Monday May 17, 2010 9am courtroom 2A Judge Fred Cuthbertson
Please note:No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.
Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)
9-9:40 were taken up by a divorce hearing.
9:41 David Britton asking to call Dan Albertson out of order at 1:30 pm.
Judge - We'll see.
Joan - We have several witnesses here on vacation day.
Judge - four days for trial available.
OPENING ARGUMENTS - Joan Mell for plaintiff (m)
.Gambling Tax Ordinance adopted in violation of State law.
.Illegal action court can void.
David - Object to legal argument.
Judge - That is why we are here.
.Ruston identified Police as enforcement arm.
.Thought they had win win situation with Gambling ordinance.
.Sally Everding as code writer codified ordinance.
.This was a conflict of interest.
.Process used to pass ordinance allowed no public comment.
.Point Defiance Cafe and Casino is the only business affected by the Gambling ordinance.
.Procedures are important as there is an expectation of decorum.
.Jane Hunt, Dan Albertson and Bob Everding were all appointed.
b - Objection - lack of foundation.
Judge - Has been 2 to 3 readings.
.Steve Fabre allowed no input adopted without any public comment whatsoever.
.No attention was paid to enforcement costs, law enforcement needs.
.Council had no clue as to use of tax funds.
.No analysis of costs was done.
.Summary of what available to do none accomplished.
.Wanted elimination of the Town of Ruston.
.Violated limited power court needs to recognize that.
OPENING ARGUMENT - David Britton for defendant.
.Have families jobs businesses. (Ruston officials?)
.Study Session on Gambling tax held in 2008.
.Plaintiff, Mr. Fabre contacted all council members by telephone and email asking to keep sliding scale.
.Ordinance 1253 was enacted.
.Mr. Fabre paying $12,000 per month chose not to pay higher.
.Mr. Fabre lobbied all members personally did not attend.
.Study Session scheduled separately.
.No further action was taken at study session.
Judge - Public attended no comments allowed.
.July 7th was proposed originally brought to council.
.Advocated 20 percent tax rate max.
.Amended to 12 percent by Jane Hunt.
.Annual budget for law enforcement $400 thousand dollars.
.Order of magnitude increase in Gambling Tax needed.
.$32 thousand in Gambling taxes needed.
.Procedural question whether four yes votes required. Stebner absent.
.Ruston not a charter city.
.Wasted quite a bit of time on Ordinance.
Judge - Separation of Powers, interfering with Legislative function.
.Mr. Fabre cannot second guess legislation not my argument.
Judge - two thirds vote was ministerial.
.Procedures were disregarded. Policy not affect of law.
.Whole policy was not conspiracy to raise taxes and put out of business.
Judge- 1453 rule 22 does not have force of law.
.Plaintiff has not come up with ...
Judge- interrupts, What if Everding wants resolution to have Girl Scout week, Gambling week. No resolution to pass bill on first reading. Is that legal?
.No effect, absolutely no authority.
.Could have passed Ordinance but used resolution to wrap up.
Judge- We need to frame issues.
Judge- Call witnesses, reply in summation.
WITNESS Fred Wilson, WA State Gambling Commission sworn in.
.Required to regulate gambling in SW region.
.Know Steve Fabre saw 4-5 times per month.
.Dropped to class F buy in at table games.
.Started in 2004 regulated - 4 to 5 times per month max 4 hours min half hour.
Joan- Mr. Fabre complying with gambling act?
.Made under age checks failed once second OK. Business normal.
.Known Steve (Fabre) for a long time. He would call with questions.
Joan- Ruston filed complaint in 2008?
.Situation new police chief on board got call from her (Sharon Reese).
.Called to ask Gambling Commission to enforce actions.
Joan- To what extent Gambling Commission involved with Local law enforcement?
.Under age emphasis and liquor violations.
Wilson step down.
BREAK- 15 minutes.
WITNESS Karen Pickett Ruston resident (M-Joan Mell . for Karen Pickett)
.Employed by ASARCO 22 years.
.I care about my community and what is going on.
.Public was not allowed to comment at all on gambling tax ordinance.
David- Objection.
Judge- Overruled.
Provide names of council?
David- Objection.
Judge- Stipulated.
.Not allowed to participate in public sessions.
.Public comment gradually eliminated.
.Only general comments not allowed on issues.
.Mayor had police in attendance to hold public.
Mell- When did you get notice of increase in gambling tax?
.At study session.
m-Purpose of tax increase?
.Council indicated to increase revenue.
m-Your impression of ordinance?
.Enforcement of gambling activities.
m-Was ordinance adopted without public input?
.Yes.
CROSS EXAMINATION David Britton
b- You were on Ruston Town Council? (b for Britton)
k- Yes, also Civil Service. (k for Karen)
b- Not on Council in 2008?
k- Civil Service commission
k- Study session 2008 way meeting was run audience was restless.
b- Agenda was published for council meeting?
. Study session notice published?
k- General tax notice no gambling tax notice.
Judge- If there is a question who do they go to?
k- Town Attorney.
WITNESS Jim Reinhold former Police Chief in Ruston
r- Police officer in Ruston 2002-2008. (r for Reinhold)
r- Mr. Fabre purchased building town was excited to have Cafe and Casino.
m- Shows Reinhold picture of Casino. (m for Mell)
r- Before it had psychedelic pictures outside, Rock n Roll.
m- Lighting?
r- Poker neon lighting. Rear parking lot no lighting.
m- Security cameras?
r- Yes. Mr. Fabre installed. Caught 20 seconds on Pearl street. Caught crime off of facility.
m- How many calls there?
r- Very minimal not often. More calls at Unicorn tavern.
r- Administrative hearing referred to gambling commission.
r- Our policy walk thrus also Ruston Inn. More calls Unicorn tavern.
r- Had no separate budget for Point Defiance Cafe and Casino (PDC&C).
r- Came out of annual budget. 24 hours for town.
r- Did bar checks, note of presence, left.
m- Did Town council ask for activity logs?
r- No.
m- Did Ruston rely on your knowledge?
r- No.
r- My budget, cost of living, special authorization or circumstances.
r- Mr. Fabre cooperated absolutely. One incident.
m- Was that in alley way behind Casino?
r- Shooting, not relevant to Casino. Person was robbed by three persons walking down alley. Walked back into Casino for help. Casino security called 911. Had nothing to do with Casino.
b- Why?
r- Part of law enforcement activity.
b- Your presence helps with crime prevention.
b- Funds, no line item for gambling.
r- Can't recall.
b- Do you draft law enforcement activity and report to council? Do you recall submitting report, commentary during weekend?
Judge- Objects to line of questioning.
m- Not part of duties.
r- Recollect yes, my report.
r- Document, philosophy, moratorium in Tacoma weren't sure of affect on Ruston. Silver Dollar sixth avenue, establishment on Ruston Way closed.
b- Are you attorney?
r- No.
b- Any legal training?
r- Training yes.
Judge- Memo anticipating influx of gamblers same as Taste of Tacoma.
r- My anticipation, memo only. I had to accommodate gambling moratorium.
Judge- Unicorn has gambling?
r- no.
12:10 RECESS until 1:30 pm.
-30-
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