STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6682

)

ROBERT C. CRAWFORD, )

)

Respondent. )

)

) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. )

) CASE NO. 91-8107

ROBERT E. MAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled consolidated cases on May 7, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

Chief Attorney

Department of Business Regulation Division of Pari-Mutuel Wagering 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: W. Douglas Moody, Jr., Esquire

Taylor, Brion, Buker and Greene

225 South Adams Street Suite 250

Tallahassee, Florida 32302-3189 STATEMENT OF THE ISSUE

Whether the Respondents committed the offenses alleged in the respective administrative complaints and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondents are greyhound judges who are licensed by Petitioner. The respective administrative complaints filed against Respondents pertain to an alleged incident that occurred at Biscayne Kennel Club and the aftermath that followed. The administrative complaints contained certain factual allegations and charged Respondents, based on those factual allegations, with having violated certain rules and statutes regulating pari-mutuel wagering in the State of Florida. Respondents denied the allegations of the administrative complaints, and this proceeding, which was consolidated without objection, followed.

At the formal hearing, Petitioner presented the testimony of seven witnesses and introduced eight exhibits, seven of which were accepted into evidence. Both Respondents testified and they called one additional witness. Respondent offered one documentary exhibit which was accepted into evidence without objection. Official recognition was taken by the undersigned of Sections 120.633, 550.115, 550.2405, and 550.023, Florida Statutes, and of Chapter 7E-2, Florida Administrative Code.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the close of the hearing. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, Respondents held valid Pari-Mutuel Wagering occupational licenses as greyhound judges that had been issued by Petitioner.

   
   

2. Respondent, Robert C. Crawford, holds license number 0131528-6035 and was, at all times pertinent hereto, the Presiding Judge at Biscayne Kennel Club.

   
   

3. Respondent, Robert E. May, holds license number 0131748-6035 and was, at all times pertinent hereto, the Associate Judge at Biscayne Kennel Club.

   
   

4. Biscayne Kennel Club is a pari-mutuel facility located in Dade County, Florida, that is licensed by Petitioner.

   
   

5. Petitioner has duly enacted a rule 1/ which provides that three judges have general supervisory authority and responsibility over all facets directly involved in the running of pari-mutuel races, including other race officials. Two of these judges, the "presiding judge" and the "associate judge" are so designated by the pari-mutuel facility. The third judge, referred to as the "division judge", is designated by the Petitioner.

   
   

6. At all times pertinent to these proceedings, the three judges, acting as a collegial body, had the responsibility and the authority to supervise the Racing Secretary, the Paddock Judge, the Chart Writer, and all other racing officials at Biscayne Kennel Club.

   
   

7. During the evening performance of April 30, 1991, Biscayne Kennel Club conducted 13 separate greyhound races upon which wagering was permitted.

8. For the evening performance of April 30, 1991, Respondent Crawford and Respondent May were serving at Biscayne Kennel Club in their official capacities as Presiding Judge and Associate Judge, respectively. At the times pertinent hereto, including the evening performance of April 30, 1991, Douglas D. Culpepper was the Division Judge at Biscayne Kennel Club.

   
   

9. The 13th race was conducted without apparent incident, the three judges agreed on the order of finish, and the official results were posted as agreed by the three judges. The official results reflected that the greyhound wearing blanket number 8 finished first, the greyhound wearing blanket number 5 finished second, the greyhound wearing blanket number 6 finished third, and the greyhound wearing blanket number 4 finished fourth. The greyhound wearing blanket number

   7 was officially charted as having finished eighth.

   
   

10. The 13th race on April 30, 1991, concluded at approximately 11:12 P.M. and was the last race of the evening. At approximately 11:25 P.M., Norman T. Campbell, the general manager of Biscayne Kennel Club, telephoned Respondent Crawford and asked that Respondent Crawford, Respondent May, and Mr. Culpepper meet him in his office. This request from Mr. Campbell was in response to a report he had received that three greyhounds had been mis-identified when the greyhounds were blanketed under the supervision of the Paddock Judge immediately prior to the running of the 13th race. The three greyhounds that had been reportedly mis-identified were: NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION.

    
    

11. The following trainers attended the meeting in Mr. Campbell's office that followed the 13th race: Maggie Spears, the trainer of STRIDDEN RITE; Joel Fries, the trainer of NY DAMASCUS; and Jeanne Ertl, the trainer of MPS SEBASTION.

