vs. ) Case No. 07-4772PL
CHARLES J. ASHMORE, III, )
Respondent. )
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on December 18, 2007, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.
For Petitioner: Charles T. "Chip" Collette, Esquire
Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202
For Respondent: Charles J. Ashmore, III, pro se
Whether Respondent violated Florida Administrative Code Rule 61D-11.005(5)(b) and therefore also Section 849.086(14)(a), Florida Statutes, as alleged in the instant Administrative Complaint, and, if so, what penalty should be imposed.
On August 2, 2007, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) issued an Administrative Complaint alleging that Respondent had engaged in wrongdoing warranting the entry of "an [o]rder suspending or revoking Respondent's occupational license pursuant to Section 849.086(14)(a), Florida Statutes, and an order declaring the Respondent ineligible for an occupational license, and imposing a fine not to exceed $1,000." According to the Administrative Complaint, Respondent's wrongdoing was "engaging in an act which operated as a fraud upon a participant in a game and/or a cardroom operator, when the Respondent palmed a chip from the bank," which he thereafter "place[d] . . . in his tip box," in violation of Florida Administrative Code Rule 61D-11.005(5)(b) and therefore also Section 849.086(14)(a), Florida Statutes. By submission of a completed and executed Election of Rights form, Respondent "dispute[d] the material facts alleged in the Administrative Complaint" and "petition[ed] for a hearing involving disputed issues of material fact before
an administrative law judge with [DOAH], pursuant to Section 120.57(1), Florida Statutes." On October 18, 2007, the matter was referred to DOAH.
As noted above, the final hearing in this case was held on December 18, 2007. Four witnesses testified at the hearing: Robert Fronrath, Christopher Fisher, Christopher Hock, and Respondent. In addition to these four witnesses' testimony, 6 exhibits (Petitioner's Exhibits 1 through 6) were offered and received into evidence. With the agreement of both parties, the evidentiary record was left open for the receipt of a seventh Petitioner's Exhibit (Petitioner's Exhibit 7, a composite exhibit consisting of the documents in the Department's case file 2007-041785). Petitioner's Exhibit 7 was filed and received into evidence on December 31, 2007.
The deadline for the filing of proposed recommended orders was set at 30 days from the date of the filing with DOAH of the hearing transcript.
The hearing transcript (consisting of one volume) was filed with DOAH on January 22, 2008.
To date, neither the Department, nor Respondent, has filed any post-hearing submittal.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
At all times material to the instant case, Respondent held a Department-issued cardroom employee occupational license that expired June 30, 2007.
After his license expired, Respondent applied for a new cardroom employee occupational license. By letter dated October 22, 2007, the Department advised Respondent that his application had been denied based upon the same alleged wrongdoing with which he had been charged in the instant case.
The afternoon of November 15, 2006, Respondent was working as a dealer in the cardroom at the Mardi Gras Racetrack and Gaming Center (Mardi Gras) in Hallandale, Florida.
At approximately 3:00 p.m. on that date, Respondent was manning Table #7, one of the "20 regular[2] poker tables"3 in the Mardi Gras cardroom.4 On the table directly in front of Respondent was an "imprest tray" (also known as the "bank").5 To the right of the "imprest tray" was a slide-activated "drop box" used to collect and temporarily store the rake6 (that is, the house's take) for each hand.7 To Respondent's left was a "tip box," which had a "drop slot" through which only one chip at time could be dropped.8 Positioned above the table was a fixed, surveillance camera, which continuously captured and recorded
the activities at the table.9 The images caught by the camera could be viewed in real-time on the monitors in the cardroom's surveillance room.10
At 3:06 p.m. the hand being played at Table #7 had just ended. After giving the winner his winnings and gathering the "mucked" (that is, discarded) cards on the table, Respondent, with his right hand, took the five one-dollar chips (representing the "rake") that were on the front "ledge" of the "drop box" and put them on the table in front of the "imprest tray." He then, again with his right hand, took a five-dollar chip from the "imprest tray" and placed it on the front "ledge" of the "drop box" to replace the five one-dollar chips that he had just removed (Removed Chips).11
As Respondent was getting the five-dollar chip from the "imprest tray," the winner of the hand tossed on the table a one-dollar chip as a tip for Respondent (Tip Chip), and it rolled to a stop right next to the Removed Chips.
Using his right hand, Respondent moved the Tip Chip away from the Removed Chips. He then picked up the Removed Chips.
