LETTERS: GAMING PANEL ADHERED TO THE LAW

To the editor:

Your newspaper recently printed an editorial regarding the regulatory requirements for riverboat gambling that contained a number of false statements. Because you continue to disseminate false information on this subject, I feel compelled to respond and set the record straight.

On at least two occasions, you have declared that riverboats were supposed to be capable of cruising the Missouri and Mississippi rivers. This is simply not true. The original law, adopted by the people, granted a specific exemption from cruising for the Admiral and five other sites along the downtown St. Louis riverfront. In addition, the legislation exempted all boats from cruising from the beginning of November until the end of March.

Furthermore, the Tourism Commission had the authority to set the minimum number of cruises from April until October. Therefore, the boats could be docked for substantial periods during these months. Moreover, the original referendum allowed the boat operator to operate while remaining docked for "mechanical problems, adverse weather or other conditions adversely affecting safe navigation."

This leads us to the reason Missouri's gambling boats are permanently docked. Upon receiving information from the U.S. Coast Guard and the U.S. Army Corps of Engineers that rivers in Missouri present certain safety hazards that must be accounted for, the Legislature adopted a procedure for evaluating safety risks. The riverboat gaming statute provides that all boats "shall cruise, unless the commission finds that the best interest of Missouri and the safety of the public indicate the need for continuous docking." (Section 313.805(15), RSMo) The statute also provides that, in order for a boat to remain dockside, the applicant must demonstrate that the project "would benefit land-based development and permanent job creation." Therefore, the law clearly instructs the commission to consider projects that have significant investments in "land-based development."

The statute requires the commission to hold hearings to determine whether it is safe for each riverboat to cruise. The result of each of these hearings has been that it is unsafe for vessels of this size, carrying thousands of passengers, to cruise, particularly on the Missouri River. The Gaming Commission has received uncontroverted testimony from dozens of experts, including the Coast Guard, who have attested to the perils of large passenger vessels cruising in high-traffic areas on the Missouri River. I would be happy to submit the thousands of pages of testimony received by the commission on this subject for your review.

The testimony by these experts regarding the perils of placing large passenger vessels in the navigable portions of these rivers was alarmingly evidenced by the recent incident at the Aztar riverboat in Caruthersville. As you may be aware, a 30-by-70-foot barge, half-loaded with gravel, broke loose and struck the boarding ramp of the Aztar casino. Tragedy was avoided, and no one was injured because the Gaming Commission had ordered the riverboat to remain dockside, thus minimizing the risk of collision and maximizing the utilization of rescue facilities. However, the incident demonstrates that the safest location for the facilities is in a protected basin off the navigable waterway. The Coast Guard has consistently informed the commission that protected basin represent the safest mode of operation for riverboat casinos.

If you believe that cruising riverboats are the best public policy, you should explain your rationale for this belief. However, the law had never required that all boats cruise, that any boat cruise all the time or that any boat cruise when it is unsafe to do so. The fact that misinformation may have been disseminated regarding the content of the original referendum should not be the basis for criticizing the commission's well-reasoned policy regarding whether excursion gambling boats should or should not cruise.

The editorial goes on to say that the gaming commission "interpreted" state law in such a manner that was "a direct contradiction to the Constitution." Please read the following language directly from the statute defining the Missouri and Mississippi and make your own judgment as to whether the Gaming Commission "interpreted" the statute incorrectly:

"Missouri River" and "Mississippi River" [means] "the water, bed and banks of those rivers, including any space filled by the water of those rivers for docking purposes in a manner approved by the commission but shall not include any artificial space created after May 20, 1994, and is located more than 1,000 feet from the closest edge of the main channel of the river as established by the United States Army Corps of Engineers."

The statute defines "dock" as:

"The location ... which contains any natural or artificial space, inlet, hollow or basin, in or adjacent to a bank of the Mississippi or Missouri rivers, next to a wharf or landing ... [for] gambling excursion [passengers] but shall not include any artificial space created after May 20, 1994, and is located more than 1,000 feet from the closest edge of the main channel of the river as established by the United States Army Corps of Engineers."

Pursuant to well-established canons of constitutional interpretation, the Gaming Commission is obligated to presume the constitutionality of all statutes. It has no authority to declare a statute unconstitutional. All the currently licensed boats located in basins were subject to lengthy public hearings designed to evaluate whether the riverboat was located in a manner allowed by the statute. The commission heard expert testimony on the subject and solicited testimony from the public. Each basin was approved after a determination that it complied with the statutory definitions previously defined.

On only one occasion was the constitutionality of a location questioned. In that instance, the commission ruled that because the statute defined the Missouri River as including artificial basins, that the boat was located on the river. Although the decision of the Gaming Commission could have been appealed to the Western District Court of Appeals and then to the Supreme Court, no such appeal was filed. Later, in the Akin case, a respected circuit court judge would issue a ruling similar to that of the commission, thus indicating that the law on this issue is not quite as clear as your editorial would lead us to believe.

However, it is true that the Supreme Court disagreed with the lower court and declared the definition of "river" in the gaming statute invalid to the extent that it conflicts with the court's ruling that an artificial basin must be "filled with water, that touches the surface stream [of the river] (for considerable distances)" and thereby "contiguous to the surface stream [of the river]." Therefore, the law has now changed, and the commission must enforce the new law.

This brings me to the crux of the editorial wherein it asks rhetorically, "If no new licenses can be granted for boats in moats, why haven't the licenses of the other boats in moats been suspended?" The commission recently answered this question. Exactly 17 days (including Christmas and New Year's Day) after the Akin decision became final, the commission sought to enforce the Akin opinion by issuing preliminary disciplinary complaints against those riverboat operators that it believes are not in compliance with the court's ruling. The commission efforts were delayed because of a court order that is currently being appealed. In the meantime, the commission is evaluating its options for further proceedings.

If the preliminary disciplinary orders are issued, they will not become effective for 30 days, during which time each licensee is afforded the opportunity to request a hearing. If such a request is filed, the riverboat will be allowed to continue operating pending the outcome of the hearing. At the hearing the riverboat licensee will be given the opportunity to prove that it complies with the Akin ruling. The hearing will be conducted by an independent hearing officer who will make a recommendation to the commission. The five members of the commission will ultimately be responsible for deciding the matter. If the ruling is adverse to the licensee, it can appeal to the Western District Court of Appeals and then to the Supreme Court.

Despite the claims of the editorial, the taxpayers can be assured that the Gaming Commission will continue to follow the rules and enforce the law. The people have voted to have riverboat gambling. It is the Gaming Commission's responsibility to implement that decision precisely according to the rules set forth in the statutes by the Legislature. Anyone bothering to read the rules will see that the commission has adhered to its charge. The Akin decision changed a portion of the statutes, and the commission is now doing its job by enforcing the new rules.

KEVIN P. MULLALLY, Deputy Director

Legal and Legislative Affairs

Missouri Gaming Commission

Jefferson City