19-002390PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Dachiell Rios Status: Closed Recommended Order on Wednesday, September 18, 2019.

Summary: Respondent engaged in cheating at the poker table by marking cards. His ejection and permanent ban from Isle Casino Racing Pompano Park supports a permanent ban from any pari-mutuel facility in Florida.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Petitioner,

vs. Case No. 19 - 2390

DACHIELL RIOS,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, an Administrative Law Judge with the Division of

Administrative Hearings, on August 5, 201 9 , by video

teleconference at sites in Miami and Tallahassee, Florida.

APPEARAN CES

For Petitioner: Jason Walter Holman, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

For Respondent: Dachiell Rios , pro se

250 Northwest 55th Court

Miami, Florida 33126

STATEMENT OF THE ISSUE

Whether Respondent was ejected and permanently excluded from

a facility as stated in the Admini strative Complaint, and, if so,

what sanction should be imposed.

PRELIMINARY STATEMENT

On April 3, 2019, the Division of Pari - Mutuel Wagering

( " Division " or " Petitioner " ) filed an Administrative Complaint

against Respondent. The Administrative Complaint a lleged that

Respondent was permanently excluded from PPI, Inc., the facility

known as Isle Casino Racing Pompano Park ( " Isle Casino " ) on

March 12, 2019 , and that Respondent was subject to permanent

exclusion from all licensed pari - mutuel facilities in the State

of Florida , based on his permanent exclusion from Isle Casino on

March 12, 2019.

The Division received Respondent ' s Election of Rights form

on or about April 25, 2019, wherein Respondent requested a formal

hearing pursuant to sections 120.57(1) and 1 20.569(2)(a), Florida

Statutes. In his E lection of R ights, Mr. Rios disputed that he

was ejected or permanently excluded by Isle Casino.

At the hearing, Petitioner presented the testimony of John

Joseph Keenan and William Smith ; and offered six exhibits, all of

which were admitted into evidence. Respondent testified on his

own behalf and offered no exhibits.

The one - volume Transcript of the final hearing was filed on

August 23, 2019 . The parties agreed upon September 13, 2019, as

the date for filing prop osed recommended orders .

Petitioner ti mely submitted its Proposed Recommended Order

on the agreed - upon date. Respondent did not file a proposed

recommended ord er or any post - hearing submittal .

References to statutes are to Florida Statutes (201 8 ),

unless otherwise noted.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

pari - mutuel wagering, slot machines, and cardroom operations

pursuant to chapters 550, 551, and section 849.086, Florida

Statutes.

2. At all times material to t his case, Respondent was a

patron of Isle Casino .

3. At all times material to this case, Isle Casino was a

facility operated by a permit holder authorized to conduct pari -

mutuel wagering and to operate slot machines and a cardroom in

the State of Florida.

4. Respondent offered no tangible evidence suggesting that

he was not excluded from I sle Casino.

5. Respondent ' s date of birth is February 3, 1983.

6. John Joseph Keenan is the d irector of c ompliance and

s afety for Isle Casino. He has been with Isle C asino for more

than ten years. He began as a c ompliance o fficer, became

c ompliance m anager in 2012, and then d irector of c ompliance and

s afety in 2014.

7. On March 9, 2019, several people at a poker table

noticed " something was going on " with Mr. Rios an d reported it to

the poker supervisor. At this time, poker management and

security reviewed surveillance video to determine if the

allegations were true.

8. The allegations against Mr. Rios were that he was doing

something suspicious with the cards used at the table. During

inspection of the deck that was used, Isle Casino noticed

markings on the cards. R eview of the s urveillance video showed

Mr. Rios shielding the cards with his hands and performing an

action with his thumb.

9. A close inspection of t he cards in play at the single

deck poker game shows that slits were made for the high cards in

the deck, i.e. , aces, kings, queens, jacks and tens. The marks

were made with Mr. Rios ' s thumb nail. He etched a line in high

cards in the poker deck and space d the lines so the progression

from ace to ten was visible by the placing of the slits downward

along the edge of the cards so marked . This was done so he was

able to determine who had the high cards at the poker table to

get an advantage in the game.

1 0. The markings , which were made on the cards, gave

Mr. Rios a competitive advantage because he would know who had

the high cards at the table. He could essentially see in the

hand s of the other card players whether h is likelihood of win ning

the hand was increased .

11. Mr. Rios sat directly to the left of the poker dealer,

in what is known as " S eat 1. " He would be able to see all the

cards going out to the players, and was the first player to

receive his cards.

12. Mr. Keenan testified that Jason Cluck was the d irector

of s urveillance at the time of the complaint against Mr. Rios.