    
    

12. These three trainers were in agreement that their three greyhounds had been mis-identified. These three trainers agreed that the following errors occurred: (1) NY DAMASCUS was assigned the fifth post, but was wearing blanket number 7; (2) STRIDDEN RITE was assigned the sixth post, but was wearing blanket number 5; and (3) MPS SEBASTION was assigned the seventh post, but was wearing blanket number 6.

    
    

13. These three trainers agreed that the official results were in error as follows: (1) NY DAMASCUS officially finished second, but he actually finished eighth, twenty lengths off the pace; (2) STRIDDEN RITE officially finished third, but he actually finished second by a nose; and (3) MPS SEBASTION officially finished eighth, but he actually finished third.

    
    

14. The three trainers were in agreement that the prize money going to the trainer/owner of the greyhound should be redistributed to reflect the actual finish of the race. Instead of second place money, the trainer of NY DAMASCUS agreed to take nothing. Instead of third place money, the trainer of STRIDDEN RITE received second place money. Instead of no money, the trainer of MPS SEBASTION received third place money. The decision was made at the meeting of April 30, 1991, to redistribute the prize money awarded to the trainer/owner consistent with the agreement of the trainers.

    
    

15. BISCAYNE KENNEL CLUB was closing and the public had disbursed by the time the alleged mis-blanketing was reported to Mr. Campbell. By the time the racing officials were made aware of the alleged mis-blanketing on the night of April 30, 1991, it was too late to recall the official results or to

    redistribute the payoff that had been made to the public pursuant to the official results that had been posted.

    
    

16. In addition to the three trainers, the other persons in attendance at the meeting in Mr. Campbell's office following the 13th race on April 30, 1991, were: Mr. Campbell, Respondent Crawford, Respondent May, Mr. Culpepper, Kay Spitzer, and Jerry Escriba. Ms. Spitzer was the president of Biscayne Kennel Club. Mr. Escriba was acting in the capacity as the Paddock Judge.

    
    

17. Mr. Escriba was not, as of April 30, 1991, licensed by Petitioner to act in the capacity as Paddock Judge. Mr. Escriba had attempted to become licensed, but had been unable to do so because Petitioner was temporarily out of the forms necessary to process the application. However, the Division Director of the Division of Pari-Mutuel Wagering had given his permission for Mr. Escriba to serve as Paddock Judge for the meet at Biscayne Kennel Club that included the races on April 30, 1991. While Mr. Escriba had not previously served as a Paddock Judge, he was qualified by experience and training to serve in that capacity. Mr. Escriba had participated in pari-mutuel events for approximately

    13 years and had held a variety of positions all related to the management and control of racing greyhounds. Mr. Escriba had observed the Paddock Judge perform his duties on thousands of occasions. Before Mr. Escriba was assigned the position of Paddock Judge, he was subjected to a two week training period under the supervision of Respondent Crawford and a former experienced Paddock Judge named Chris Norman. Respondent Crawford and Respondent May knew Mr. Escriba well and had confidence in his abilities.

    
    

18. The Paddock Judge is a racing official who has the responsibility to ensure that the greyhounds participating in a pari-mutuel event are properly identified and that each greyhound runs its assigned race in its assigned post position. The Paddock Judge, in keeping with his responsibilities, is required to engage in a series of examinations of each greyhound which are designed to ensure proper identification. Each greyhound has what is referred to as a "Bertillon card", which contains measurements, markings, and other identifying information unique to each greyhound. The Paddock Judge also examines the greyhound identification tattoo which is inscribed upon the ear of each greyhound. After the Paddock Judge completes the identifying process, a tag which designates the race and the post position in which the greyhound is to participate is placed upon the greyhound's collar. Just prior to the race, when a greyhound that is about to race is on the viewing stand, the Paddock Judge executes his final check by ensuring that the tag upon the greyhound's collar corresponds to the race and the blanket number that has been assigned to the greyhound.

