vs. ) CASE NO. 82-1545
Respondent. )
Pursuant to notice, a formal administrative bearing was conducted in this matter on July 30, 1982, in Miami, Florida, and on August 4, 1982, in Orlando, Florida. The following appearances were entered:
For Petitioner: Elizabeth J. du Fresne, Esquire
du Fresne & du Fresne, P.A. 1782 One Biscayne Tower Miami, Florida 33131
For Respondent: Harold F. X. Purnell, Esquire
John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Petitioner filed an application for licensure with the Respondent, Division of Pari-Mutuel Wagering, Department of Business Regulation. Petitioner was seeking licensure so that he could serve as assistant general manager at Seminole Greyhound Park in Casselberry, Florida. By letter dated May 10, 1982, the Respondent notified Petitioner that the application had been denied.
Petitioner requested a formal administrative hearing, and the matter was forwarded to the office of the Division of Administrative Bearings for the assigning of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled to be conducted on June 26, 1982, in Orlando, Florida, by notice dated June 15. The Respondent requested that the location of the hearing be moved to Miami, Florida. Petitioner concurred in the request and, in order to accommodate it, agreed to a continuance of the hearing until July 30, 1982.
On July 26, the Respondent filed a Motion for Continuance of the hearing. The motion was denied by Order entered July 29, 1982. The hearing was not concluded on July 30. The hearing was continued until August 4, 1982, in Orlando, Florida, and was concluded on that date.
Petitioner testified as a witness on his own behalf at the final hearing and called the following additional witnesses: Jack D. Demetree, a part owner
of Seminole Greyhound Park; William C. Demetree, a part owner of Seminole Greyhound Park; Gary Rutledge, the Secretary of the Department of Business Regulation, and formerly the Director of the Department's Division of Pari- Mutuel Wagering; Robert M. Smith, Jr., the present Director of the Division of Pari-Mutuel Wagering and Leonard V. Wood, an attorney who resides in Casselberry, Florida. The Respondent offered testimony through witnesses called by Petitioner, called the Petitioner himself as a witness, and offered the testimony of the following additional witnesses: A. Randall Tiggett, the Chief of the Division of Pari-Mutuel Wagering's Bureau of Greyhound Racing Activities; Paul Dervaes, a part owner and former President of Seminole Greyhound Park; Roberta Stockham, the office manager and bookkeeper at Seminole Greyhound Park during the 1981 season; and Daniel L. Harden, an investigator employed by the Respondent.
Petitioner's Exhibits 1 through 9 were offered into evidence and received.
Respondent's Exhibits 1, 2, 3, 5, 8 through 19, 22, and 24 were offered into evidence and received. Respondent's Exhibits 6, 7,and 23 were offered into evidence and rejected. Respondent's Exhibits 4, 20 and 21 were marked for identification, but were not offered into evidence and did not become a part of the record.
The parties have submitted post-hearing memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.
The issue in this proceeding is whether the Petitioner meets the qualifications for licensure as assistant general manager at Seminole Greyhound Park. The Respondent contends that Petitioner does not meet these qualifications because while serving in the past as general manager at Seminole Greyhound Park, Petitioner violated the Respondent's rules by consorting with a convicted bookmaker, by allowing an unapproved veterinarian to serve as the approved track veterinarian, by conducting an excessive number of "T" races, by failing to comply with requirements for disbursement of funds to the Board of Regents, and by placing illegal wagers on National Football League games.
Petitioner denies these allegations.
The Division of Pari-Mutuel Wagering is responsible for administering provisions of Florida Statutes relating to operation of dog racing establishments. Chapter 550, Florida Statutes. Respondent is specifically charged with responsibility for issuing or denying licenses to all persons connected with dog racing establishments for each specified job. Section 550.10, Florida Statutes.
