STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on February 20, 2008, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. “Chip” Collette

Assistant General Counsel Office of the General Counsel

Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Frank D. Inserra, pro se

2649 Sabal Palm Drive Miramar, Florida 33023

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Frank D. Inserra, violated Section 550.105(7), Florida Statutes (2007), as alleged in Count I of an Amended Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 15, 2007, and, if so, what disciplinary action should be taken against his Florida pari-mutuel wagering occupational license.

PRELIMINARY STATEMENT

On or about September 26, 2007, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering issued a one-count Administrative Complaint, DBPR Case Number 2007051406, against Frank D. Inserra, who holds a Florida pari- mutuel wagering occupational license, in which it alleged that Respondent had committed a violation of Section 550.105(7), Florida Statutes (2007). Respondent executed an Election of Rights form disputing the material facts of the Administrative Complaint and requesting a formal administrative hearing.

On December 14, 2007, Petitioner filed the Administrative Complaint, Respondent’s request for hearing, and a letter requesting that an administrative law judge be assigned to hear the matter. The request for hearing was designated DOAH Case No. 07-5686Pl and was assigned to the undersigned.

On December 24, 2007, Petitioner filed a two-count Amended Administrative Complaint which was issued on October 15, 2007. In the Amended Administrative Complaint Petitioner charged Respondent with two violations of Section 550.105(7), Florida Statutes (2007).

On December 31, 2007, the final hearing of this matter was scheduled for February 20, 2008, by Notice of Hearing by Video Teleconference.

At the final hearing, Petitioner presented the testimony of Steven D. Gonzales, Esquire, and Dennis Badillo. The testimony of Robert Stettler was presented by deposition transcript, which was marked as Petitioner’s Exhibit 6 and admitted. Petitioner also had admitted Petitioner’s Exhibits 3, 4, and 5. Finally, official recognition was taken of Petitioner’s Exhibits 1 and 2; a May 1, 2001, Recommended Order, and a May 30, 2001, Final Order in Department of Business and Professional Regulation, Division of Part-Mutuel Wagering v. Jeffrey C. Johnson, DOAH Case No. 01-0603PL, DBPR Case No. 99030257; and Petitioner’s August 24, 2007, Final Order with attachment in In Re: Appeal of Judges’/Stewards/Ruling: Frank d. Inserra, DBPR Final Order No. BPR-2007-06720.

Respondent testified at the final hearing on his own behalf. Respondent also had admitted Respondent’s Exhibits 1 through 4, which he had filed immediately prior to the

commencement of the final hearing. Several other documents filed by Respondent were not offered at hearing and, based upon review, are not relevant to this matter.

At the close of the final hearing, Petitioner indicated it did not intend to order a transcript or to file a proposed recommended order. Petitioner announced that it was seeking the same discipline recommended by Administrative Law Judge Stuart

1. Lerner in the Recommended Order in DOAH Case No. 01-0603PL. On February 26, 2008, Petitioner filed Agency’s Notice of

   Voluntary Dismissal of Count II of Its Amended Administrative Complaint.

   On March 7, 2008, Respondent filed a letter addressed to the undersigned. While the letter has been considered as Respondent’s post-hearing argument, the documents attached thereto have not. Respondent was informed at the close of the final hearing that the decision in this case would be made based upon the evidence presented during the final hearing and that, once the hearing closed, it would be too late to submit additional information. None of the documents filed by Respondent appear to be documents that Respondent could not have offered during the final hearing.

   All further references to the Florida Statutes in this Recommended Order are to the 2007 edition.

   FINDINGS OF FACT

   
   

   1. Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Chapter 550, Florida Statutes.

   2. Respondent, Frank D. Inserra, is, and was at the times material to this matter, the holder of a pari-mutuel occupational license, number 115731-1021, issued by the Division.

   3. On or about June 14, 2005, a Complaint was filed by Kenneth Posco against Mr. Inserra in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida (hereinafter referred to as the “Posco Complaint”). In relevant part, the Posco Complaint alleged the following:

      1. This is an action for damages in excess of $15,000.00, exclusive of interest and costs.

         
         

      2. At all times material hereto, Posco was and is an individual residing in Fitchburg, Massachusetts.

         
         

      3. At all times material hereto, Inserra was and is an individual residing in Broward County and is otherwise sui juris.

         
         

         . . . .

         
         

         1. On or about November 11, 2004, after a negotiated agreement for the purchase of certain thoroughbred racehorses was not honored by Inserra, Posco and Inserra entered into and [sic] agreement for the repayment of the funds previously forwarded by Posco to Inserra for such purchase (the ”Contract”). . . .

            
            

         2. Pursuant to the Contract, Inserra was to make certain periodic payments, in order to make full payment of the agreed upon sum of $40,186.00.

            
            

         3. Inserra has failed to make any of the periodic or final payments described in the Contract.

         
         

         . . . .

         
         

      4. The Contract referred to in the Posco Complaint is a settlement agreement entered into between Mr. Inserra and

         Mr. Posco to resolve Mr. Inserra’s failure to abide by the terms of an oral contract whereby Mr. Inserra agreed to sell four thoroughbred horses to Mr. Posco which were to be used by

         Mr. Posco in pari-mutuel racing. The Contract was entered into by Mr. Inserra and Mr. Posco on or about November 11, 2004.