    
    

19. At the meeting of April 30, 1991, and at the formal hearing, Mr. Escriba adamantly maintained that the alleged mis-blanketing of the greyhounds had not occurred. Mr. Escriba maintained that all identifying procedures had been properly followed and that the trainers were mistaken. Mr. Escriba's only explanation as to how such an alleged mis-identification could have occurred was that he was operating shorthanded, with only twelve leadouts instead of the usual complement of sixteen. Mr. Escriba asserted at the hearing that the twelve leadouts were enough to perform the work. Mr. Culpepper had little doubt after the meeting in Mr. Campbell's office broke up in the early morning hours of May 1 that the mis-identification had occurred and he believed that Mr. Escriba had not followed the rigid identification procedures.

    
    

20. Because it was too late to redistribute the pay out to the public and because there was a conflict between the trainers and the Paddock Judge as to

    what had happened, Respondent Crawford, Respondent May, and Mr. Culpepper decided that the best course of action was to seek guidance from the highest state official available by telephone. The official contacted was Allen P. Roback, the Regional Supervisor of the Bureau of Operations of the Divisions of Pari-Mutuel Wagering. Mr. Roback had general supervisory authority over the operation of Biscayne Kennel Club and direct supervisory authority over the Respondents. Mr. Roback was contacted by telephone shortly after midnight, in the early morning hours of May 1, 1991.

    
    

21. During the telephone call in the early morning hours of May 1, 1991, Mr. Roback talked with Mr. Campbell and Mr. Culpepper. Mr. Roback instructed them that the matter of the 13th race should be handled in the same manner as an incident generally referred to as the "photo finish" incident. The "photo finish" incident occurred at Biscayne Kennel Club in December of 1990 during a race for which Mr. Roback served as the Division Judge, Respondent Crawford served as the presiding Judge, and Respondent May served as the Associate Judge. Following the subject race, the judges declared the official results relating to the first and second place winners. A photo of the finish was provided the judges approximately eight minutes after the race concluded and revealed that the greyhound that had been declared the first place winner had actually been beaten by the greyhound that had been declared the second place finisher. Notwithstanding the undisputed photographic evidence that the official results were wrong, it was decided by the judges that the official results would not be changed. The pari-mutuel pay out to the public was made on the basis of the official results. However, the prize money to the trainers/owners of the greyhounds was distributed based on the actual finish of the first and second greyhounds as revealed by the photograph. Mr. Roback had been clear in his instruction not to change the official results following the "photo finish" incident. The two greyhounds that finished first and second in that race continued to race thereafter with their respective performance lines as indicated by the official and not the actual order of finish.

    
    

22. After Mr. Culpepper had spoken with Mr. Roback, Respondent Crawford and Respondent May were advised that the Division of Pari-Mutuel Wagering would be conducting an official investigation into the events surrounding the conduct of the 13th race at Biscayne Kennel Club on April 30, 1991. Respondent Crawford and Respondent May were not directed to change the official results of the 13th race, nor were they told to withhold the three greyhounds involved in the dispute from further participation in pari-mutuel events pending the investigation. Respondent Crawford and Respondent May reasonably believed that the official results of the 13th race were final until otherwise notified by the Division of Pari-Mutuel Wagering.

    
    

23. On May 1, 1991, during normal business hours, the alleged mis- blanketing incident was assigned to Marilyn (Lyn) Farrell for investigation. Ms. Farrell is an investigator for Petitioner's Bureau of Investigations. One of Ms. Farrell's assignments was to make a determination of the actual order of finish of the 13th race. Ms. Farrell's investigative report was completed on May 9, 1991. In that report, Ms. Farrell correctly concluded that the mis- blanketing of the three greyhounds had occurred, that the official results were wrong, and that the actual order of finish was that agreed to by the three trainers of the greyhounds involved.

    
    

24. Mr. Roback and Ms. Farrell each visited Biscayne Kennel Club during the course of the investigation. Mr. Roback first spoke with Gary Duell, the Racing Secretary, who told him to talk with Respondent Crawford. Respondent Crawford asked Mr. Roback how much trouble he was in and asked him to meet with

    Mr. Campbell. While the investigation was pending, Mr. Escriba told Respondent Crawford that on April 13 there was confusion in the area where the greyhounds who were to run the 13th race were being blanketed. Mr. Escriba said that he panicked and released the greyhounds to the track before checking all of their tags when the bell for the 13th race rang. Respondent Crawford passed this information on to Mr. Roback. There was no discussion between Mr. Roback and the Respondents as to whether the racing lines should differ from the official results of the race.