The Petitioner has been licensed in various capacities in the pari- mutuel industry in Florida since approximately 1956. He has served at greyhound racing facilities as a mutuel clerk, in the "money room," as racing secretary, racing judge, and most recently, as a track manager. In October, 1980, Petitioner entered into a five-year employment contract with Seminole Greyhound Park, Inc., to serve as its general manager. Petitioner served in that capacity during the time that the track was physically converted from a harness racing
track to a dog racing track. He also served in that capacity during the first greyhound racing season at Seminole Greyhound Park, which began on May 4, 1981, and continued until August 30, 1981. Petitioner was issued a three-year license by the Respondent to serve as general manager commencing in 1981. He nonetheless would need to be certified by Respondent to serve for the 1982 racing season. The owners of Seminole Park desire to continue to employ the Petitioner as general manager. The owners were advised by the Respondent's personnel, however, that Petitioner would not be approved for licensure as general manager at the park for the 1982 season. No formal application to employ Petitioner in that capacity was submitted to the Respondent. Instead, in an effort to accommodate the Petitioner's employment contract, and the desires of the Respondent's personnel, the Seminole Greyhound Park owners sought to employ the Petitioner as assistant manager for the 1982 season, at the same salary and with the same benefits as had been specified in Petitioner's employment contract. Accordingly, Petitioner submitted an application to the Respondent for licensure as assistant manager at Seminole Greyhound Park. The Respondent denied the application by letter dated May 10, 1982. This proceeding ensued.
As general manager at Seminole Greyhound Park, Petitioner was basically responsible for the day-to-day operation of the park. Prior to 1981, the park had been operated as a harness racing facility. The park was being converted into a greyhound racing establishment. Petitioner played a significant role in the conversion. He shared managerial responsibilities with John Fountain, an individual who was employed by the owners of Seminole Greyhound Park as special projects manager. Petitioner also shared responsibilities with Paul Dervaes, the President of Seminole Greyhound Park, who also owned an interest in the park; and with Bill Demetree, one of the primary owners of the park. During the conversion period, Petitioner was basically responsible for organizing the track, setting up concessions, booking kennels and the like. When the track opened in early May, 1981, Petitioner continued to share managerial responsibilities with Bill Demetree and Paul Dervaes. Dervaes resigned as president of Seminole Greyhound Park in late May, and through the remainder of the racing season, Petitioner shared managerial responsibilities primarily with Bill Demetree. Operational employees at Seminole Greyhound Park, including the racing secretary, and persons in charge of security, concessions, and publicity answered directly to the Petitioner.
John Fountain is an individual who was convicted of a violation of federal bookmaking laws. Fountain's civil rights were restored to him in Florida through a "Certificate of Restoration of Civil Rights" issued by the State Office of Executive Clemency on May 14, 1980. Fountain was primarily responsible for interesting Bill and Jack Demetree, two brothers who are involved in various business enterprises, in purchasing the facilities at Seminole Park and transforming it from a harness racing to a dog racing facility. The Demetrees had known Fountain for many years in both personal and business capacities. Fountain had an interest in ultimately participating in the operation of the track. Under statutes then in effect, persons who had been convicted of bookmaking crimes were forever barred from participating in the management of pari-mutuel facilities. The Demetrees participated in lobbying a bill through the Legislature which would allow for approval by the Respondent of persons who had in the past been convicted of bookmaking crimes to be licensed in the pari-mutuel industry. The lobbying effort was successful. Fountain did apply for licensure to participate in the management of Seminole Greyhound Park, but he withdrew his application before it was acted upon by the Respondent.
Fountain had known the Petitioner for many years. Fountain recommended to the Demetrees that they consider Petitioner for the job of general manager at Seminole Greyhound Park. The Petitioner was working as racing secretary at a dog racing track in Miami. He traveled to Orlando to be interviewed by the Demetrees. Fountain participated in at least one of those interviews. Petitioner was hired as general manager in October, 1981.
Fountain was very active in the effort to convert Seminole Park into a greyhound racing facility. Fountain was basically in charge of the renovation project. Petitioner worked closely with Fountain. When Petitioner first moved to Orlando, he shared a motel suite with Fountain. The two were close friends, and they met socially as well as working together in the business enterprise. One of the Demetrees had inquired of the Secretary of the Department of Business Regulation as to the propriety of Fountain working in the renovation project. The Secretary expressed no opposition to Fountain working in that capacity, but advised that it would not be permissible for Fountain to be present at the track during the racing season or to participate in any capacity in the operation of the track. Paul Dervaes, the President of Seminole Greyhound Park, Inc., made a similar inquiry. By letter dated May 5, 1981, the Department of Business Regulation specifically advised Dervaes that it would be improper for Fountain to be in attendance at the track during the racing season or to participate in the management or operation of the track. Dervaes showed this letter to the Petitioner.