13. In an email on March 11, 2019, Mr. Cluck sent Isle

Casino ' s investigative report to Petitioner ' s investigator,

William Smith. Mr. Keenan testified that he was copied on the

email.

14. Mr. Keenan also testified that photographs were

attached to the email from Mr. Cluck to Mr. Smith on March 11,

2019. The ten photographs, admitted into evidence in this matter

as Exhibit 3, show as follows:

a. Photograph 1 shows a full de ck of cards;

b. Photograph 2 shows where the cards were marked, with

arrows pointed down at the cards;

c. Photograph 3 shows a marking on the ace of diamonds;

d. Photograph 4 shows cards in the upright position where

markings were made at the top rig ht corner;

e. Photograph 5 shows another single card with markings on

the side;

f. Photograph 6 shows high cards, a king and a queen, with

markings;

g. Photograph 7 shows a marking on the bottom left corner

of a card;

h. Photograph 8 show s marking on two cards, on the top left

corner; and

i. Photographs 9 and 10 are surveillance stills showing

Mr. Rios at the poker table.

15. Mr. Keenan testified that the photographs and video

stills are true and correct representations of what occurred on

March 9 , 2019.

16. Based on the incident reports, video, and photographs

with the marks, Isle Casino concluded that Mr. Rios was

attempting to manipulate the game. A ccordingly , Isle Casino gave

Mr. Rios a n ejection from the c asino .

17. Mr. Keenan testified that Mr. Rios had a " Players Club "

card with Isle Casino, which is how he was identified as the

individual making markings on the cards. The " Players Club " card

is swiped whenever an individual plays at a table and , in this

instance, has information that identifie d Mr. Rios by name .

18. On March 12, 2019, Mr. Rios was permanently excluded

from Isle Casino. Mr. Keenan testified that he is familiar with

the Notice of Exclusion issued to Mr. Rios in this matter.

19. An individual who has been issued a perm anent exclusion

from Isle Casino is not permitted future entry into the facility.

If caught in the facility, he could be deemed a trespasser . Once

a player has been excluded, th e individual ' s " Players Club "

account would be inactivated and would provide I sle Casino with

an alert if the individual attempted to use the account.

20. Mr. Rios left the casino before the exclusion form

could be presented to him. The subject of the exclusion does not

have to be present when the exclusion is handed down.

21. On cross - examination by Respondent, Mr. Keenan

testified that the cards had been inspected and contained no

impermissible markings prior to Mr. Rios playing. Mr. Rios sat

down, made gestures with his hands, and made indents on the

cards. Players at the t able notified Isle Casino personnel to

investigate, and the y determined that Mr. Rios made the

indentations on the card , which resulted in the conclusion to

eject him and permanently exclude him from the casino.

22. Mr. Smith testified that he has worked at the Division

for seven years as an investigator. He was the author of the

document that was entered into evidence as the " Office of

Investigation, Investigative Report , " dated March 12, 2019.

23. The report concluded that Mr. Rios has been excluded

fr om Isle Casino , which made him a candidate for exclusion from

all pari - mutuel facilities in the S tate of Florida. When

Mr. Smith was made aware of Mr. Rios ' s actions, he immediately

went to the Isle Casino to investigate. He personally inspected

the inde nted cards and viewed the video surveillance of the

incident.

24. When viewing the DVD of Mr. Rios ' s actions, Mr. Smith

observed Mr. Rios marking the upper left part of the cards,

turning the cards around in order t o also mark the bottom right

part of th e cards.

25. Mr. Smith testified that the marks he personally saw on

the card matched the actions that he saw Mr. Rios commit on the

video.

26. Based upon his personal observation of the video

surveillance , his review of the still photographs from the video

surveillance , the observations described to him by additional

personnel at Isle Casino , and his personal inspection of the

marked playing cards, Mr. Smith agreed that Respondent engaged in

cheating , which led to his being banned from Isle Casino. He

expressed the Division ' s interest in ensuring that individuals

banned from one pari - mutuel facility for cheating not be

permitted to take his or her craft to other pari - mutuel

facilities in Florida.

27. His conclusion that Mr. Rios should be banned from all

Florida pari - mutuel facilities was based on his validation of the

action taken by Isle Casino following their investigation of the

allegations brought to their attention by Respondent ' s fellow

players.

28. Mr. Rios first testified that he thought he w as playing

cards at the Hard Rock C asino on the date of the incident at Isle

Casino. When confronted with the photographs of him standing

before the Isle Casino cashier, however, he admitted to playing

cards there on the date in question. He said the pho tos of the

cards in a player ' s hand showing the indentations along the upper

left and lower right corners were not of his making , although the

surveillance video proves otherwise.