As he was picking up the Removed Chips with his right hand, Respondent moved his left hand (which had been palm-down on the "mucked" cards he had gathered) to the "imprest tray," where it remained for approximately a second,12 before he placed
it, in a semi-clenched position, on the table to the left of the "mucked" cards. As he was moving his left hand away from the "imprest tray," he did not hold it (the hand) palm-up to the camera to show that it was empty. In failing to do so, he violated "one of the rules at Mardi Gras" that dealers are expected to follow.
As he was repositioning his left hand, Respondent took the Removed Chips in his right hand and placed them in the "imprest tray." He then, with his now-empty right hand, pulled the "drop box" slide. On his second try, the five-dollar chip on the box's "ledge"(representing the "rake") fell into the box.
Respondent next turned his attention to the Tip Chip that was on the table. He picked it up with his right hand, transferred it to his left hand, and then dropped it in the "tip box."
Christopher Fisher, the Mardi Gras' dayshift surveillance supervisor, was in the cardroom's surveillance room observing Respondent at the time.13 It appeared to Mr. Fisher that Respondent was depositing two chips in the "tip box."14
Mr. Fisher thereupon reviewed the video recording of the hand that had just concluded to "find out where [Respondent had] got[ten] that second chip from." When he "played it the third time," Mr. Fisher "came to the conclusion that [Respondent] had put his left hand into the bank and took the chip from there."
Mr. Fisher immediately contacted his supervisor, Christopher Hock, Mardi Gras' surveillance director.
After reviewing the video recording of the incident, Mr. Hock concurred with Mr. Fisher's conclusion that Respondent had taken a chip from the "imprest tray" and dropped it into the "tip box."
Respondent was terminated from his dealer position at Mardi Gras for "theft," effective November 15, 2006.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
Section 849.086, Florida Statutes, authorizes the "playing of certain games in the state at facilities known as cardrooms which are to be located at licensed pari-mutuel facilities."
The Department has been delegated the authority to "administer [Section 849.086, Florida Statutes] and regulate the operation of cardrooms under this section." § 849.086(4), Fla. Stat.
No person may operate a cardroom without having a Department-issued cardroom operator license. § 849.086(5), Fla. Stat.
Persons "working in a cardroom as a cardroom manager, floor supervisor, pit boss, dealer, or [engaged in] any other activity related to cardroom operations while the facility is conducting card playing or games of dominoes must hold a valid cardroom employee occupational license issued by the [Department]." § 849.086(6)(a), Fla. Stat. "No licensed cardroom operator may employ or allow to work in a cardroom any person unless such person holds a valid occupational license."
§ 849.086(6)(c), Fla. Stat.
"Cardroom employee occupational licenses . . . expire June 30th of every year." Fla. Admin. Code R. 61D-11.009(7).
The Department "may deny a license or the renewal thereof, or may suspend or revoke any license, when the applicant has: violated or failed to comply with the provisions of [Section 849.086, Florida Statutes] or any rules adopted pursuant thereto." § 849.086(14)(a), Fla. Stat. It may also "impose an administrative fine not to exceed $1,000 for each violation against any person who has violated or failed to comply with the provisions of this section or any rules adopted pursuant thereto." § 849.086(14)(c). Fla. Stat.
As it did in the instant case, "[t]he [Department] may bring administrative charges against any person not holding a current license for violations of statutes or rules which occurred while such person held an occupational license, and the
[Department] may declare such person ineligible to hold a license for a period of time."15 § 550.105(5)(d) Fla. Stat.; and
§ 849.086(6)(f), Fla. Stat. ("The provisions specified in s. 550.105(4), (5), (6), (7), (8), and (10) relating to licensure shall be applicable to cardroom occupational licenses.").
Among the rules the Department has "adopted pursuant to [Section 849.086, Florida Statutes]" is Florida Administrative Code Rule 6D-11.005. It provides, in pertinent part, that "[n]o person shall either directly or indirectly: [e]ngage in any act, practice, or course of operation as would operate as a fraud or deceit upon any participant in a game, or any cardroom operator." Fla. Admin. Code R. 61D-11.005(5)(b).
The Department may take disciplinary action against a current or former licensee only after that person has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. § 120.60(5), Fla. Stat.
An evidentiary hearing must be held if requested by the current or former licensee when there are disputed issues of material fact. §§ 120.569 and 120.57(1), Fla. Stat.
