STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-5121

)

DAVID MONACI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Tallahassee, Florida, on April 29, 1996, before Michael M. Parrish, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Darby, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: (No appearance for Respondent) 1/

STATEMENT OF THE ISSUE

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 550.105(6), Florida Statutes and Rule 61D-1.006(3)(a)2, Florida Administrative Code, by having unpaid financial obligations that directly relate to racing being conducted at a pari-mutual facility within this state.

PRELIMINARY STATEMENT

The formal hearing in this case was scheduled to begin at 10:00 a.m. on April 29, 1996. At the appointed time legal counsel for the Petitioner was present, but no one was present on behalf of the Respondent. The Hearing Officer delayed the commencement of the hearing for a few minutes to accommodate the possibility that the Respondent had experienced some delay in traveling to the hearing location.

At approximately 10:15 a.m. on April 29, 1996, the Hearing Officer received a telephone call from the Respondent's legal counsel. Thereupon a telephone conference was conducted during which the Respondent's legal counsel requested a

continuance of the formal hearing in order to have time to search for additional information regarding a corporate entity through which the Respondent had done business. The Petitioner objected to the continuance. The request for continuance was denied. Counsel for the Respondent was advised during the telephone conference that if he discovered any relevant evidence after the hearing, he should file a motion requesting that the record be reopened. 2/

Immediately following the telephone conference, the formal hearing was called to order. The Petitioner presented the testimony of two witnesses and offered eight exhibits, all of which were received. One of the exhibits was a tape recording that included statements made by the Respondent during the course of a prior informal hearing. The recorded statements were played during the course of the hearing.

At the conclusion of the formal hearing the petitioner requested thirty days from the date of the hearing within which to file a proposed recommended order. The Hearing Officer allowed all parties thirty days within which to file proposed recommended orders and by letter dated May 9, 1996, counsel for the Respondent was advised of that deadline.

On May 22, 1996, the Respondent filed a document titled Post-Trial Brief Of Respondent. That document has been treated as the Respondent's proposed recommended order and is specifically addressed in the appendix to this Recommended Order. Attached to the Post-Trial Brief Of Respondent was a copy of a certificate issued by the New Jersey Secretary of State regarding the status of a corporation named "D. Monaci Stable, Inc." As of the date of this Recommended Order, the Respondent has not filed a motion to reopen the record and the certificate from the New Jersey Secretary of State has not been received in evidence.

The Petitioner requested, and was granted, two extensions of time for the filing of its proposed recommended order. On July 17, 1996, the Petitioner filed a proposed recommended order which is specifically addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, David Monaci, an individual, held three pari-mutuel wagering occupational licenses, to-wit: Thoroughbred Trainer, DPMW license number 1079030-3050; Authorized Agent, DPMW license number 1079030- 1047; and an Unrestricted "U1" Professional license, DPMW license number 1079030-1081.

   
   

2. David Monaci has some form of interest in, or relationship with, a corporation that is named either David Monaci Stable Inc., or D. Monaci Stable, Inc. The nature and extent of David Monaci's interest in, or relationship with, that corporation is not revealed by the evidence in this case. 3/

   
   

3. At some time during 1993, David Monaci, acting on behalf of the corporation named David Monaci Stable, Inc., or D. Monaci Stable, Inc., entered into an agreement with the Country Western Store in Davie, Florida, pursuant to which the Country Western Store would supply food and other necessities for the race horses being handled by David Monaci at the Gulfstream Park horse race track. The food and other necessities supplied by the Country Western Store were invoiced to "David Monaci Stable, Inc.", at an address in New Jersey.

   After the invoices went unpaid for a number of months, the Country Western Store quit providing anything for the race horses being handled by David Monaci.

4. Shortly thereafter, the Country Western Store filed a lawsuit in Circuit Court in Broward County, Florida, against David Monaci Stable, Inc., seeking to recover the amount owed for the food and necessities it had furnished for race horses handled by David Monaci. On September 8, 1994, a Final Judgement was entered in favor of the Country Western Store and against David Monaci Stable, Inc. The Final Judgement provides, in pertinent part:

   
   

   2. Plaintiff does have and recover from the Defendant, DAVID MONACI STABLE ,INC., the sum of $20,013.46 for damages, $224.76 for costs, $605.00 for attorneys fees, and

   $915.19 for interest, for all of which let execution issue.

   
   

5. As of the date of the formal hearing in this case, nothing has been paid towards the satisfaction of the Final Judgement described immediately above. The Country Western Store did not sue David Monaci individually. The Country Western Store does not have a Final Judgement against David Monaci individually. The extent, if any, to which David Monaci in his individual capacity may or may not be responsible for the debts of David Monaci Stable, Inc., is not revealed by the evidence in this case.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

   
   

7. In a case of this nature the Petitioner must prove its case by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), and Department of Banking and Finance v. Osborne Stern and Company, 21 Fla.L.Weekly S142 (Fla. March 28, 1996).

