STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, STATE ATHLETIC )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4112

)

GEORGE MAKRES, As Manager For ) Robert Gilbert, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on April 22, 1985, at Miami, Florida.

APPEARANCES

For Petitioner: Karl M. Scheuerman, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: No appearance.

PRELIMINARY STATEMENT

This case raises the issue of whether a purse withheld by Petitioner, Department of Business Regulation, State Athletic Commission, pursuant to Section 548.054, Fla. Stat., should be forfeited for the boxer's alleged intentional failure to compete to the best of his ability and skill, in a match represented to be a contest.

At final hearing Petitioner called George W. Porter-- Executive Director of the State Athletic Commission, Alvin Goodman--a Deputy Commissioner of the State Athletic Commission, and Edward Echert--the referee who officiated the match.

Respondent failed to appear at final hearing, and no evidence was presented on his behalf.

Petitioner has submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. No proposed findings of fact and conclusions of law have been submitted on behalf of Respondent. To the extent any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.

FINDINGS OF FACT

1. Respondent, George Makres, was at all times material hereto the manager of Robert Gilbert, a professional boxer.

   
   

2. On October 24, 1984, a program of professional boxing matches was scheduled to held in the War Memorial Auditorium, Fort Lauderdale, Florida. Among the matches scheduled was the ten-round main event.

   
   

3. Prior to the commencement of the program, one of the fighters scheduled to participate in the main event suffered an injury which precluded his participation. Respondent proffered Robert Gilbert (Gilbert) as a substitute. Based on Respondent's assurance that Gilbert was an experienced fighter, was in good shape, and would give a good account of himself, the Executive Director of the State Athletic Commission approved his substitution for the injured fighter in the main event.

   
   

4. The main event, which matched Gilbert and Stevie Whetstone (Whetstone), lasted less than two rounds. During the first round Gilbert backpedaled from a pursuing Whetstone, and no blows of any significance were exchanged. In the second round, Gilbert exhibited the same retreating pattern. Approximately one and one-half minutes into the second round, Whetstone delivered an innocuous jab to the midsection of Gilbert, who fell to the canvas floor.

   
   

5. While on the floor, Gilbert did not exhibit any signs of physical injury or pain. Immediately upon completion of the count Gilbert, smirking, arose and without any difficulty retired to his corner.

   
   

6. No low or illegal blow was delivered to Gilbert by Whetstone in the course of the match. No injury was sustained by Gilbert and the blow delivered just prior to Gilbert's fall to the canvas was insufficient to cause bodily injury.

   
   

7. Following the conclusion of the main event, the Commission, pursuant to Section 548.054, Fla. Stat., withheld the purse from Respondent. Respondent timely requested a Section 120.57, Fla. Stat., hearing.

   
   

8. As a consequence of the failure of Gilbert to compete to the best of his ability, the fight promoter suffered injury to his reputation and business.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 548.054, Fla. Stat., provides:

    
    

    1. A member of the Commission, the deputy in charge, or the referee may order a promoter to withhold any purse or other funds payable to a boxer, or to withhold the share of

       any manager, if it appears that:

       
       

       1. The boxer is not competing honestly, or is intentionally not competing to the best of his ability and skill, in a match represented to be a contest. . . .

11. The evidence establishes that Gilbert intentionally failed to compete to the best of his ability and skill, in a match represented to be a contest. Consequently, pursuant to Section 548.054(1), Fla. Stat., the purse is subject to forfeiture.

    
    

12. Section 548.054(2), Fla. Stat., authorizes the State Athletic Commission to determine the disposition of the withheld purse. The evidence establishes that the promoter's reputation and business were adversely affected because of Gilbert's failure to compete to the best of his ability and skill.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That:

1. The purse withheld from Respondent, George Makres, as manager for Robert Gilbert, be forfeited.

   
   

2. The purse so forfeited be distributed to the fight promoter.

DONE AND ENTERED this day of 8th May, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of May, 1985.

COPIES FURNISHED:

Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

George Makres, As Manager for Robert Gilbert

4210 N.W. 79th Avenue, Apt. 1G Miami, Florida 33166

George W. Porter, Executive Director State Athletic Commission

106 Park Trammell Building 1313 Tampa Street

Tampa, Florida 33602

Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 84-004112

Orders for Case No: 84-004112