      5. Pursuant to the Contract referred to in the Posco Complaint Mr. Inserra acknowledged, in part, the following:

         WHEREAS, Inserra, Seller, and Posco, as Purchaser, entered into an oral agreement for the purchase of certain horses (hereinafter “Agreement”) in which Inserra agreed to furnish four (4) total horses together with all required paperwork, in exchange for $36,750.00, prepaid by Posco; and

         
         

         WHEREAS, a dispute has arisen concerning the performance of Inserra under the Agreement; and

         
         

         WHEREAS, Inserra produced Stormin Hillbilly without the required papers (Jockey Club Registration) to allow Posco to race the horse, as anticipated by the Agreement, thus Posco has paid $3,436.00 for training fees, which he now seeks to be reimbursed as the horse has never been able to race; and

         
         

         WHEREAS, Inserra failed to produce any of the remaining three horses; and

         
         

         WHEREAS, Inserra and Posco are desirous of resolving all disputes and controversies regarding the proposed sale.

         
         

         NOW, THEREFORE inconsideration of the mutual covenants hereinafter set forth and other valuable consideration, the parties hereby agree as follows:

         
         

         1. Inserra shall, within [30] days, pay to Posco $16,000.00.

            
            

         2. Inserra will then, within [90] days pay to Posco $10,250.00.

            
            

         3. Inserra will then, within [120] days pay to Posco $13,936.00.

            
            

            . . . .

            
            

      6. When Mr. Inserra failed to live up to the terms of the settlement agreement, Mr. Posco filed the Posco Complaint.

      7. On or about January 6, 2006, Mr. Posco filed Plaintiff, Keneth [sic] Posco’s Motion for Summary Judgment. On

         February 8, 2006, the Motion was granted and a Judgment was

         entered in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, against Mr. Inserra (hereinafter referred to as the “Judgment”). Mr. Inserra was ordered to pay Kenneth Posco $42,075.78.

      8. The Judgment was issued as a direct consequence of Mr. Inserra’s breach of the contract he entered into with Mr. Posco for the sale and purchase of thoroughbred racehorses in Florida, a contract which related directly to the sport of racing in pari-mutuel facilities in Florida.

      9. On June 18, 2007, the Judges/Stewards at Calder Race Course issued the following written ruling (Calder Order) against Mr. Inserra as a result of the Judgment:

         Judgment issued by the 17th Judicial Circuit Court in and for Broward County, Florida, on February 8th, 2006, orders Frank D. Inserra to Pay [sic] Kenneth Posco $42,075.78 plus attorney fees. This judgment has not been satisfied.

         
         

         Owner Frank D. Inserra, having been afforded a formal hearing before the Board of Stewards at Calder Race Course on Monday, June 18th, 2007, is suspended sixty days or until such time as the judgment is satisfied or vacated by the court. Suspension will commence on Thursday, June 21, and continue through and including Monday, August 20th, 2007. Denied access, use, and privileges of all grounds under the jurisdiction of the Florida Division of Pari-Mutuel Wagering requiring a license for admission during the term of suspension.

      10. The Calder Order was affirmed in a Final Order of the Division entered on or about August 24, 2007.

      11. As of the date of the final hearing of this matter, the obligation imposed on Mr. Inserra by the Judgment, which arose out of a transaction relating directly to the sport of racing being conducted at pari-mutuel facilities within Florida, remained unpaid.

          CONCLUSIONS OF LAW

          
          

          1. Jurisdiction.

             
             

      12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

          1. The Burden and Standard of Proof.

             
             

      13. The Division seeks to impose penalties against

          
          

          Mr. Inserra through the Amended Administrative Complaint that include mandatory and discretionary suspension or revocation of his pari-mutuel occupational license. Therefore, the Division has the burden of proving the specific allegations of fact that support its charges by clear and convincing evidence. See

          Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987);

          and Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

      14. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of

          Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), 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 or 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).

          
          

          See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

          1. The Charges of the Amended Administrative Complaint.

          
          

      15. The Division has charged Mr. Inserra with having violated Section 550.105(7), Florida Statutes, which provides:

          (7) The division may deny, revoke, or suspend any occupational license if the applicant therefore 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 at a pari-mutuel facility within this state.

          
          

      16. The evidence presented by the Division proved clearly and convincingly that Mr. Inserra accumulated an unpaid obligation which directly related to the sport of racing being conducted at a pari-mutuel facility within Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering:

1. Dismissing Count II of the Amended Administrative Complaint;

2. Finding that Respondent is guilty of the violation alleged in Count I of the Amended Administrative Complaint; and

3. Suspending Mr. Inserra’s pari-mutuel wagering occupational license for a period of not less than ten days and continuing until Mr. Inserra provides satisfactory proof that he has satisfied his outstanding financial obligation to Kenneth Posco as ordered in the Judgment.

DONE AND ENTERED this 9th day of April, 2008, in Tallahassee, Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2008.

COPIES FURNISHED:

Charles T. “Chip” Collette Assistant General Counsel Office of the General Counsel

Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Frank D. Inserra

2649 Sable Palm Drive Miramar, Florida 33023

David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, 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 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 these cases.

Docket for Case No: 07-005686PL

Orders for Case No: 07-005686PL