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BEFORE THE
5 STATE OF
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8
9 Meeting
July 25, 2007
10 10:00 a.m.
Central Office
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1 AGENDA
2 PAGE
3 I. Call to Order 4:2
4 II. Minutes
A. June 27, 2007 4:19
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III. Consideration of Hearing Officer
6 Recommendations
B. Melody Kirsch
7 1. Resolution No. 07-051 6:3
C. Carnell S. Stevenson, Jr.
8 1. Resolution No. 07-052 11:23
D. Billy Hicks
9 1. Resolution No. 07-053 15:3
E. Ollina Boaz
10 1. Resolution No. 07-054 26:2
11 IV. Consideration of Relicensure of
Certain Suppliers
12 F. Midwest Game Supply Company
1. Resolution No. 07-055 32:12
13 G. Shuffle Master, Inc.
1. Resolution No. 07-056 32:12
14 H. WMS Gaming, Inc.
1. Resolution No. 07-057 32:12
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V. Consideration of Licensure of Level I/
16 Key Applicants
I. Resolution No. 07-058 33:24
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VI. Consideration of Extension of
18 Liquor License
J.
Harrah's
19 1. Resolution No. 07-059 35:18
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BEFORE THE
2 STATE OF
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5
6 Meeting
July 25, 2007
7 10:00 a.m.
Central Office
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COMMISSION MEMBERS PRESENT:
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Noel J. Shull, Chairman
15 Darryl T. Jones
Samuel J. Hais
16 Larry W. Plunkett, Sr.
Suzanne Bradley (Via Telephonically)
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Reported by:
20 Patricia A. Stewart, RMR, RPR, CCR 401
22 (573) 636-7551
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1 P R O C E E D I N G S
2 CHAIRMAN SHULL: Today Mrs. Bradley is going
3 to be with us by teleconferencing.
4 So if you'll call the roll, please.
5 MS. FRANKS: Chairman Shull.
6 CHAIRMAN SHULL: Present.
7 MS. FRANKS: Commissioner Jones.
8 COMMISSIONER JONES: Present.
9 MS. FRANKS: Commissioner Hais.
10 COMMISSIONER HAIS: Present.
11 MS. FRANKS: Commissioner Plunkett.
12 COMMISSIONER PLUNKETT: Present.
13 MS. FRANKS: Commissioner Bradley.
14 COMMISSIONER BRADLEY: Present.
15 Can you hear me?
16 CHAIRMAN SHULL: We can. Thank you,
17 Suzanne.
18 COMMISSIONER BRADLEY: Thank you.
19 CHAIRMAN SHULL: The first item will be
20 consideration of last month's minutes.
21 Are there any changes, additions or
22 deletions?
23 COMMISSIONER JONES: I'd like to make a
24 motion to approve the minutes of the June 27th, 2007
25 meeting.
5
1 COMMISSIONER PLUNKETT: I'll second that.
2 CHAIRMAN SHULL: Is there any further
3 discussion?
4 Call the roll, please.
5 MS. FRANKS: Chairman Shull.
6 CHAIRMAN SHULL: Approved.
7 MS. FRANKS: Commissioner Jones.
8 COMMISSIONER JONES: Approved.
9 MS. FRANKS: Commissioner Hais.
10 COMMISSIONER HAIS: Approved.
11 MS. FRANKS: Commissioner Plunkett.
12 COMMISSIONER PLUNKETT: Approved.
13 MS. FRANKS: Commissioner Bradley.
14 COMMISSIONER BRADLEY: Approved.
15 MS. FRANKS: By your vote you've adopted the
16 minutes of the June 27th, 2007 meeting.
17 CHAIRMAN SHULL: The next item is
18 Consideration of Hearing Officer Recommendations. I'm
19 going to turn it over to Mr. Hinckley.
20 MR. MCNARY: Mr. Chairman, members of the
21 Commission, good morning.
22 COMMISSIONERS: Good morning.
23 MR. MCNARY: General Counsel Chris Hinckley
24 will handle the matter concerning Melody Kirsch.
25 MR. HINCKLEY: Good, Mr. Chairman,
6
1 Commissioners.
2 COMMISSIONERS: Good morning.
3 MR. HINCKLEY: If you recall, the case
4 regarding Ms. Melody Kirsch, the Commission Resolution
5 07-051, was raised at last month's Commission meeting and
6 it was tabled. Ms. Kirsch appeared and requested the
7 matter to be tabled so that she may make inquiries into
8 getting legal representation and beginning the process of
9 possibly having her underlying felony conviction dismissed
10 by the court in which it took place.
11 I have not spoken to Ms. Kirsch since that
12 time. I understand, however, that she is present if the
13 Commissioners would like to make an inquiry.
14 CHAIRMAN SHULL: Ms. Kirsch.
15 MS. KIRSCH: Good morning. Thank you.
16 COMMISSIONERS: Good morning.
17 MS. KIRSCH: I have hired an attorney and
18 found that there will be no overturnment of the decision.
