ALJDEC

97A-022-GAM-RESUBMT · Department of Gaming · 1998-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 1998 APPEARANCES: Shirley Wahl, Assistant Attorney General representing the Arizona Department of Gaming (“Department”). David E. Wicks, Appellant, appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether the Department is justified in revoking Appellant’s State Certification. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT 1. David E. Wicks, Appellant, is a non-tribal member formerly employed by the Tonto Apache Nation at the Mazatzal Casino as a maintenance steward. Appellant worked in the casino for two years, until the casino terminated his employment and the Tonto Apache Tribal Gaming Office revoked his tribal gaming certification on November 11, 1997, an action the Tonto Apache Tribal Gaming Commission subsequently affirmed. 2. This mater arises out of the Department’s decision to summarily revoke Appellant’s State Certification on December 16, 1997. The Department based its determination on evidence that Appellant constructed a fake bomb in the casino, carried it about the casino, and exhibited it to at least two supervisory co-workers. 3. During the hearing in this matter, Stephen W. Hillary, Investigator for the Tonto Apache Tribal Gaming Office, testified about his investigation into the allegations against Appellant. Investigator Hillary explained that the casino requested a tape review of the security tapes for the evening of October 11, 1997. The casino subsequently terminated Appellant’s employment, based on the tapes and the interviews of various people. Soon thereafter, the Tonto Apache Tribal Gaming Office revoked Appellant’s tribal gaming certification, an action the Tonto Apache Tribal Gaming Commission affirmed. Investigator Hillary also testified about his own investigation of the matter and the basis for the Department’s summary revocation of Appellant’s State Certification on December 16, 1997. Inspector Hillary’s testimony is credible. 4. Appellant did not dispute so much the Department’s case as to what happened in this matter; rather, he contested the characterization of the prop he created as a “bomb” and urged that his conduct did not cause any actual harm to anyone. 5. The preponderance of the evidence establishes that, while on a break from working at the casino on the evening of October 11, 1997, Appellant obtained an empty box addressed to the casino. Appellant also obtained a towel, at least one rock, and some papers. He filled the box with the foregoing items and taped the box closed. Appellant then wrote, in large black letters on the underside of the box, “BOOM!”. Appellant then walked about several areas of the casino. Although the evidence does not establish that casino customers actually observed and appreciated what Appellant carried with him through the casino, the evidence does establish that he could have been observed and that his conduct could have caused panic. Appellant eventually entered the dining area of the casino and placed the box on a table, covering it with his jacket. Shortly thereafter, 11:45 p.m., Les Ainsworth , a Security Supervisor with the casino, approached Appellant. Mr. Ainsworth asked Appellant about the box. Appellant showed him the box and explained that it could be used as a prop in an evacuation exercise of the casino. Mr. Ainsworth told Appellant to destroy the box. About this time, 11:55 p.m., Gary Cooper, Maintenance Supervisor, approached the table and inquired about the box. He told Appellant to destroy the box and admonished him that his action was “out of bounds.” (State’s Exhibit 2). The box was destroyed thereafter. 6. When asked during the hearing in this matter why he constructed the fake bomb, Appellant merely stated that he could not explain his reasons. 7. As a result of Appellant’s conduct in this matter, the Tonto Apache Tribal Council, the governing body of the Tonto Apache Tribe, banned Appellant “from the boundaries of the Reservation indefinitely.” (State’s Exhibit 6).

APPLICABLE LAW The Tonto Apache Nation and State of Arizona signed the Tonto Apache Nation and State of Arizona Gaming Compact (“Compact”) applied in this matter in July 1993, pursuant to a congressional mandate that Tribal-State Compacts be negotiated between a Nation and a State in order for Class III gaming activities to be conducted on the Indian Lands of a Community. See Indian Gaming Regulatory Act, Public Law 100-497, 25 U.S.C. §§2701-2721 and U.S.C. §§1166-1168. Section 5(f) of the Compact states that “[t]he State Gaming Agency may revoke, suspend or deny a State Certification” when any of the following apply to an applicant or holder of certification: 1. Has violated, failed or refused to comply with the provisions, requirements, conditions, limitations or duties imposed by any provision of this Compact or any provision of any State Gaming Agency rule, or when any such violation has occurred upon any premises occupied or operated by any such person or over which he or she has substantial control; xxx 6. Fails to prove, by clear and convincing evidence, that he, she or it is qualified in accordance with the provisions of this Section; xxx 8. Has had a gaming license issued by any state or tribe in the United States revoked or denied; 9. Has demonstrated a willful disregard for compliance with gaming regulatory authority in any jurisdiction, including suspension, revocation, denial of Application or forfeiture of license; xxx 12. Is a person whose prior activities, criminal record, if any, reputation, habits and associations pose a threat to the public interest of the Tribe or the State or to the effective regulation and control of Class III Gaming, or creates or enhances the dangers of unsuitable, unfair or illegal practices, methods and activities in the conduct of Class III Gaming, or the carrying on of the business and financial arrangements incidental thereto.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Director of the Arizona State Gaming Agency pursuant to the 1993 Compact between the State of Arizona and the Tonto Apache Tribe. 2. Unfortunately, the Compact fails to specifically address the issue of burden of proof in disciplinary proceedings such as the instant matter. Despite the Department’s revocation action prior to the hearing in this matter, the posture of this matter is more akin to a cease and desist action or summary suspension. In either case, the agency shoulders the burden of proof. There being no authority cited for treating this matter differently, this Judge concludes that the Department shoulders the burden of proof in this matter. The standard of proof binding the Department in proving it has justification for revoking Appellant’s State Certification is proof by a “preponderance of the evidence.” Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at 1182 (rev. 6th ed. 1990). 3. It may very well be that Appellant constructed the fake bomb and carried it about the casino with no intent other than to present an idea for an evacuation exercise. However, Appellant could have conveyed his idea without constructing a prop in the casino and then carrying it about the casino. Appellant’s conduct demonstrates extremely poor judgment; he should have recognized the inherent danger his conduct posed to the casino’s customers and his co-workers. The Department sustains its burden of demonstrating that Appellant violated §§5(f)(1), (6), (8), (9), and (12) of the Compact. 4. The record reveals no legitimate mitigating circumstance in this matter.

RECOMMENDED DECISION It is recommended to the Department that Appellant’s State Certification be revoked. Done this day, October 6, 1998.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

By _______________________________

-----------------------

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