11-002779PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Neil E. Waigand, Jr. Status: Closed Recommended Order on Wednesday, November 9, 2011.

Summary: $1000 fine for the failure of a licensed slot machine tech to log in the reason for opening the main compartment of a slot machine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2779PL

)

NEIL E. WAIGAND, JR., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on October 5, 2011.

The par ties, attorneys for the parties, witnesses, and court

reporter participated by videoconference in Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: David N. Perry

Assistant General Counsel

Division of Pari - Mutuel Wagering

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

For Respondent: Neil E. Waigand, Jr., pro se

906 North Riverside Drive, Apartment 8

Pompano Beach, Florida 33062 - 4623

STATEMENT OF THE ISSUE

The issue i s whether Respondent accessed two slot machine s

without logging the purpose s for opening the machine s , in

violation of Florida Administrative Code rule 61D - 14.0 23(2) , as

in effect in March and April 2010 .

PRELIMINARY STATEMENT

By Administrative Complaint dated August 12, 2010,

Petitioner alleged that, at all material times, Respondent has

held a slot machine professional individual occupation al

license, bearing license number 7463121 - 1051. The

Administrative Complaint alleges that, at all material times,

the Isle of Capri in Pompano Beach employed Respondent as a slot

machine technician.

Count I of the Administrative Complaint alleges that, on

March 28, 2010, R espondent accessed the " logic compartment " of a

certain Isle of Capri slot machine and failed to log the reason

he was in the machine in the machine entry authorization log

(MEAL) book . Count I alleges that, on April 2, 2010, Respondent

accessed the " logi c compartment " of a second Isle of Capri slot

machine and failed to log the reason he was in the machine in

the MEAL book .

Count I alleges that Petitioner has issued two warning

letters to Respondent for failures to log in the MEAL book the

times he was in two different slot machines on October 26, 2009,

and January 22, 2010. Count I alleges that the fine in this

case should reflect these prior violations.

Count I cites rule 61D - 14.023(2), which , as in effect at

the time of the alleged violations, pro vided : "A log of

compartment door openings and closings shall be maintained

inside the locked compartment of the slot machine. The log

shall include the time and reason for the opening." Citing

section 551.107(11), Florida Statutes, which authorizes a f ine

of up to $5000 for each violation of chapter 551, the

Administrative Complaint requests a fine of $500 for the

violations described in Count I .

Count II alleges that, on May 5, 2010, Respondent left open

the doors of four Isle of Capri slot machines w hile he walked to

another section of the casino. Count II cites rule

61D - 14.023(1), which provides that all slot "machine doors shall

be locked and monitored by door access sensors, which shall have

the ability to detect when a door is opened or moved fro m its

fully closed and locked position . . .." Citing section

551.107(11), the Administrative Complaint requests a fine of

$100 for this violation.

At the start of the hearing, the Administrative Law Judge

struck Count II on the ground that the cited rul e did not

prohibit the alleged a cts and omissions of Respondent. Early in

the hearing, it became apparent that the evidence to be offered

would pertain to the opening of the main door, rather than the

logic com partment of each slot machine. T he Administr ative Law

Judge granted Petitioner's oral motion to amend Count I to

substitute "main door" for "logic compartment . "

At the hearing, Petitioner called two witnesses and offered

into evidence seven e xhibits: Petitioner Exhibits 1 - 4, 6, 9,

and 11. Respond ent called one witness and offered into evidence

two exhibits : Respondent Exhibits 9 and 10 . All ex hibits were

admitted except Petitioner Exhibit 11, which was proffered.

The court repor ter filed the transcript on

October 20, 2011. Neither party filed a proposed recommended

order.

FINDINGS OF FACT

1. At all material times, Respondent has been employed as

a licensed slot machine technician with Isle of Capri. A slot

machine technician maintains and repairs slot machines.

Respondent holds a slot mach ine professional individual

occupation al license, bearing license number 7463121 - 1051.

2. As relevant to this case, a locked main door provides

access to the main compartment of the slot machine. Inside the

main compartment of the slot machine is the ME AL book for

logging all openings of the main compartment. Within the main

compartment also is a locked logic compartment, which contains

the computer chip that controls the operations of the slot

machine. The logic compartment is also secured by a specia l

tape that is broken whenever someone accesses the logic

compartment.

3. Within the main compartment also are a coin hopper,

which holds coin s that are available for payout s, as well as a

locked drop box or billbox, which hold s coins and bills that ar e

collected periodically by the drop team. Although it is not

entirely clear, a belly door apparently permits access to the

dr op box or billbox without going through the main compartment.

Several times weekly, a drop team enters each slot machine,

throug h the be lly door, to empty the drop box or billbox.

4. On March 28, 2010, and April 2, 2010, Respondent

entered the main compartments of two slot machines in connection

with his employment. The MEAL book for each machine was

available inside the machi ne to log the activity. On these

occasions, Respondent did not enter the logic compartments of

these two slot machines.