    
    

25. In the period between April 30, 1991, the date of the incident, and May 9, 1991, the date Ms. Farrell completed her investigation, NY DAMASCUS, MPS SEBASTION, and STRIDDEN RITE continued to participate at pari-mutuel events at Biscayne Kennel Club.

    
    

26. A racing line for each greyhound scheduled to run in a pari-mutuel event is published in the event's program. The program is distributed to the public. Members of the public then use the information contained in the racing line to determine their bets. A racing line gives certain information pertaining to the greyhound, including the greyhound's recent performance history. Because the information is used to formulate wagers, it is important that the information is accurate. The chart writer is the official with direct responsibility for the accuracy of the racing lines. The chart writer at Biscayne Kennel Club at the times pertinent to this proceeding was Mildred A. Ketchum.

    
    

27. At Biscayne Kennel Club on May 3, 1991, MPS SEBASTION participated in the 6th race, STRIDDEN RITE participated in the 10th race, and NY DAMASCUS participated in the 15th race. The racing line for each of these greyhounds contained in the official racing program published by Biscayne Kennel Club for the races held May 3, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race.

    
    

28. At Biscayne Kennel Club on May 7, 1991, MPS SEBASTION participated in the 4th race. The racing line for MPS SEBASTION contained in the official racing program published by Biscayne Kennel Club for the races held May 7, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race.

    
    

29. At Biscayne Kennel Club on May 8, 1991, STRIDDEN RITE participated in the 1st race. The racing line for STRIDDEN RITE contained in the official racing program published by Biscayne Kennel Club for the races held May 8, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race.

    
    

30. On May 9, 1991, John Pozar, Petitioner's Bureau Chief for the Bureau of Investigation, called Respondent Crawford, indicated that the investigation had confirmed that the mis-identification had occurred, and instructed him to scratch NY DAMASCUS from a race that was scheduled for later that day. Mr. Pozar also instructed Respondent Crawford to change the racing lines for the three greyhounds to reflect their correct performances on April 30, 1991. This was the first direction from Petitioner as to the results of the investigation or as to the action that should be taken. Respondents took immediate action to comply with Mr. Pozar's instructions.

    
    

31. The correct performance lines for NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION in the 13th race at Biscayne Kennel Club did not appear in any

    Biscayne Kennel Club Program until May 11, 1991. Respondent Crawford, Respondent May, and Mr. Culpepper, as the three judges, had supervisory responsibility and authority over the chart writer and could have ordered her to change the performance lines for the three greyhounds involved in the incident of April 30, 1991, at any time between April 30 and May 9. The three judges did not act to change the performance lines between April 30 and May 9 in deference to the investigation being conducted by Petitioner's investigators.

    
    

32. In the matinee program for May 11 for the 12th race, the racing line for NY DAMASCUS accurately reflects that it finished eighth in the 13th race on April 30, 20 lengths off the pace. In contrast, the racing lines for NY DAMASCUS contained in the May 3 program erroneously reflected that NY DAMASCUS finished second by a nose.

    
    

33. In the evening program for May 11 for the 13th race, the racing line for STRIDDEN RITE accurately reflects that it finished second by a nose on April

1. In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May

   8 programs erroneously reflected that STRIDDEN RITE finished third.

   
   

   1. In the evening program for May 11 for the 2nd race, the racing line for MPS SEBASTION accurately reflects that it finished third, five lengths off the pace, on April 30. In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 7 programs erroneously reflected that MPS SEBASTION finished eighth, twenty lengths off the pace.

      
      

   2. Petitioner has adopted no rule which establishes the circumstances under which racing lines can vary from official results in a case such as this. The three judges have to use their judgment as to the appropriate course of action to take in resolving a charge of mis-blanketing. Official results of a race are not to be overturned by the judges in the absence of competent, substantial evidence that the official results are wrong. The record of this proceeding did not establish that these Respondents failed to act within the scope of their discretion in deferring to the investigation by Petitioner. Likewise, the record fails to establish that the Respondents failed to exercise their supervisory authority and responsibility by waiting to change the racing lines until after the official investigation was completed.