19 The prosecuting attorney, Jane Darst (phonetic sp.), said
20 that that is not a possibility, that she understands my
21 plight, but the suspended imposition of sentence means no
22 conviction.
23 Apparently I pled guilty to a felony crime
24 even though the crime that I committed was not a felony.
25 We were attempting to steal a case of beer. The charge
7
1 came out attempted stealing over 50.
2 I was 17 years old, did not have competent
3 counsel, and did not apparently research enough or know
4 what I was doing, signed, agreed that it was a felony,
5 because I was told that I would not have any problems the
6 rest of my life as long as I finished out my probation, no
7 felony conviction, and then here I am today after serving
8 nine years with a gaming license and enjoying my time with
9 the casino.
10 One of the gentlemen during one of my
11 interviews for my license asked me, said at that time,
12 what -- what changed you? What decided for you to have
13 judgment and go with the correct people? I became a
14 mother. I became a wife. I became interested in my
15 gaming career.
16 And I would ask that you consider today the
17 regulations that state I may be denied, which implies I
18 may not be denied.
19 That's just all it is.
20 CHAIRMAN SHULL: Are there any questions?
21 COMMISSIONER HAIS: Do we have a
22 recommendation from counsel?
23 MR. HINCKLEY: The underlying recommendation
24 of Mr. Stephen Stark, based upon the facts presented to
25 him at a hearing, was that the decision of the Commission
8
1 dated March 13th of 2006 would be affirmed and that the
2 denial of a license of Ms. Kirsch would be in effect upon
3 an order of the Commission. And that was due to the facts
4 as they existed then, which are the facts as they exist
5 today.
6 CHAIRMAN SHULL: Does the Commission have
7 any latitude in your opinion?
8 MR. HINCKLEY: What Ms. Kirsch referred to,
9 saying that persons committed -- they have been convicted
10 of felonies, that as a result the Commission may refuse an
11 occupational license, is somewhat correct.
12 However, there is another part of the
13 statute which says that a license shall not be granted to
14 an applicant that has pled guilty to or convicted of a
15 felony.
16 The part that she was talking about was the
17 Commission may refuse an occupational license when a
18 person has been convicted of a crime or has been found
19 guilty of, pled guilty to or pled nolo contendere to a
20 crime, including such findings or pleas in a suspended
21 imposition of sentence.
22 That is applicable to all cases of
23 misdemeanors and felonies, and it's for an applicant for a
24 gaming license.
25 The more controlling law here is the statute
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1 that says that that occupational license shall not be
2 granted.
3 It was an oversight. Ms. Kirsch did tell
4 the Commission upon an initial application that she did
5 have this arrest and conviction. It was not noted that it
6 was a felony, most likely because she did not know.
7 However, there appears to be no discretion
8 where the Commission would be able to overrule or vary
9 from this law in this case.
10 COMMISSIONER HAIS: We'd be violating the
11 statute?
12 MR. HINCKLEY: Correct. There is a process
13 by which Ms. Kirsch could appeal the Commission's
14 decision, by appealing the Commission's decision to the
15 Western District Court of Appeals.
16 They would be just simply once again looking
17 at -- at this time looking at whether or not the
18 Commission had the power to make the decision that it did.
19 If Ms. Kirsch were to ask -- I don't know what the Court
20 of Appeals would do -- but to revisit the facts might be
21 an option. But, once again, it would be controlled by the
22 law.
23 COMMISSIONER HAIS: Are you saying that the
24 Court of Appeals have been known to revisit facts from
25 time to time?
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1 MR. HINCKLEY: Believe it or not, Judge, I
2 think that's occurred.
3 COMMISSIONER HAIS: Okay.
4 CHAIRMAN SHULL: Are there other questions?
5 Is there a motion?
6 COMMISSIONER HAIS: Mr. Chairman, I would
7 move to approve the Resolution 06-500.
8 MR. HINCKLEY: I'm sorry. Resolution --
9 COMMISSIONER HAIS: I'm sorry. The
10 recommendation of the hearing officer denying the
11 occupational license of Ms. Kirsch.
12 COMMISSIONER PLUNKETT: I second that.
13 CHAIRMAN SHULL: Is there further
14 discussion?
15 COMMISSIONER HAIS: Well, let me just add to
16 it. I understand the equities of this, and I'm
17 sympathetic to it. And perhaps at one time Ms. Kirsch's
18 remedy might have been a suit in equity, when it was still
19 timely or some type of lawsuit against the gentleman or
20 lady who represented her, the attorney. I doubt that
21 either of those still exist as adequate remedies.
22 But I don't think this Commission has any
23 choice but to follow the law that we were sworn to follow,
24 harsh though it may be.