At the hearing, the Department bears the burden of proving that the current or former licensee engaged in the conduct, and thereby committed the violation(s), alleged in the charging instrument. Proof greater than a mere preponderance of
the evidence must be presented for the Department to meet its burden of proof. Clear and convincing evidence of the licensee's or former licensee's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Beshore v. Department of Financial Services, 928 So. 2d 411, 413 (Fla. 1st DCA 2006); Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and
§ 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").
Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . .
the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to
the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(citing with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether the Department has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits the Department from taking disciplinary action based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental
Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
The Administrative Complaint in the instant case charges Respondent with "engaging in an act which operated as a
fraud upon a participant in a game and/or a cardroom operator, when [he] palmed a chip from the bank," which he thereafter "place[d] . . . in his tip box," in violation of Florida Administrative Code Rule 61D-11.005(5)(b) and therefore also Section 849.086(14)(a), Florida Statutes.
The key piece of evidence offered by the Department at hearing in support of this charge was a copy of the video recording (in DVD format) of Respondent's alleged theft (which was received into evidence as Petitioner's Exhibit 1). The undersigned has painstakingly reviewed this exhibit, carefully watching it in its entirety numerous times, without ever actually seeing Respondent take a chip from the "imprest tray" and put it in his "tip box." While the undersigned did observe Respondent act and move in a suspicious manner, consistent with Respondent's having committed the theft with which he has been charged, the undersigned is unable to state, "without hesitancy," based upon his review of Petitioner's Exhibit 1 and the other record evidence (including the testimony of Mr. Fisher and Mr. Hock), that Respondent did indeed engage in such thievery.16 The record evidence therefore is insufficient to support a finding of Respondent's guilt, and the charge against him must be dismissed (with his eligibility for a new cardroom employee occupational license remaining unimpaired). See State v. Norris, 168 So. 2d 541, 543 (Fla. 1964)("[M]ere suspicion is
insufficient. The proof should be clear and convincing."); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994)("The evidence was not clear and convincing that appellant and Angela maintained an inappropriate personal relationship rather than a teacher/student relationship prior to their marriage. While the facts may raise a suspicion of wrongdoing, they do not rise above mere suspicion. Speculation, surmise and suspicion cannot form the basis of disciplinary action against a teacher's professional license. . . . Having found no competent evidence beyond speculation, surmise and suspicion that an inappropriate relationship existed between appellant and Angela, the charges against appellant cannot be sustained."); Palm Beach County School Board v. Laakso, No. 01-4839, 2003 Fla. Div. Adm. Hear. LEXIS 1005 *28 (Fla. DOAH November 21, 2003)(Recommended Order)("[W]hile the record supports a suspicion that from time to time Respondent claimed to be more incapacitated than he really was on one or more occasions when he failed to report to work or when he called in and reported that he was in too much pain to work, there is no clear and convincing evidence that he ever did so."); Department of Health, Board of Medicine v. Patz, No. 00-0671, 2000 Fla. Div. Adm. Hear. LEXIS 5276 *21 (Fla. DOAH
July 6, 2000)(Recommended Order)("Respondent's failures to cooperate with Dr. Seely is not clear and convincing evidence that the Respondent was impaired at that time or at any other
time. At most, it raises doubts or suspicions as to the reasons for the Respondent's lack of cooperation. Such doubts and suspicions, coupled with other information provided to the Petitioner, might well have been sufficient to establish probable cause for the issuance of an order compelling the Respondent to submit to a mental or physical examination, but they are not a substitute for the clear and convincing evidence required in proceedings of this nature."); Department of State, Division of Licensing v. Rocha, No. 94-4887, 1995 Fla. Div. Adm. Hear. LEXIS 4368 n.12 *12 (Fla. DOAH March 14, 1995)(Recommended Order)("There is reason to suspect that the Respondent was engaged in a high speed chase, but suspicions cannot take the place of clear and convincing evidence."); and Department of Insurance v. Johnson, No. 89-5729, 1990 Fla. Div. Adm. Hear.
LEXIS 6219 n.8 *28 (Fla. DOAH November 5, 1990)(Recommended Order)("Some of the evidence raises a strong suspicion that there may have been some improprieties in the Respondent's handling of the Hajek matter, as well as in the handling of the Kline matter, but suspicions are an insufficient basis for the imposition of discipline in a case where the burden of proof is by clear and convincing evidence.").
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department issue a Final Order dismissing the Administrative Complaint against Respondent.
DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2008.
ENDNOTES
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2007).