      
      

      CONCLUSIONS OF LAW

      
      

   3. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

      
      

   4. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

      
      

      That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence 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 the

      firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

      
      

   5. Rule 7E-2.011, Florida Administrative Code, provides, in pertinent part, as follows:

      
      

      1. There shall be three (3) Judges, one of whom shall be designated by the Association as the Presiding Judge, one of whom shall be designated by the Association as the Associate Judge and one of whom shall be designated by the Division [of Pari-Mutuel Wagering] as the Division Judge. The three (3) Judges shall be held responsible for the proper conduct of the race meet, and shall have general supervision

         over all facets directly involved in the running of the races. ...

         * * *

         1. Should any case occur which may not be covered by the rules of Greyhound Racing here outlined, it shall be determined by the Judges in conformity with justice and in the best interest of racing.

         2. The Judges shall have general supervision over owners, trainers, grooms and other persons attendant on greyhounds and also over all the other officials and licensed personnel of the meeting directly involved in the conduct of the racing activities.

         * * *

         (6) All questions pertaining directly to racing arising during the period of the meeting shall be determined by the Judges, but should

         they be unable to reach a decision in twenty-four

         (24) hours the case shall be reported to the Division for such action as it deems proper.

         (7) The Judges shall decide which greyhounds win, and assign the respective places to as many greyhounds as they think proper. ...

         * * *

         (11) Nothing in these rules shall be construed to prevent the placing Judges from correcting an error before the display of the sign

         "official" or from recalling the sign "official" in case it has been displayed through error.

         * * *

         (23) All questions pertaining to which their authority extends shall be determined by a majority of the Judges.

         * * *

         (27) The Judges shall investigate promptly and render a decision on every objection and on every complaint made to them.

   6. Pursuant to Rule 7E-2.011(27), Florida Administrative Code, judges are required to promptly investigate and decide every objection or complaint made to them. In this case, the three judges met with the trainers and with the Paddock Judge immediately after the disputed race in an effort to resolve the complaint about the posted order of finish. The three trainers agreed that night on how their respective shares of the purse should be determined and split. The agreement among the trainers did not resolve the matter as to whether the official results should be changed because the Paddock Judge adamantly maintained that the greyhounds had been properly identified. Petitioner maintains that there was no dispute as to what occurred on the evening of April

      30 and that Respondents and the other officials were engaging in "damage control" and to avoid bad publicity. While the evidence presented to the Respondents strongly suggested that the mis-identification had in fact occurred, it is clear that there existed a genuine factual dispute that was not resolved until after Ms. Farrell concluded her investigation on May 9.

      
      

   7. The three judges had the authority to change the official results of the 13th race on the evening of April 30, 1991, had they been convinced that the trainers were correct in their assertions that the three greyhounds had been

      mis-identified. The decision by the Respondents to defer to the investigation that Mr. Roback had told them would be conducted was within the discretion of the Respondents. First, there was a genuine factual dispute that required investigation and resolution. Second, the ability of the Judges to change the official results (or to permit racing lines that are contrary to the official results) during the pendency of the formal investigation is not clear because Rule 7E-2.011(6), Florida Administrative Code, suggests an intent that an official investigation is to preempt the Judges's authority as to the matter that is being investigated. Third, the instructions from Mr. Roback were reasonably interpreted by Respondents to mean that no changes in the official results should occur until after the official investigation was concluded.

      
      

   8. In addition to the foregoing reasons that support the decision made by Respondents, the Presiding Judge and the Associate Judge do not have the same authority to conduct investigations that is conferred on the Division Judge. While the three judges exercise their authority as a collegial body pursuant to Rule 7E-2.011(23), Florida Administrative Code, only the Division Judge is empowered to conduct investigations by Rule 7E-2.010(2), Florida Administrative Code, which provides as follows:

      
      

      (2) A Division judge for each meeting shall be appointed by and paid by the Division. He shall observe the conduct of the racing

      officials and the acts to which their authority extends. He shall immediately report to the Division any infraction or violation of the rules. He shall have the authority to conduct inquiries and in connection therewith to recommend to the Division the issuance of subpoenas to compel

      the attendance of witnesses, and the production of all relevant and material reports, books, papers, documents, correspondence and other evidence. He shall have the power to administer oaths and examine witnesses and shall submit

      a report of all proceedings thereon.