   
   

8. Section 550.105(6), Florida Statutes, reads as follows:

   
   

   The division may deny, revoke, or suspend any occupational license if the applicant there- for or holder thereof accumulates unpaid obligations or defaults in obligations, or issues drafts or checks that are dishonored or for which payment is refused without reasonable cause, if such unpaid obligations, defaults, or dishonored or refused drafts or checks directly relate to the sport of jai alai or racing being conducted as a pari- mutuel facility within this state.

   
   

9. Rule 61D-1.006(3)(a)2., Florida Administrative Code, reads as follows, in pertinent part:

   
   

   The division may deny a license to or revoke, suspend or place conditions upon or restrictions on a license of any person, or rule off or declare ineligible any person who: . . . Has unpaid fines or financial obligations; . . .

10. It is clear that a corporation named David Monaci Stable, Inc., or D. Monaci Stable, Inc., has unpaid obligations which directly relate to "racing being conducted at a pari-mutuel facility within this state." However, there is no clear and convincing evidence that David Monaci, the license holder, is personally responsible for any of the debts or obligations of the corporation named David Monaci Stable, Inc., or D. Monaci Stable, Inc. In the absence of proof of such personal responsibility, the evidence is insufficient to prove that the license holder, David Monaci, an individual, has violated Section 550.105(6), Florida Statutes, or Rule 61D-1.006(3)(a)2., Florida Administrative Code.

RECOMMENDATION

On the basis of all of the foregoing, it is Recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint on the grounds that the evidence is insufficient to prove that the license holder, David Monaci, is responsible for any of the debts or obligations.

DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 14th day of August, 1996.

ENDNOTES

1/ Prior to the formal hearing, Paul Swanicke advised the Hearing Officer and the Petitioner that he would be representing the Respondent. Neither Mr.

Swanicke nor the Respondent appeared at the formal hearing. Mr. Swanicke did file some post-hearing documents on behalf of the Respondent.

2/ This advice was repeated to in a letter dated May 9, 1996, from the Hearing Officer to the Respondent's legal counsel. The letter included the following:

If you should wish to file a motion to reopen the record, you should do so as soon as you may have grounds for doing so, but in any event prior to the issuance of my recommended order. Once I issue my recommended order, I will no longer have jurisdiction over the referenced matter and any motions after that point would need to be filed with the Director of Pari-Mutuel Wagering.

3/ David Monaci probably owns the subject corporation, but that is not established by the evidence in this case.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner: Paragraph 1: Accepted

Paragraph 2: First sentence accepted. Second sentence rejected as not supported by clear and convincing evidence. The record in this case shows that the food was received by, and the debt was incurred by, a corporate entity; not by the individual licensee.

Paragraph 3: Accepted in substance.

Paragraph 4: First sentence accepted in substance. Second sentence rejected as misleading because it is taken out of context. Immediately before making the quoted statement the Respondent asserted that he did not have any personal responsibility and that the debt in question was a "corporate debt." Last sentence of this paragraph is rejected as subordinate and unnecessary details, or as irrelevant.

Paragraph 5: First sentence accepted in substance. Second sentence rejected as argument.

Paragraph 6: Rejected as subordinate and unnecessary details, because the corporate name searches conducted by the Petitioner were for a corporate name that appears to be different from the actual corporate name. (See the return address on the envelope that comprises part of Petitioner Exhibit 3)

Proposed findings submitted by Respondent:

As noted in the Preliminary Statement, the document titled Post-Trial Brief Of Respondent has been treated as the Respondent's proposed recommended order.

That document does not contain a separate section in which findings of fact are proposed, but has factual assertions interspersed throughout the document. The paragraph numbers below refer to the ten numbered paragraphs of the Post-Trial Brief of Respondent.

Paragraph 1: The comments in this paragraph comprise procedural details which are addressed in the Statement Of The Issue and in the Preliminary Statement and do not need to be repeated in the Finding of Fact.

Paragraph 2: First sentence is accepted in substance. The second sentence is argument about the Petitioner's position, rather than a proposed finding of fact.

Paragraph 3: Accepted in substance.

Paragraph 4: Like paragraph 1, above, the comments in this paragraph comprise procedural details which are addressed in the Statement of the Issue and in the Preliminary Statement and do not need to be repeated in the Findings of Fact. Further, a number of these details are incorrect.

Paragraph 5: No findings of fact have been based on the information in the certificate from the New Jersey Secretary of State because that document has not been received as an exhibit in this case.

Paragraphs 6 and 7: Rejected as irrelevant or as subordinate and unnecessary details.

Paragraph 8: The first sentence is accepted in substance with some details omitted as not supported by persuasive evidence. The second sentence is comprised of argument, rather than proposed findings of fact.

Paragraph 9: Acceptable in substance.

Paragraph 10: This is a request for relief, rather than a proposed finding of fact.

COPIES FURNISHED:

Thomas W. Darby, Senior Attorney Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Paul Swanicke, Esquire Post Office Box 372

Martinsville, New Jersey 08836

Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 ten 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: 95-005121

Orders for Case No: 95-005121