULL: Approve.

22 MS. FRANKS: Commissioner Jones?

23 COMMISSIONER JONES: Approve.

24 MS. FRANKS: Commissioner Hais?

25 COMMISSIONER HAIS: Approve.

0026

1 MS. FRANKS: Commissioner Plunkett?

2 COMMISSIONER PLUNKETT: Approve.

3 MR. JENKINS: The third case is James

4 Whitehurst. Now, the allegation was that Mr. Whitehurst

5 took sensitive keys to a slot machine outside the

6 facilities, and then during an investigation by the State

7 Patrol Gaming agent assigned to that casino, that he told

8 him a falsehood about whether he took those casino -- took

9 those sensitive keys off property or not.

10 And again, the CSR and the state statute is

11 very specific about this being a violation of knowingly

12 making a false statement of any material fact to the

13 Commission, its agents or employees, or for any kind of,

14 under the CSR, any kind of misrepresentation or

15 dishonesty.

16 There were several videotapes introduced in

17 this case, and it showed that Mr. Whitehurst had left the

18 Isle of Capri Casino in Kansas City and he left -- it

19 showed him leaving, and he left via a public entrance.

20 Now, if he'd have left through the employee entrance,

21 there was a key monitor, that these sensitive keys have a

22 file on them that like if you're familiar with when you --

23 a shoplifting prevention system, when you walk out through

24 the door, alarm goes out and reminds the employee that

25 they have that sensitive key on them.

0027

1 And that night that he left through a

2 public entrance, and he left a little bit early for some

3 reason. I don't remember. But he left through a public

4 entrance, and so he avoided that alarm system.

5 And then the keys are all placed in a key

6 watcher box that gives off an alarm when the key isn't in

7 there when it should be in there. So when his keys, when

8 he was off duty and his key to the slot machine was not

9 in that watcher box, it set off an alarm. So they -- he

10 was called at home and asked about the keys, and I don't

11 know. They didn't talk about that conversation, didn't

12 testify to that conversation.

13 But he did drive back to the casino, and it

14 appeared from the video that he didn't enter back through

15 the -- well, more than appeared. He did not enter back

16 through the system that has the alarm on it. He came off

17 of a loading dock, and you could look at the video and you

18 could see a little white fob in his hand, and there was

19 testimony that that was the fob that set off the alarm if

20 you went out the employees' entrance.

21 And he disappeared off into the area where

22 it was testified, where the keys were then to be

23 placed back in the key watcher box. Then he came back and

24 he went to be interviewed by the state trooper, and at

25 that time he signed a statement that he had merely left

0028

1 the keys in his locker and forgot them. And I may have

2 just misrepresented that a little bit. He may -- when he

3 came back in, he may not have gone to put the keys back in

4 the key watcher box. He may have gone to put them in his

5 locker.

6 The crux of it is, the video shows he was

7 walking back in the loading dock with the keys, the casino

8 sensitive keys in his hand. And so the first time he was

9 interviewed, he denied taking them home and he left them

10 in the -- in his locker.

11 And then when he was confronted with this

12 video later in the second interview, he then admitted

13 that, yeah, I lied before and I went back out or I went

14 home and took the keys home, and I was afraid that I would

15 get fired for taking the keys home. And he basically

16 admitted that during the testimony.

17 So I -- I don't think I didn't have any

18 choice but to recommend that Mr. Whitehurst's license be

19 revoked.

20 CHAIRMAN SHULL: Are there any questions?

21 Is Mr. Whitehurst in the audience? Would you like to

22 speak?

23 MR. WHITEHURST: Yes, I would.

24 Mr. Commissioner, good morning. Let me give you a little

25 bit about myself. My name is James Whitehurst. My badge

0029

1 number is 121026. I've been in the gaming industry since

2 1994. I started at the Argosy Casino. We opened it up.

3 I worked there until '96 and then moved over to the

4 Isle -- the Hilton Casino. Hilton. And during that time

5 I've worked for certain dignitaries as Dusenberg, Rex

6 McMahon, Paula Woodruff, Elvin Seals and others, and I

7 guess Zubeck.

8 I guess you wonder why I'm dropping these

9 names. The reason I'm doing that is because if you ask

10 any of them and ask them to speak to my integrity, they'll

11 say that they all trusted me.