      
      

   9. It is, therefore, concluded that the action of the three judges in reporting the matter to the Division and deferring action on the matter until

      after the Division completed its investigation constituted a reasonable and appropriate discharge of the responsibilities that are placed upon them. Until they were informed of the results of the Division's investigation on May 9, 1991, the two individual Respondents reasonably determined that they had an insufficient basis upon which to change the racing lines for the three greyhounds involved in the mis-identification or to scratch any of the three greyhounds from a race.

      
      

   10. Petitioner argues that one or both of the Respondents failed to exercise their responsibilities by permitting Mr. Escriba and certain leadouts to work when they had not been licensed by Petitioner. These allegations clearly exceed the allegations framed by the administrative complaints that were filed by Petitioner and are not properly at issue in these consolidated proceedings.

       
       

   11. Petitioner has not established by clear and convincing evidence that Respondents committed the violations alleged in the respective administrative complaints.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the

administrative complaint brought against Respondent, Robert C. Crawford, in Case

No. 91-6682 and which dismisses the administrative complaint brought against Respondent, Robert E. May, in Case No. 91-8107.

DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992.

ENDNOTES

1 Rule 7E-2.011(1), Florida Administrative Code, is set forth in the Conclusions of Law section of this Recommended Order.

APPENDIX TO THE RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 9, 11, 12, 14, 18, 19, 20, 21, 22, 23, and 24 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in the first three sentences of paragraph 5 are adopted in material part by the Recommended Order. The proposed findings of fact in the fourth sentence of paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the fifth sentence of paragraph 5 are rejected as being contrary to the findings made.

3. The proposed findings of fact in paragraph 6 are rejected as being unnecessary to the conclusions reached since the Respondents are not charged with permitting unlicensed personnel to work at Biscayne Kennel Club.

4. The proposed findings of fact in paragraph 7 are adopted in material part by the Recommended Order with the exception of the proposed findings in the last sentence, which are rejected as being contrary to the findings made.

5. The proposed findings of fact in paragraph 8 are adopted in material part by the Recommended Order with the exception of the proposed findings in the last sentence, which are rejected as being contrary to the findings made.

6. The proposed findings of fact in paragraph 10 are adopted in material part by the Recommended Order with the exception of the proposed findings that suggest there was complete agreement that three greyhounds had been mis- blanketed. Only the three trainers were in agreement that the alleged error had, in fact, occurred.

7. The proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached since it has been concluded that Respondents reasonably relied on Mr. Roback's advice.

8. The proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order with the exception of the proposed findings in the last sentence, which are rejected as being unnecessary to the conclusions reached.

9. The proposed findings of fact in the first sentence of paragraph 16 are adopted in material part by the Recommended Order. The remaining proposed findings of fact are rejected as being unnecessary to the conclusions reached.

10. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached because there is no basis upon which to impute the motives of Mr. Campbell to the Respondents.

11. The proposed findings of fact in paragraph 25 are rejected as being unnecessary to the conclusions reached because there is no basis upon which to impose responsibility upon the Respondents for any action or inaction by Mr. Campbell. It is clear that Respondent Crawford had been informed by Mr. Pozar to change the racing lines, and that appropriate steps were immediately taken to comply with that instruction.

12. The proposed findings of fact in paragraphs 26 and 27 are rejected as being subordinate to the findings made that the mis-blanketing occurred. The proposed findings are otherwise irrelevant.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, and 28 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the findings made.

3. The proposed findings of fact in paragraph 7 are adopted in material part by the Recommended Order with the exception of the proposed findings contained in the last two sentences thereof which are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraph 23 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made.

6. The proposed findings of fact in paragraph 29 are rejected as being contrary to the findings made since the conclusions reached by Ms. Farrell became the position of the Petitioner.

7. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since a formal hearing is not necessary before a judge can act.

8. The proposed findings of fact in paragraph 31 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

John B. Fretwell, Chief Attorney Division of Pari-Mutuel Wagering Department of Business

Regulation

725 Bronough Street

Tallahassee, Florida 32399-1007

W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Greene

225 S. Adams Street Suite 250

Tallahassee, Florida 32302-3189

William E. Tabor, Director Pari-Mutuel Wagering

725 South Bronough Street Tallahassee, Florida 32399-1035

Donald D. Conn General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006682

Orders for Case No: 91-006682