29. Mr. Rios denied cheating in any way and testified he

did not see any cards that had been marked as described by

Mr. Keenan and Mr. Smith. He stated that he believed the cards

had not been inspected prior to the game and that any marks on

the cards were probably there when the cards were put into play

at his game. He broug ht no witnesses or evidence to support his

contention.

30. Mr. Rios testified that he was not familiar with the

procedure involved in excluding patrons from a pari - mutuel

facility.

CONCLUSIONS OF LAW

3 1 . The Division of Administrative Hearings has

ju risdiction over the subject matter of this proceeding and the

parties thereto under sections 120.569 and 120.57(1).

32. The Division has the burden to prove by clear and

convincing evidence that Respondent was excluded from Isle

Casino.

33. The applicabl e disciplinary statutes in this proceeding

are penal, and so they " must be construed strictly in favor of

the one against whom the penalty would be imposed. " Munch v.

Dep ' t of Prof ' l Reg., Div. of Real Estate , 592 So. 2d 1136, 1143

(Fla. 1st DCA 1992); Ca mejo v. Dep ' t of Bus. & Prof ' l Reg. , 812

So. 2d 583 , 584 (Fla. 3d DCA 2002).

34. The clear and convincing standard of proof has been

articulated by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to b e 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) (quoting with

approval from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983) (further citations omitted)).

35. At all times material to this incident , Isle Casino was

a facility operated by a permit holder authorized to conduct

pari - mutuel wagering in the State of Florida.

36. Section 550.0251(6) provides , in relevant part:

In addition to the power to exclude certain

persons from any pari - mutuel facility in this

state, the division may exclude any person

from any and all pari - mutuel facilities in

this state for conduct that would constitute,

if the person were a licensee, a violation of

this chapter or the rules of the division.

The division may exclude from any pari - mutuel

facility within this state any person who has

been ejected from a pari - mutuel facility in

this state or who has been excluded from any

pari - mutuel facility in another state by the

governmental department, agency, commission,

or authority exercising regulatory

jurisdiction over pari - mutuel facilities in

such other state. ( e mphasis added ).

37. Based upon the above - quoted statute and his perm anent

exclusion from Isle Casino on March 12, 2019 , Respondent is

subject to permanent exclusion from all licensed pari - mutuel

facilities in the State of Florida.

38. In order to exclude an individual, the Division must

prove that the individual has been ejected from a pari - mutuel

facility in this state or that the individual exhibited conduct

that would constitute, if the individual were a licensee, a

violation of chapter 550 or the rules of the Division.

39. Clear and convincing evidence supports that I sle Casino

appropriately ejected Mr. Rios and permanently banned him from

the facility on March 12, 2019. Moreover, the Division ' s

independent investigation of the facts and circumstance s

surrounding Mr. Rios ' s ban from Isle Casino validate the

facility ' s action taken on that date.

40. Further, in addition to the Division having authority

to exclude Mr. Rios from all pari - mutuel facilities as a result

of being ejected from one facility, Mr. Rios ' s conduct also

constitutes conduct that , if Mr. Rios were a licensee, would be a

violation of c hapter 550 or the rules that govern the chapter.

41. Florida Administrative Code Rule 61D - 11.00 5 (4) states

the following :

(4) No person shall, either directly or

indirectly:

(a) Employ or attempt to employ any devi ce,

scheme, or artifice to defraud any

participant in a game or the cardroom

operator.

(b) Engage in any act, practice, or course

of operation that would constitute a fraud or

deceit upon any participant in a game or the

cardroom operator.

(c) Engage i n any act, practice, or course

of operation with the intent of cheating any

participant or the cardroom operator.

42. By marking cards, Mr. Rios ' s conduct violated

r ule 61D - 11.00 5(4) (a) - (c), regardless of whether he is a

licensee. As a result, Mr. Rios is subject to exclusion from all

pari - mutuel facilities in the State of Florida. The action

proposed to be taken by the Division is appropriate under the

facts presented here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division of Pari - Mutuel Wagering

issue a final order permanently excluding Dachiell Rios from all

pari - mutuel facilities in the State of Florida.

DONE AND ENTERED this 1 8 th day of September , 2019 , in

Tallahassee, Leon County, Fl orida.

ROBERT S. COHEN

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 1 8 th day of September , 2019 .

COPIES FURNISHED:

Jason Walter Holman, Esquire

Division of Pari - Mutuel Wagering Department of Business and

Professional Regulation

2601 Blair Stone R oad

Tallahassee, Florida 32399

(eServed)

Dachiell Rios

250 Northwest 55th Court

Miami, Florida 33126

Halsey Beshears, Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ray Treadwell, General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Louis Trombetta, Director

Division of Pari - Mutuel Wagering

Department of Busine ss and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

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 e xceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.