STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-0839

)

ALBERT P. POLITO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal hearing in the above-styled case on August 22, 1996, by telephone conference call.

APPEARANCES

For Petitioner: Thomas W. Darby, Esquire

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Albert Polito (appearing pro se)

5440 Northwest 55th Boulevard Apartment 11-207

Coconut Creek, Florida 33073 STATEMENT OF THE ISSUE

The central issue in this case is whether the Respondent committed the violations alleged in the administrative complaint dated May 1, 1995; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on May 1, 1995, when the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) issued an administrative complaint against the Respondent, Albert P. Polito. The complaint alleged that Respondent, while acting within the scope of his duties as a licensed trainer at Pompano Park, had failed to return a horse to its owner or to account for proceeds from the sale of the horse.

Respondent executed an election of rights which disputed the allegations of fact and requested a formal hearing pursuant to Section 120.57(1), Florida

Statutes. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on February 15, 1996.

At the hearing, which was conducted by telephone conference call, the Department presented testimony from the following witnesses: Arnold Erenstoft, Victor Papeo and Steve Moses. The Department's exhibits numbered 1 and 2 were admitted into evidence.

A transcript of the proceeding has not been filed. Specific rulings on the proposed findings of fact submitted in this case are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of regulating licensees in the pari-mutuel industry.

   
   

2. Respondent, Albert P. Polito, holds a pari-mutuel wagering occupational license, license number 12037440-1081, and at all times material to this case was operating as a trainer at Pompano Park, a pari-mutuel wagering race grounds.

   
   

3. In 1993, Respondent was employed by the Erenstoft family to train and race a standardbred horse named "Handy A."

   
   

4. "Handy A" was purchased by Mrs. Erenstoft in 1992. Mrs. Erenstoft paid

   $4,500 for the horse.

   
   

5. As is customary in the industry, "Handy A" was delivered to Respondent's care and custody. As the trainer Respondent was responsible for the stable fees, food, training, and care of the horse. In return, the owner paid Respondent a monthly trainer's fee.

   
   

6. When "Handy A" sustained an injury in July, 1994, he was unable to continue racing. Respondent wanted to turn the horse out. Turning a horse out allows them recuperative time to determine whether the injury will heal sufficient to allow the horse to return to racing.

   
   

7. In this case, the Erenstofts agreed that Respondent could turn out "Handy A." Respondent advised the Erenstofts that "Handy A" was turned out to a farm somewhere in central Florida.

   
   

8. The Erenstofts paid all monies which were owed to Respondent for the care and training of "Handy A."

   
   

9. The Erenstofts have not sold nor agreed to sell "Handy A."

   
   

10. The Erenstofts have not seen "Handy A" since July, 1994.

    
    

11. When Respondent did not return "Handy A" to Pompano Park after demands for same were made, the Erenstofts began inquiries to attempt to locate the horse.

    
    

12. Since no attempt to register a new owner has occurred it is presumed the new owner does not race "Handy A" within the regulated pari-mutuel industry.

13. One market available for such a horse is with the Amish. Typically buyers representing the Amish visit Pompano Park to acquire standardbred horses trained to pull carts.

    
    

14. In this case, Respondent told Vic Papeo he had "Amished" the subject horse. If, in fact, "Handy A" was sold to the Amish it will be extremely difficult, if not impossible, to recover the horse.

    
    

15. Respondent has not paid the Erenstofts for the sale of "Handy A." CONCLUSIONS OF LAW

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

    
    

17. Section 550.105(6), Florida Statutes, provides, in pertinent part:

    
    

    The division may deny, revoke or suspend any occupational license if the applicant therefor or holder thereof accumulates unpaid obligations or defaults in obligations...

    
    

18. Furthermore, Rule 61D-1.006(3)(a) states:

    
    

    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:

    2. Has unpaid fines or financial obligations;

    
    

19. In this case, there has been clear and convincing evidence presented that Respondent incurred a financial obligation to the Erenstofts and failed to return the horse, "Handy A." It is presumed Respondent disposed of the horse, by sale or otherwise, without the owner's permission.

    
    

20. Respondent has failed to meet financial obligations and is, therefore, ineligible for licensure.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Division of Pari-Mutuel Wagering enter a final order revoking the pari-mutuel wagering occupational license of Respondent.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December 1996.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1996.

APPENDIX

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 14 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent: None submitted.

COPIES FURNISHED:

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Thomas W. Darby, Esquire Department of Business and

Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Albert Polito

5440 Northwest 55th Boulevard Apartment 11-207

Coconut Creek, Florida 33073

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000839

Orders for Case No: 96-000839