On the first day of the racing season, Fountain was present at Seminole Greyhound Park solely to pick up some materials that he had left there. This visit to the park was expressly approved by Gary Rutledge, who was then the Director of the Division of Pari-Mutuel Wagering. It does not appear that Fountain was otherwise present at the track on that date or at any other time during the 1981 racing season.
Despite the Respondent's admonishment that Fountain should not participate in management or operation of Seminole Greyhound Park, Petitioner continued to consult with Fountain on a frequent basis during the 1981 racing season. Fountain frequently contacted the Petitioner with regard to how well the track was performing. Petitioner specifically consulted with Fountain regarding publicity and promotional activities. Fountain had been instrumental in encouraging the use of a "Super 8" promotion whereby customers at the track would attempt to successfully place the order of finish of all eight dogs in a given race. When the promotion was less successful than had been anticipated, Petitioner consulted directly with Fountain about it. Fountain made various recommendations, some of which were followed and some which were not. During the course of the racing season, Fountain communicated with Petitioner with respect to certain persons who Fountain suggested be given special benefits, such as free meals, at the track. These were persons who were "good betters," i.e., persons who placed large bets. These recommendations were followed by Petitioner. On one occasion, Fountain was responsible for authorizing a "petty cash" expenditure for a wedding present for a member of the press. Petitioner approved the expenditure that had been authorized by Fountain.
In addition to participating in operation of Seminole Greyhound Park in these specific instances, Fountain was in constant telephone communication with Petitioner and other persons at the park. In addition to communicating with Fountain about various facets of the business operation, Petitioner was in frequent contact with him on a personal basis.
It appears that Fountain had more than a casual interest in the success of Seminole Greyhound Park. It appears, for example, that Fountain loaned large amounts of money directly to owners of the park for the express purpose of purchasing and renovating the facility. Although Fountain was employed by the Demetrees to accomplish the renovation of the facility, it appears that he was not compensated for that work. It further appears that no interest was paid to him on the loans that he made to park owners. These activities may reflect adversely upon the ownership of Seminole Greyhound Park. It does not, however, appear that Petitioner was aware of any financial interest that Fountain may have had in Seminole Greyhound Park.
Petitioner was responsible for hiring a veterinarian to serve as the approved track veterinarian, and for seeing that the veterinarian was properly approved by the Respondent. Petitioner hired Dr. Bob Sindler as the track veterinarian, and Sindler was properly approved. Shortly before opening day, Petitioner learned that Sindler would not be able to be present at every racing session, and that he would send an associate, Dr. David Case, to serve as track veterinarian on those dates. Dr. Case actually served as track veterinarian on several occasions before he was properly approved by the Respondent. While Case was ultimately approved, and it does not appear that he performed his responsibilities other than properly, he did serve for at least a brief period as track veterinarian before he had been properly approved.
Under the Respondent's rules, entries for all races must be drawn by lot, with certain exceptions. One of these exceptions is for "T" races. These races are made up by the track's racing secretary and can include dogs that are not in the same grade and more than one dog from the same kennel. The number of such races is limited to no more than three races per week. Considerably more than three "T" races were run at Seminole Greyhound Park during every week of its 1981 season until the Respondent advised the racing secretary of the violations by a memorandum. Personnel at Seminole Greyhound Park had not received any prior authorization from the Respondent to run more "T" races than allowed under the Respondent's rules. Petitioner was not directly responsible for developing racing programs. That task fell to the racing secretary. The racing secretary was, however, supervised by the Petitioner, and Petitioner knew, or should have known, that excessive "T" races were being run.
Greyhound racing facilities are required to devote a portion of receipts to charitable endeavors and to the State Board of Regents. On Petitioner's advice, Bill Demetree prepared a list of institutions to which he wished to devote the funds from the Board of Regents' allotment. He sent checks to each specific institution, rather than a single check to the Board of Regents, which would have then been disbursed to the designated institutions.
