STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on December 17, 2008, by video teleconference with sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: David Perry, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

For Respondent: Clivalee Mundle, pro se

4689 Northwest 22nd Street Coconut Creek, Florida 33063

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against

him, if any.

PRELIMINARY STATEMENT

On April 22, 2008, Petitioner Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, issued an Administrative Complaint against Respondent Clivalee Mundle, alleging he had violated several statutes regulating his conduct regarding his slot machine occupational license.

Respondent timely requested an administrative hearing regarding the allegations in that Administrative Complaint, and this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Marc Ripps and

1. Derek Washington, and Respondent testified on his own behalf.

   
   

   Additionally, Petitioner's Exhibits lettered A, F, H, and I were admitted in evidence.

   The Transcript of the final hearing was filed on January 20, 2009. Only Petitioner requested leave to file a proposed recommended order. That document was filed on January 30, 2009. Both documents have been considered in the entry of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent Clivalee Mundle was the holder of a slot machine occupational license issued by the State of Florida and numbered 7937616-1051. That license expired June 30, 2008, and has not been re-issued.

   2. At all times material hereto, Respondent was employed as a slot supervisor at The Isle Casino and Racing at Pompano Park, a licensed Florida pari-mutuel and slot machine facility located in Pompano Beach, Florida.

   3. On November 16, 2007, a senior attendant reported to the slot chip manager an incident involving Respondent. She reported that she had gone to the cage service window to use the computer. The cage is where the money is held in a casino.

   4. She reported that while she was there, Respondent came in and began assisting her. When he reached into his coat, a

      $100 bill fell out and onto the floor. She placed her foot next to the bill and asked Respondent if it were his. Respondent picked it up and acted, in her opinion, nervous.

   5. Employees at the casino are instructed to keep their own money in their wallets and to not have loose cash on them when they are on the casino floor. They are also instructed to keep any casino money in sight so that the money surveillance cameras can track it.

   6. Based upon the report he received, the slot chip manager contacted surveillance personnel and requested them to view the surveillance videos that recorded the incident. Upon doing so, those employees reported to him that Respondent had earlier obtained a $100 bill from the cage to pay out a jackpot on slot machine A-50-02 but that he subsequently never went to that machine to do so. Further, the videos showed that the jackpot on that machine had already been paid before Respondent obtained the $100 bill he obtained from the cage.

   7. Based upon that surveillance report, the slot chip manager viewed surveillance videos from prior dates. The review of the surveillance videos revealed the following transactions.

   8. On November 8, 2007, Respondent was at the cage service window filling out a paid-out cash slip to obtain a $100 bill when the slot chip manager came in. Rather than completing what he was doing, Respondent folded the form and put it in his pocket. Later that day, he turned in the paid-out slip and received a $100 bill. The form he filled out stated that he needed the money to settle a guest dispute. However, he never gave the money to anyone between the time he obtained it and the time he left the casino at the end of his shift.

   9. The surveillance videos for November 9, 2007, show Respondent filling out a paid-out slip at the cage, receiving a

      $100 bill, and concealing that bill inside a piece of paper in

      his coat pocket. The slip he filled out represented that he was obtaining the money for a guest dispute at machine A-15-05.

   10. Later that same day, he filled out another cage slip for a jackpot pay-out at machine A-50-08. When he received the

       $100 bill requested, he put it under a piece of paper on a clipboard. Surveillance videos showed that the jackpot on that machine had been paid out before Respondent obtained the $100. Surveillance videos did not show Respondent giving either of those $100 bills he obtained on November 9 to anyone in the casino.

   11. The videos show that on November 13, 2007, Respondent paid a jackpot to a customer who then gave Respondent her player's card. Respondent took her player's card to the player's card window, had a discussion with the attendant, and then returned to the player and returned her card. He then went to the cage service area, filled out a cage paid-out slip for

       $100 for guest satisfaction, placed the $100 underneath papers on a clipboard, and left the cage area. Between that time and the end of his shift, Respondent did not give that money to anyone.

   12. None of the monies Respondent obtained from the casino cage as described in the above Findings of Fact was used for a legitimate business purpose. Respondent failed to complete the

       transactions for which he allegedly received the monies. Rather, Respondent retained these monies for his own use.

   13. Respondent admits to dropping the $100 bill on November 16, 2007. His explanation is that he had previously left the casino and had picked up some relatives and taken them to his home. He stated that the $100 bill was given to him by one of those relatives so he could pick up formula and diapers on his way home. The surveillance videos do not show Respondent leaving the casino or returning prior to the incident.

   14. On November 29, 2007, Respondent was terminated from his employment by the casino.

   15. On February 7, 2008, The Isle Casino and Racing at Pompano Park issued to Respondent a Notice of Barrment [sic], which barred Respondent from the premises of the casino permanently.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

   17. The Division of Pari-mutuel Wagering is charged with the regulation of the pari-mutuel industry pursuant to Section 550.0251, Florida Statutes. In this proceeding, the Division has the burden of proving its allegations against Respondent by

       clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   18. The Administrative Complaint filed in this cause contains two counts. Count I alleges that since Respondent has been excluded for life from a slot machine licensee's facility, he should be excluded from all such licensed facilities. Count II alleges that Respondent is guilty of theft of slot machine revenue, in violation of Section 551.109(3), Florida Statutes.

   19. Section 551.109(3), Florida Statutes, prohibits anyone from excluding anything of value from the computation of revenues from slot machine activity and makes such conduct a felony. Further, Section 551.107(6)(a), Florida Statutes, authorizes the Division to deny, suspend, revoke, or refuse to renew any slot machine occupational license if the applicant or licensee has violated the provisions of Chapter 551.

   20. The Division has proven by clear and convincing evidence that Respondent on six occasions during the month of November 2007 falsely completed forms, obtained money from the cage, and converted the money to his own use. Each of these thefts was a violation of Section 551.109(3), Florida Statutes. The Division has proven its allegations contained in Count II of the Administrative Complaint.

   21. Section 551.112, Florida Statutes, authorizes the Division to exclude from any facility of a slot machine licensee

       any person for conduct that would constitute, if the person were a licensee, a violation of Chapter 551, Florida Statutes. The Division has proven by clear and convincing evidence that Respondent was permanently barred from The Isle Casino and Racing at Pompano Park for theft of slot machine revenue. The Division is authorized, therefore, to exclude Respondent from any facility of a slot machine licensee in this state.

   22. It is not necessary to address the Division's argument that Respondent can be barred from licensed facilities in this state because he was ejected from the casino. The incident report submitted to the Division by the casino specifically states that Respondent was not ejected from the casino, and the evidence offered in this proceeding is clear that Respondent was not ejected as that word is commonly understood. The statutory language contained in Section 551.112, Florida Statutes, does not require that a person be ejected; rather, it is sufficient that the person be excluded and Respondent's exclusion from the casino is uncontroverted.

   23. Accordingly, the Division has proven by clear and convincing evidence that Respondent is guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him.

   24. The Division seeks in this proceeding to exclude Respondent from all facilities of all slot machine licensees in

this state and to declare Respondent ineligible for re- licensure. Although Respondent has denied his guilt, he has offered no evidence in mitigation of any penalty to be assessed for his statutory violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered (1) finding Respondent guilty of the allegations in the Administrative Complaint filed against him, (2) excluding Respondent from all facilities of all slot machine licensees in the State of Florida, and (3) finding Respondent ineligible for a slot machine occupational license.

DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2009.

COPIES FURNISHED:

Clivalee Mundle

4689 Northwest 22nd Street Coconut Creek, Florida 33063

David Perry, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 08-004501PL

Orders for Case No: 08-004501PL