25 CHAIRMAN SHULL: Any further comments?
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1 Call the roll.
2 MS. FRANKS: Commissioner Shull.
3 CHAIRMAN SHULL: Approved.
4 MS. FRANKS: Commissioner Jones.
5 COMMISSIONER JONES: Approved.
6 MS. FRANKS: Commissioner Hais.
7 COMMISSIONER HAIS: Approved.
8 MS. FRANKS: Commissioner Plunkett.
9 COMMISSIONER PLUNKETT: Approved.
10 MS. FRANKS: Commissioner Bradley.
11 COMMISSIONER BRADLEY: I'd like to say,
12 unfortunately, I must approve the resolution also, being I
13 agree with Commissioner Hais. I approve it.
14 MS. FRANKS: By your vote you've adopted
15 Resolution 07-051.
16 MR. MCNARY: Did you turn her volume up?
17 MS. MCCARTHY: I did.
18 MR. MCNARY: Thanks.
19 Mr. Chairman, the next item will be handled
20 by Hearing Officer Stephen Stark.
21 MR. STARK: Good morning, Commissioners.
22 COMMISSIONERS: Good morning.
23 MR. STARK: The first case for me is
24 Mr. Carnell Stevenson.
25 Mr. Stevenson made application for a
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1 Level II occupational license with the Gaming Commission.
2 As part of that application process he had a duty to
3 reveal any type of criminal activity. He did disclose
4 three different incidents involving arrests.
5 As part of the application process, the
6 Gaming Commission does investigate, does their background
7 check, getting further records from the FBI and the
8 Highway Patrol.
9 And it was found out that Mr. Stevenson did
10 fail to reveal, failed to disclose on his application, two
11 items of a criminal record, one being a July 29th, 1990
12 arrest for robbery, second degree, and also a May 26th,
13 1994 assault, third degree, by the St. Louis Police
14 Department.
15 The Commission made a denial of his
16 application for his occupational license. Mr. Stevenson
17 requested the hearing. We did conduct the hearing.
18 The evidence clearly showed that there were
19 these two particular criminal activities of record
20 attributed to Mr. Stevenson.
21 Mr. Stevenson indicated that he did not
22 remember the incident with regard to the July 29th, 1990
23 robbery. As regards to the 1994 assault, he did remember
24 that as being a fight with his sister. His sister did not
25 press charges. He was not taken to the police station, so
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1 he felt that he was not arrested and that was nothing for
2 him to disclose on his application.
3 However, the Commission application process
4 does go through great efforts to warn that the term
5 "arrest" is very expansive.
6 In fact, there are several different forms
7 in the application in which the applicant signs indicating
8 that they understand how the Gaming Commission is defining
9 arrest, and it includes detained, held, taken into custody
10 for questioning, whether or not there was any criminal
11 charges made.
12 And it also includes the idea that if there
13 is a conviction or arrest record, even if it's a closed
14 record or a record that has been expunged, that there is a
15 need to disclose that information as well.
16 After Mr. Stevenson did receive his denial
17 letter, he did go to the police department to confirm the
18 records, and the police department records did show him
19 that there was no record of conviction.
20 So there was a big discussion about closed
21 records, but, nevertheless, the warning in the application
22 process is that even closed records have to be disclosed
23 as part of the application process.
24 So, therefore, I conclude and my
25 recommendation is that Mr. Stevenson failed to meet his
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1 burden of clear and convincing evidence that he would be
2 deemed suitable for licensure because of his failure to
3 disclose two past criminal incidents and, therefore, the
4 Commission's action to deny him his license should be
5 affirmed.
6 CHAIRMAN SHULL: Is Mr. Stevenson in the
7 audience and would he care to speak?
8 Are there any questions of Mr. Stark?
9 Is there a motion?
10 COMMISSIONER PLUNKETT: I make the motion we
11 approve Resolution 07-052.
12 COMMISSIONER JONES: Second.
13 CHAIRMAN SHULL: Further discussion?
14 Call the roll.
15 MS. FRANKS: Chairman Shull.
16 CHAIRMAN SHULL: Approved.
17 MS. FRANKS: Commissioner Jones.
18 COMMISSIONER JONES: Approved.
19 MS. FRANKS: Commissioner Hais.
20 COMMISSIONER HAIS: Approved.
21 MS. FRANKS: Commissioner Plunkett.
22 COMMISSIONER PLUNKETT: Approved.
23 MS. FRANKS: Commissioner Bradley.
24 COMMISSIONER BRADLEY: Approved.
25 MS. FRANKS: By your vote you've adopted
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1 Resolution No. 07-052.
2 MR. STARK: Thank you.
3 The next case is the case of Billy Hicks.
4 Again, this is an application, failure to disclose past
5 criminal records.
