STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-6208

)

CLAUDE D. RICHARDS, )

)

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 case on April 29, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas W. Darby, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent, a pari-mutuel wagering occupational licensing holder, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

The Administrative Complaint filed by Petitioner on February 14, 1995, contained certain factual allegations pertaining to supplies and services furnished by Better Hooves, Inc., to Respondent, a pari-mutuel wagering occupational licensing holder. Based on those factual allegations, the Administrative Complaint alleged that Respondent violated the provisions of Section 550.105(6), Florida Statutes, and Rule 61D-1.006(3)(a)2., Florida Administrative Code. Respondent denied certain of the allegations contained in the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Kenneth Manness and Dawn Manness, the owners of Better Hooves, Inc. Petitioner presented four exhibits, each of which was accepted into evidence. Respondent did not appear at the formal hearing.

No transcript of the proceedings has been filed. At the request of the Petitioner, 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 close of the hearing. Rule 60Q-2.031, Florida Administrative Code. The Proposed Recommended Order submitted by Petitioner contains an incorrect number for Respondent's license. The Recommended Order reflects the correct number.

Otherwise, the proposed findings of fact submitted by Petitioner are adopted in material part by this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent held pari-mutuel wagering license number 0680747-1081.

   
   

2. Prior to November 14, 1994, Kenneth Manness, a blacksmith who does business as Better Hooves, Inc., provided services and supplies at the request of Respondent for horses which Respondent kept and raced on the grounds of the Pompano Park Harness Track during the 1994 meet.

   
   

3. Mr. Manness, d/b/a Better Hooves, Inc., made repeated demands for Respondent to pay the bills that had been submitted to him for these services and supplies. Respondent failed to pay this debt. This debt was for services and supplies that directly relate to racing at a pari-mutuel facility within the State of Florida.

   
   

4. Mr. Manness, d/b/a Better Hooves, Inc., filed suit against Respondent based on this indebtedness in the County Court of Broward County, Florida where the proceeding was assigned Case Number CO-NO-94-001685. On November 14, 1994, a default judgment was entered against Respondent in the County Court proceeding. The Court found that Respondent was indebted to Mr. Manness, d/b/a Better Hooves, Inc., in the principal amount of $1,332.30 and ordered Respondent to pay that amount plus costs in the amount of $115.00, for a total of

   $1,437.30. Interest was to accrue at the rate of 12 percent per annum.

   
   

5. As of the date of the formal hearing, Respondent had paid none of this indebtedness.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Petitioner is the agency of the State of Florida responsible for administering Chapter 550, Florida Statutes, the Pari-mutuel Wagering Act.

   
   

8. 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).

   
   

9. Section 550.105(6), Florida Statutes, provides as follows:

   (6) The division may deny, revoke, or suspend any occupational license if the applicant therefor or holder thereof accumu-

   lates unpaid obligations or defaults in oblig- ations, 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 con- ducted at a pari-mutuel facility within

   this state.

   
   

10. Petitioner has enacted Rule 61D-1.006(3)(a)2., Florida Administrative Code, which reiterates the authority granted to Petitioner by Section 550.105(6), Florida Statutes.

    
    

11. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 550.105(6), Florida Statutes, and Rule 61D-1.006(3)(a)2., Florida Administrative Code.

    
    

12. Petitioner has not adopted disciplinary guidelines pertinent to this violation. The recommendation that follows is based on the nature of this debt and the fact that Respondent has failed to respond to this obligation since 1994.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and conclusions of law contained herein. It is further recommended that Respondent's pari-mutuel wagering occupational license be revoked. It is further recommended that Respondent be given leave to apply for licensure after he submits proof that the judgment described in this Recommended Order has been fully satisfied.

DONE AND ENTERED this 30th day of July, 1996, 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 30th day of July, 1996.

COPIES FURNISHED:

Thomas W. Darby, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Mr. Claude D. Richards

10 Parkwood Road Westbury, New York 11590

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 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: 95-006208

Orders for Case No: 95-006208