STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF PARI-MUTUEL WAGERING, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1374

)

EDWARD J. TOMCZAK, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 24, 1995, a formal administrative hearing was held in this case. It was held before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings by televideo. (The hearing officer and some of the participants in the hearing were in a specially-equipped hearing room in Tallahassee; other hearing participants were in a specially-equipped room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: Joseph M. Helton, Jr., Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner should revoke or suspend the Respondent's pari-mutuel occupational license for allegedly gambling out of his teller box in violation of F.A.C. Rules 61D-1.031(6) and 61D-1.002(18).

PRELIMINARY STATEMENT

On or about November 9, 1994, the Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (BPR), filed an Administrative Complaint against the Respondent, Edward J. Tomczak, BPR Case No. 94101038. The Respondent denied the charges and requested formal administrative proceedings. For reasons that are not clear from the record, the matter was not referred to the Division of Administrative Hearings (DOAH) until March 21, 1995.

The case was scheduled for final hearing, by televideo, in accordance with the Response to Initial Order filed by BPR on behalf of the parties.

Neither the Respondent nor anyone else appeared at the final hearing on the Respondent's behalf. It was represented by counsel for BPR that the Respondent had contacted counsel on or about May 8 and 18, 1995, to advise of his desire for a continuance of the hearing first (on the 8th) because his mother was hospitalized in New Jersey as a result of a stroke and then (on the 18th) because she was being released from the hospital and needed his help. Counsel told the Respondent that counsel would not object to a continuance request on those grounds but that the Respondent would have to file a motion for a continuance. But the Respondent did not file a motion for continuance or make any other request for a continuance, either oral or in writing.

At the final hearing, BPR called two witnesses and had Petitioner's Exhibits 1 through 5 admitted in evidence. At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. The proposed findings of fact contained in BPR's proposed recommended order are accepted and incorporated.

After the conclusion of the final hearing, the Respondent filed a letter, without any copy shown to counsel for the BPR, requesting a postponement of the final hearing. Besides discussing terms of settlement that would be acceptable to the Respondent, the letter also makes factual representations and arguments in the Respondent's defense. But the basis for the Respondent's defense (essentially, that the Respondent is being unfairly singled out for punishment since betting on sports, loaning money, cashing checks, and even buying illegal drugs allegedly take place at Tampa Jai Alai) does not have merit as a matter of law and does not seem to be inconsistent with the facts proven at final hearing.

FINDINGS OF FACT

1. On or about July 6, 1994, the Respondent, Edward J. Tomczak, applied for a pari-mutuel occupational license as a teller at Tampa Jai Alai.

   
   

2. According to the evidence, a one-year Unrestricted "M2" General license, number 0208239-1084, was issued to the Respondent, and the license is scheduled to expire on June 30, 1995.

   
   

3. In the course of working as a teller at Tampa Jai Alai on the evening of August 29, 1994, the Respondent issued himself at least $1,427 of tickets for which he made no payment. In effect, he "borrowed" and used the fronton's money, against fronton policy, to gamble on his own account. As a result of his gambling, the Respondent was $1,427 "short" at the end of the evening.

   
   

4. After closing out for the evening, the Respondent reported the $1,427 "short" to his supervisor. The Respondent explained that he was trying to win enough money to pay the claim of a woman whose winning December, 1992, Twin Trifecta ticket was cashed by the Respondent on August 11, 1993, after allegedly being found in the ladies room at Tampa Jai Alai by the Respondent's girlfriend.

   
   

5. Notwithstanding the Respondent's attempt to explain his conduct of the previous evening, it was clearly understood between him and his supervisor that the Respondent's conduct on August 29, 1994, was a firing offense and that the Respondent no longer would be permitted to work as a teller at Tampa Jai Alai. (It was not the first time the Respondent reported a substantial "short" that summer. A previous "short" was in the neighborhood of $600-$700.)

6. The next day, the Respondent cashed out his retirement account, repaid Tampa Jai Alai the $1,427 owed, and left. Whether he quit or was fired is unimportant to the issues in this case.

   
   

7. A small "short" by a teller is not a firing offense at Tampa Jai Alai. There are many ways in which honest errors in the course of an evening can result in minor (less than $100) "shorts." Tampa Jai Alai's policy is that tellers must repay "shorts" and that "shorts" over $100 must be repaid before the teller can work again at the fronton. But "shorts" of the magnitude of

   $600-$700, much less $1,427, are considered highly unusual and are cause for concern that they are not the result of honest mistakes but rather of prohibited gambling "out of the box," as the Respondent was doing.

   
   

   CONCLUSIONS OF LAW

   
   

8. F.A.C. Rule 61D-1.031(6) provides in pertinent part:

   
   

   No pari-mutuel tickets shall be sold except through regular ticket windows designated as such. All ticket sales shall be for cash. (Emphasis added.)

   
   

9. F.A.C. Rule 61D-1.002(18) provides:

   
   

   No person shall conspire with any other person for the commission of, or connive with any person in any corrupt or fraudulent practice in relation to racing or jai alai nor shall he commit such an act on his own account. (Emphasis added.)

10. Section 550.105(4)(b), Fla. Stat. (1993), provides in pertinent part: The [Department of Business and Professional

    Regulation, Division of Pari-Mutuel Wagering

    (the division)] may deny, suspend, revoke, or declare ineligible any occupational licensee if the applicant for or holder thereof has violated . . . the rules of the division governing the conduct of persons connected with racetracks.

    
    

    When read in pari materia with the rest of Chapter 550, it seems clear that "racetracks," as used in Section 550.105(4)(b), includes jai alai frontons.

    
    

11. Section 550.105(4)(d), Fla. Stat. (1993), provides in pertinent part:

    
    

    The division may impose a civil fine of up to $1,000 for each violation of the rules of the division in addition to or in lieu

    of any other penalty provided for in this section.

    
    

    See also Section 550.0251(10), Fla. Stat. (1993).

    
    

12. The evidence in this case is clear that the Respondent, an unrestricted jai alai teller holding an occupational license issued by the Division, violated F.A.C. Rules 61D-1.031(6) and 61D-1.002(18).

13. Section 550.105(4)(d), Fla. Stat. (1993), also provides in pertinent part:

    
    

    If an occupational license will expire by division rule during the period of a suspension the division intends to impose . . ., the license may be revoked and a time period of license ineligibility may be declared.

    
    

    Since the Respondent's license expires on or about June 30, 1995, if his license is suspended, it should be revoked, and consideration should be given to declaring a period of license ineligibility.

    
    

14. In addition to what the pertinent statutes provide, F.A.C. Rule 61D- 1.006(3) allows the Division to place conditions or restrictions on the license of a licensee found guilty of violation the applicable statutes and rules. Under the circumstances of this case, consideration should be given to conditioning reinstatement upon evaluation and, if indicated, treatment for gambling addiction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order: (1) imposing a $500 fine on the Respondent, Edward J. Tomczak; (2) revoking his license; and (3) declaring him ineligible for relicensure for a period of one year, with relicensure conditioned upon certification by a Florida licensed mental health practitioner that he has been evaluated for possible gambling addiction and either has been found not to be addicted or is being treated for such an addiction.

RECOMMENDED this 22nd day of June, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 22nd day of June, 1995.

COPIES FURNISHED:

Joseph M. Helton, Jr. Esquire Department of Business and

Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-1007

Edward J. Tomczak

6401 S. Westshore Blvd., Apt. 716

Tampa, Florida 33616

Royal H. Logan Acting Director

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda Goodgame General Counsel

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-001374

Orders for Case No: 95-001374