6 Mr. Hicks made his application. He did
7 disclose some prior offenses, but after investigation,
8 after submission of the application, the Commission did
9 find two arrest records, one in 1981 in
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11 arrest for receiving stolen property in January of 1997.
12 Mr. Hicks was a very credible witness. He
13 did indicate that the incident out in
14 basically he was in a crowd and a fight broke out.
15 Everybody was taken to the police station at that time.
16 It was something he just merely forgot about.
17 With regard to the second arrest with regard
18 to stolen property, Mr. Hicks was a manager of a furniture
19 store, and he explained that his assistant manager
20 actually was the recipient of the stolen property.
21 The law enforcement basically told him, if
22 you just return that property to the rightful owner, the
23 situation will be resolved completely. He did admit,
24 however, they did take him to the police station.
25 Based upon the regulatory authority of the
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1 Commission, legal authority does exist for a denial of an
2 application -- denial of an application for licensure for
3 failure to disclose past criminal records, whether it was
4 forgotten, whether it was somebody else involved. Just a
5 mere arrest, questioning by the police, counts as
6 something that needs to be disclosed.
7 Mr. Hicks failed to disclose that among his
8 application and, therefore, my conclusion and
9 recommendation is that the Commission's decision to deny
10 Mr. Hicks' license is appropriate and should be affirmed.
11 CHAIRMAN SHULL: Are there any questions for
12 Mr. Stark?
13 Is Mr. Hicks in the audience and care to
14 speak?
15 Mr. Hinckley, do you have any comments
16 regarding this case?
17 MR. HINCKLEY: I believe that the two
18 arrests, one occurred in
19 in
20 criminal -- make a criminal background check inquiry with
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22 criminal background check, which I believe was probably
23 the only way for him to make such a check.
24 They did both come back no records, and that
25 was -- and I agree with the hearing officer, that I did
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1 find Mr. Hicks to be credible, and the documents did
2 support what he had done prior to filling out his
3 application.
4 CHAIRMAN SHULL: Does the Commission have
5 the latitude with regard to this case?
6 MR. HINCKLEY: Yes, the Commission does have
7 some latitude with regard to an applicant as these were
8 not felony convictions as I read to you before.
9 You may, not shall, deny the license.
10 CHAIRMAN SHULL: And you did find Mr. Hicks
11 to be a credible witness?
12 MR. HINCKLEY: I did.
13 CHAIRMAN SHULL: Are there any other
14 questions?
15 COMMISSIONER HAIS: How did the Commission's
16 investigation turn it up if it wasn't a matter of record
17 with municipal --
18 MR. STARK: My understanding is that the FBI
19 and the Highway Patrol, the
20 maintains all records; whereas, the local jurisdiction may
21 expunge records or close them for privacy concerns and,
22 therefore, not reveal it to anybody that walks in the
23 door.
24 So the database of the FBI and the Highway
25 Patrol is much more comprehensive and maintains everything
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1 as opposed to having anything expunged from the record.
2 So with that, the Commission is able to access
3 that information, they've got it all basically.
4 MR. HINCKLEY: I guess to follow up, from
5 his position, I'm not sure that he could have entered that
6 and tracked it through the
7 It's not sure that the arrest will come up, and as a
8 result he mistakenly believed that, therefore, he did not
9 recall any arrests and that, therefore, no arrests took
10 place.
11 COMMISSIONER HAIS: And the disposition of
12 the stolen property case was that there was no
13 prosecution?
14 MR. STARK: That's my understanding.
15 He and his assistant manager were merely
16 taken to the police station, told to just return it to the
17 rightful owner and we'll forget about it.
18 But apparently the police officer made a
19 report, called it an arrest, submitted it into whatever
20 database there is that the FBI and Highway Patrol were
21 able to capture.
22 COMMISSIONER HAIS: The police officer
23 called it an arrest but they were not actually
24 incarcerated --
25 MR. STARK: That's my understanding.
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1 COMMISSIONER HAIS: -- no bond made, none of
2 the formal --
3 MR. STARK: No.
4 COMMISSIONER HAIS: How about with the other
5 one?
6 MR. STARK: The
7 I don't think that actually came up, that he was taken to
8 the police station in a crowd, and I'm sure there was some
9 type of processing done, but I don't recall if there was
10 any overnight stay.
11 COMMISSIONER HAIS: Are there any other
12 details what this crowd was about?
13 MR. STARK: Not that I recall. It was just
14 a street --
15 COMMISSIONER HAIS: Was it inside of an
16 establishment, like a bar or something, or was it --
17 MR. STARK: I think it was after hours,
18 after the bar closed, probably.
19 COMMISSIONER HAIS: I see.
20 Is that based on what was in the written
21 report?
22 MR. STARK: That's my remembrance of his
23 explanation. I didn't write it in the report.
24 COMMISSIONER HAIS: Do you have it there,
25 Mr. Hinckley?
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