5 . On each of these occasions, Respondent logged the times

in and out of each slot machine , but failed to log the purpose

for his ent ering each machine . For the March 28 activity, 24

other entries are shown on the same page of the MEAL book, and

all 24 report the time s in and out and the reason s why the

persons entered the machines. For the April 2 activity , f ive

other entries are sho wn on the same page of the MEAL book, and

all five report the time s in and out and the reasons why the

persons entered the machines.

6 . Isle of Capri determined that Respondent's failure to

log reasons for entering the slot machines on March 28 and Apr il

2 violated Isle of Capri policies. The resulting "performance

document" notes that Isle of Capri had previously counseled

Respondent for similar failure s to make the required entries in

MEAL books. The "performance document" states that Isle of

Capri will retrain Respondent, but a repeat of this conduct may

result in termination. As required by the performance document ,

to reflect understanding of the i ssues discussed in the

document, Respondent signed the document, but did so "under

protest."

7 . On November 6, 2009, Petitioner sent Respondent a

"warning letter." The letter explains that, on

October 20, 2009, Respondent failed to complete the MEAL bo ok

with the time in and out of a specific slot machine. The letter

states that this conduct violates rule 61D - 14.024, which

requires a log of logic compartment door openings and closings

so as to include the time and reason for the opening. The

letter wa rns that any future violations of slot machine laws or

rules could result in an administrative fine or suspension or

revocation of Respondent's slot machine occupational license.

8 . On February 5, 2010, Petitioner sent Respondent a

"warning letter." The letter explains that, on

November 26, 2009, Respondent failed to complete the MEAL book

with the time in and out of a specific slot machine. The letter

states that this conduct violates ru le 61D - 14.023(2). The

letter warns that any future violations of slot machine laws or

rules could result in an administrative fine or suspension or

revocation of Respondent's slot machine occupational license.

9 . Respondent offered multiple defenses, including

entrapment (never explained) and unfairness (the drop t eam is

not required to log their op enings of the belly door). The lone

relevant defense was that Respondent had entered the main

compartment, not the logic compartment, as Count I charged. It

was apparent to the Administrative Law Judge, however, that

Re spondent recognized this to have been a pleading error by

Petitioner, and Respondent was not prejudiced by the

Administrative Law Judge 's allowing Petitioner to amend the

Administrative Complaint to substitute "main compartment" for

"logic compartment . "

10. T wo important mitigating factor s appl y . As testified

by the Isle of Capri general manager, electronic monitoring of

all entries into the slot machine has rendered the rule

obsolete. Likely for this reason, the current version of rule

61D - 14.023 no l onger contains the requirement set forth in

former rule 61D - 14.023(2).

11. On the other hand, nothing in the record suggests that

Respondent relied on the proposed changes to rule 61D - 14.012

when he failed to record the reasons for entering the main

co mpartment on two occasions in the spring of 2010. After

observing Respondent testify, the Administrative Law Judge finds

that Respondent tends to view himself as the final arbiter of

the rules that govern licensed slot machine technician s .

Respondent's o bstinacy , recent past problems in documenting the

servicing of secured areas of slot machines, and commission of

two violations (although in a single count) militate in favor of

a fine that will re focus Respondent's attention on the critical,

well - defined role that he plays within a sensitive, carefully

regulated industry.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat.

13 . Florida Administrative Code R ule 61D - 14.023(2)

provides:

A log of compartment door openings and

closings shall be maintained inside the

locked compartment of the slot machine. The

log shall include the time and reason for

the opening.

14. Petitioner must prove the material allegations by

clear and convincing evidence. Dep ' t of Banking and

Fin v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

15. Petitioner has proved that Respondent violated rule

61D - 14 - 023(2) , as alleged in Count I, by failing twice to log in

openings of the compartment doors of two slot machines in the

spring of 2010.

16. Section 551.107(11), Florida Statutes, provides: " The

division may impose a civil fine of up to $5,000 for each

violation of this chapter or the rules of the division in

addition to or in lieu of any other penalty provided for in this

section. "

RECOMMENDATION

It is

RECOMMENDED that the Division of Pari - Mutuel Wagering enter

a f inal order dismissing Count II of the Administrative

Complaint, finding Respondent guilty of Count I of the

Administrative Complaint, and imposing an administrative fine of

$ 1000 .

DONE AND ENTERED this 9 th day of November, 2011, in

Tallahassee, Leon Co unty, Florida.

S

___________________________________

ROBERT E. MEALE

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 9 th day of November, 2011.

COPIES FURNISHED:

Neil E. Wa igand, Jr.

906 North Riverside Drive, Apartment 8

Pompano Beach, Florida 33062 - 4623

David Perry, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

Milton Champion, Director

Department of Business and

Professional Regulation

Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Layne Smith, General Counsel

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.