2 There were an additional ten tables in the cardroom available for tournaments.
3 Three different kinds of poker games were played at these tables: Texas Hold'em, Omaha, and Seven Card Stud.
4 Pursuant to Florida Administrative Code Rule 61D-11.004(2), "[d]ealers [are] not . . . allowed to regularly deal at the same
table, and [must] be shifted to a different table at least every three hours."
5 An "imprest tray" is "an area on a card table in which a predetermined dollar amount of chips, tokens, or U.S. currency is kept by the dealer." Fla. Admin. Code R. 61D-11.001(7). "When a new dealer comes on duty at a card table, the new dealer must count all of the cash and chips or tokens in the imprest tray before accepting responsibility for it, or the new dealer must supply his or her own imprest tray." Fla. Admin. Code R. 61D-11.004(3). Florida Administrative Code 61D-11.012(10) requires that:
At the close of each shift, the currency, chips and tokens in the imprest tray at each card table shall be reconciled to their predetermined beginning balances.
The last dealer shall be responsible for the currency, chip and token balance in his/her tray.
The cardroom operator will document any discrepancies in the reconciliation of the imprest trays or bank on Form DBPR PMW-3650, Cardroom Daily Control Sheet, adopted and incorporated by Rule 61D-12.001, Florida Administrative Code.
6 See Fla. Admin. Code R. 61D-11.024 ("The set fee rake-off shall be called at the beginning of each hand. The set fee rake-off shall be placed in a designated rake circle or drop box slide and shall remain in the designated circle or slide until a winner is declared and paid. The set fee rake-off shall then be dropped into the table drop box. A rake taken as a percentage of the pot shall be collected and placed in a designated rake circle or drop box slide immediately upon the conclusion of the round, hand, or game. The rake taken as a percentage of the pot shall then be dropped into the table drop box prior to the beginning of another round, hand, or game.").
7 Florida Administrative Code Rule 61D-11.020 sets forth the following "Card Game Drop Box Procedures" that cardroom operators must follow:
Each card table shall have one drop box with a drop slot which when activated will cause the rake or ante to drop directly into the drop box. The card game drop box shall be a locked container marked with a permanent number corresponding to the permanent number on the card table. The locked container shall be locked to the card table and shall be separately keyed from the drop box itself.
All card game drop boxes shall be removed from their respective card table no later than at the conclusion of each day's authorized cardroom activity. Card game drop boxes shall be removed without any interruptions so that the markings on the boxes are clearly visible and will be stored in a secure place or immediately counted and the count documented for accounting transaction purposes.
The count of the drop box must be in compliance with the requirements set forth in the cardroom operator's internal control system.
8 Florida Administrative Code Rule 61D-11.021 sets forth the following "Card Game Tip Box Procedures" that cardroom operators must follow:
9 See Fla. Admin. Code R. 61D-11.025, which is entitled, "Cardroom Electronic Surveillance," and provides as follows:
10 As required by Florida Administrative Code Rule 61D-11.025, there was also a PTZ video camera capable of monitoring the activities at the table (when turned on and operated by a staff member). It, however, was not in operation at the time of the incident in the instant case.
11 This exchange was in accordance with "standard [Mardi Gras cardroom] procedure."
12 Respondent testified at hearing that what he was "doing [was] rearranging the chips in the tray," explaining that "[t]hey oftentimes fall over, sometimes from the sleeve of [his] shirt."
13 Table #7 was one of six tables that Mr. Fisher was "watching" on the monitors in the surveillance room.
14 In his testimony at hearing, Respondent explained that what Mr. Fisher saw was "not two chips going into that [tip] box," but rather "a second attempt [on Respondent's part] to drop [the Tip Chip] after he missed [the slot] the first time."
15 Respondent's license expired June 30, 2007, approximately one month before the Department's filing of the instant charge against him.
16 Mr. Fisher and Mr. Hock gave what was, in effect, eyewitness testimony, but it was based upon their viewing of the same video recording that the undersigned has seen and determined to be insufficient to clearly and convincingly establish Respondent's guilt of the theft with which he has been charged. Other than Respondent (who gave exculpatory testimony), no one who was at Table #7 at the time of the alleged theft testified at hearing. It is also worthy of note that no evidence was presented of any "reconciliation" done (pursuant to Florida Administrative Code Rule 61D-11.012(10)) at the end of Respondent's shift on November 15, 2006, that revealed any chip missing from the "imprest tray" that Respondent had used at Table #7 that day.
Charles T. "Chip" Collette, Esquire Department of Business and
Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202
Charles J. Ashmore, III
David J. Roberts, Director Department of Business and
Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202
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.