12 I will say I made a mistake, and I'm

13 deeply, deeply sorry that I made that mistake. And the

14 reason, however, being 78 years old, there's not too many

15 places you can find a job. And they had issued a memo

16 from the last incident that occurred about keys leaving

17 the premises, and it would have meant automatic

18 termination.

19 And at that time I was having a problem,

20 severe problem with my back, pain so severe until the

21 doctor would give me MRIs, CAT scans, and they couldn't

22 find out what the problem was about it. And they were

23 giving me heavy medication, hydrocodone, stuff like that.

24 So on the night in question, that Saturday

25 night, which was my last night of work for that week, when

0030

1 the graveyard shift tech came to work, he was doing a

2 conversion on some of the games, and I was in so much pain

3 that night that if I just take a breath it would just cut

4 my wind off.

5 To jump ahead of myself just for a bit, I

6 have a handicapped sticker due to the fact that I had

7 broke my femur earlier in the year, and I have titanium

8 rod going up and down. I have a handicapped sticker that

9 I had permission to go out that door. It was closer to

10 the parking lot, and I had permission to return. I didn't

11 try to avoid any detection devices.

12 So on the night in question, just before I

13 left, I took the keys off my chain and was going to the

14 key watch, when the tech that was coming aboard asked me

15 how to do that conversion on that new game that we were

16 doing. And since they had no supervision for that

17 Saturday night, his supervisor was off, and me being the

18 mentor, of course, I had no choice but to go out and help

19 him. So during that, I put the keys in my pocket.

20 When I helped him finish it, I was at the

21 closest exit, which I went and I went home. I'm not

22 denying I made a grave mistake. When I got a call that

23 Sunday morning -- this was Saturday night, 11 o'clock when

24 I got off. I got a call at nine-something Sunday morning

25 that the keys were missing. The key watch is supposed to

0031

1 go off one hour after your shift ends. When I got home, I

2 took a hydrocodone, two. I didn't take one. I took two,

3 which really knocked me out. So when they called and

4 asked did I have the keys, I said no. I said, let me look

5 in my pocket.

6 When I looked in my pocket, it was -- it

7 was hell. Excuse the expression. I saw my life go. I

8 knew my job was gone. I was heavily in debt. My wife was

9 sick with a heart condition, and I just knew my job was

10 gone, no question asked since they had told that. And

11 it's like a drowning man, I was fighting for my life.

12 Yes, I did lie. I apologize. But I was only trying to

13 protect my job.

14 So what happened, when they called me, I

15 took the keys back. And what I had in my hand, what he

16 said it was, I don't think it was the keys. But however,

17 that's a moot point.

18 What I'm here to do is beg you, please, I'm

19 in dire need of a job, and being 78 years old, I don't

20 think I could find another job. What precipitated that

21 also was, it was the end of the year and we were going to

22 get a large bonus which they give out, which would have

23 went a long ways of helping, and my wife and I had

24 depended on that to pay bills, and I knew I would lose it

25 all, that everything I know was gone, which it

0032

1 consequently happened anyway.

2 But I was fortunate enough to get a job at

3 the Argosy where I started, and which has helped. I beg

4 you, if at all possible -- excuse me -- please don't

5 revoke my license. Thank you.

6 CHAIRMAN SHULL: Are there any questions

7 for Mr. Whitehurst? Any further questions?

8 COMMISSIONER HAIS: I think, Mr. Chairman,

9 consistent with the earlier matter, it would not be a bad

10 idea for the Commission, particularly in view of the fact

11 that there are new commissioners, to confer in a closed

12 session. And so I would move that we reserve ruling on

13 the matter, as we did in the previous case, until we can

14 confer in closed session.

15 COMMISSIONER JONES: I second.

16 CHAIRMAN SHULL: Is there any further

17 discussion? Call the roll, please.

18 MS. FRANKS: Chairman Shull?

19 CHAIRMAN SHULL: Approve.

20 MS. FRANKS: Commissioner Jones?

21 COMMISSIONER JONES: Approve.

22 MS. FRANKS: Commissioner Hais?

23 COMMISSIONER HAIS: Approved.