ALJDEC

97A-020-GAM · Department of Gaming · 1997-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 1997 APPEARANCES: Penny Taylor Moore, Assistant Attorney General, on behalf of the State No one appeared on behalf of the Appellant (Certificate Holder) ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT Melhem Riachi (Riachi), is currently certified as a Class III gaming employee by the Arizona Department of Gaming (Department). The certification is effective through June of 1998. In January, 1997, Riachi was working as a poker dealer at the Fort McDowell Casino. A complaint was made against Riachi by a customer and upon review of security video tapes, Riachi was seen stealing chips from the “pot” and also failing to follow the procedure of spreading the chips in front of his tray prior to depositing them. Riachi was contacted by the casino Investigations Manager, Robert “Larry” Sterling (Sterling). Riachi denied the accusation until being shown two occasions where he took extra chips for himself. Riachi claimed this was a mistake and offered to repay the money. Further review of surveillance tapes by Sterling showed Riachi had stolen approximately $50.00 from players during an hour and a quarter of dealing time on January 23, 1997. Riachi’s Tribal Gaming License at the Fort McDowell casino was revoked (subject to appeal), by letter dated February 6, 1997. By letter dated the same day, the Tribal Gaming Office also notified the Department of Riachi’s revocation. On June 19, 1997, Riachi filled out an Application for Certification and Tribal License Recommendation with the Gila River Indian Community. Although Riachi applied as a gaming employee transferee he was still required to fill out a complete application. Riachi answered “no” to question 12 on the Application which asks if he ever had a gaming license revoked. Riachi worked as a cage and vault cashier at the Gila River Casino. On August 7, 1997, an elderly patron of the casino complained that she had been shortchanged $100.00 by Riachi. A review of the videotape showed Riachi converted quarters to $226 for the patron who then wanted smaller bills. Riachi made change for a $20.00 and a $100.00 bill but not for the second $100.00 which the patron gave him. Riachi put the $100.00 bill in his cash drawer but it was not there when two “count downs” were done on Riachi’s cash drawer. The drawer should have had $100.00 extra but it balanced. The Matter was turned over to BIA law enforcement for prosecution and Riachi’s Tribal Gaming License was to be submitted to Gila River Gaming Commission for revocation. On August 8, 1997, Investigator Pablo Lopez (Lopez) of the Department was informed of the incident at the Gila River Casino, and prepared a report. On September 16, 1997, the Department sent a Notice of Revocation to Riachi based on the events at the Gila River Casino. Subsequently, Lopez obtained information relating to the theft at the Fort McDowell Casino in January of 1997and subsequent revocation of Riachi’s Tribal Gaming License. On October 22, 1997, the Department sent an Amended Notice of Revocation to Riachi. The Notice included additional allegations of violation of provisions of the 1993 Gila River Indian Community and State of Arizona Gaming Compact (Compact), based on the Fort McDowell information and subsequent investigation by Lopez. CONCLUSIONS OF LAW The provisions of the Compact are controlling for the purpose of forming the conclusions of this case. The cited sections of the Compact are paraphrased for the purpose of this Recommended Decision. The Amended Notice of Revocation alleges violation of Compact Section 5. Procedures for Tribal Licensing and State Certification (f) Grounds for Revocation, Suspension or Denial of State Certification: (5) Misrepresentation; (6) Failure to prove qualifications; (7) Subject to current prosecution or charges; (8) Had a gaming license revoked; (9) Has demonstrated a willful disregard for gaming regulatory authority; (10) Has pursued economic gain in an occupational manner in violation of the criminal law creating probable cause to believe that participation in gaming would be detrimental to authorized gaming; (12) Prior activities pose a threat to the Tribe, State or effective regulation of Class III Gaming or the business and financial arrangements incidental thereto. With respect to Section 5(f)(5), the Notification of Revocation dated February 6, 1997, from the Fort McDowell Tribal Gaming Office (Exhibit C) is sufficient evidence that Riachi was revoked. There was no evidence that he appealed or that the revocation did not take effect. Therefore the answer of “no” in the application submitted to the Gila River Gaming Commission, to the question of whether Riachi ever had a gaming license revoked, is a clear misrepresentation. The misrepresentation is material and requires no discussion. The grounds for the revocation are met under the cited provision. With respect to Section 5(f)(6), it is concluded that to the extent that any proof of this violation is not based on anything independent of what is relied on for the other violations, the allegation is duplicative. In addition, the failure to prove qualifications by convincing evidence appears to address the burden of an applicant rather than a person who is already certified. In the instant case the burden of proof is on the State by a preponderance of the evidence. The evidence presented in support of the cited provision does not constitute grounds for revocation in this case. With respect to Section 5(f)(7), there is insufficient evidence to conclude that Riachi has a current or pending prosecution, charge or a conviction under appeal. The fact that the matter was turned over to BIA Law Enforcement in August, 1997, does not satisfy the requirements of the cited provision. It would seem that determination of the current status of Riachi’s referral to law enforcement should not have been too difficult. The evidence presented in support of the cited provision does not constitute grounds for revocation. With respect to Section 5(f)(8), the conclusion in paragraph 1 of these Conclusions of Law sets forth the evidence relied upon for establishing the revocation of the Gaming License issued by the Fort McDowell Tribal Gaming Office. The evidence presented establishes grounds for revocation under the cited provision. With respect to 5(f)(9), the language of this provision is either duplicative in that if revocation of a license is the same as “…willful disregard for compliance with gaming regulatory authority …”, then that matter has been disposed of in paragraph 4 above, or the language of the provision is so vague as to require a reasonable person to guess at its meaning. The evidence on the procedure of the Fort McDowell Casino with respect to spreading the chips, is lacking a firm enough foundation to conclude that failure to follow the procedure constitutes “…a willful disregard for compliance with gaming regulatory authority…”. The evidence presented in support of the cited provision does not constitute grounds for revocation in this case. With respect to 5(f)(10), the theft of the $100.00 and Riachi’s subsequent activity surrounding the purloined money falls within the meaning of “…execution of an activity for financial gain” and is therefore “…pursuing economic gain in an occupational manner or context…”. The theft itself is a violation of the criminal laws. The evidence presented establishes grounds for revocation under the cited provision. With respect to 5(f)(12), the facts concerning Riachi’s activities at the Fort McDowell and the Gila River casinos, clearly establish grounds for revocation under the cited provision. RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Order entered in this matter, that the State Certification of Melhem I. Riachi, Identification No. 8767, be revoked. Done this day, December 16, 1997.

_________________________________ ALLEN W. REED Administrative Law Judge

Original transmitted by mail this ____ day of December, 1997, to:

Mr. Gary A. Husk, Director Department of Gaming ATTN: Linda Lairson 202 East Earll Drive, Suite 200 Phoenix, AZ 85012

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826