It appears that the Petitioner gave Demetree this advice after consulting by telephone with personnel of the Respondent. It appears that he misunderstood information that was conveyed to him.
On or about August 21, 1981, the Respondent engaged in what was described at the bearing, depending upon the disposition of the witness, as a "raid" or an "investigative action." Agents of the Respondent and the Department of Law Enforcement appeared at Seminole Park during a racing session, seized documents, conducted tests on dogs, and interviewed track personnel. Petitioner was detained and questioned at length by Gary Rutledge, then the Director of the Division of Pari-Mutuel Wagering. Rutledge testified that Petitioner admitted during the course of an interrogation that Petitioner had made bets with bookies on football games. There was no recording device in operation during that portion of the interview, and no other person heard the
statement. Rutledge did not testify as to the precise language used by Petitioner in making this asserted admission. The nature of these bets, when they were made and, indeed, whether they were legal or not cannot be gleaned from the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.
Various provisions of statutes relating to operation of dog racing facilities prohibit persons who in the past have been convicted of felonies, particularly crimes relating to illegal gambling activities, from being present at or participating in the operation of the facilities. See, e.g., Sections
550.181 and 550.361, Florida Statutes. The Respondent's Rule 7E-2.05(6), Florida Administrative Code, provides:
No person who shall have been convicted of a felony in the State, or under the laws of any other state, government,
or country, or an offense which would be a felony if committed within this State, in the last ten years, shall be issued an Occupational License by
the Division. Any deviation from this rule shall be approved by the Division. The Division may refuse to issue or renew an occupational license or may suspend or revoke an occupational license issued if it shall find that the applicant, or any person who is
a partner, agent, employee, or
associate of the applicant, had knowingly associated or consorted with any
person or persons who have been convicted of a felony in any jurisdiction or jurisdictions or is knowingly consorting or associating with bookmakers,
touts, or persons of similar pursuits; or has himself engaged in similar pursuits or has been found guilty of any fraud or misrepresentation in connection with racing, breeding, or otherwise,
or has violated any law, rule
or regulation, with respect to racing in this or any other jurisdiction or any rule, regulation, or order of the Division, or has been guilty or engaged in similar related or like practices, provided, however, that the
Division may issue or renew an occupational license or refuse to suspend or revoke
an occupational license issued, where the applicant or licensee has not
engaged in such association or activities for a period of ten
years or for good cause shown. (e.s.)
Petitioner violated the provisions of this rule by consorting with John Fountain. Petitioner knew that Fountain had been convicted of a bookmaking offense and that Fountain was not allowed to participate in the management or operation of Seminole Greyhound Park. Petitioner nonetheless consulted with Fountain about numerous aspects of the track's operation. Petitioner in effect allowed a person who was not permitted to participate in management or operation of the track to be so engaged. It appears from the evidence that to some extent the Petitioner's frequent contact with Fountain resulted from the close relationship that Fountain had with Petitioner's employers. Petitioner was aware, however, that Fountain was not permitted to participate in operation of the track after the racing season commenced, and he nonetheless consulted with Fountain and was aware that others at the track were doing so.
Dog racing facilities are required to advise the Respondent of all officials engaged at the facilities. Rule 7E-2.10, Florida Administrative Code. Petitioner was responsible for advising the Respondent of personnel who would be employed at Seminole Greyhound Park during the 1981 racing season. Petitioner failed to advise Respondent that an associate of the official track veterinarian would be serving as track veterinarian during some of the racing sessions. Because of this failure, a person who had not been properly approved by the Respondent served as track veterinarian for a short period of time.
Dog racing facilities are permitted to schedule no more than three "T" races during any week of the racing session. Rule 7E-2.13(13), Florida Administrative Code. Petitioner knew, or should have known, that Seminole Greyhound Park ran "T" races in excess of the rule during every week of its operation until August, 1981.
Seminole Greyhound Park is required to set aside the profit from one racing day of its meet to be paid into the State Treasury for a scholarship trust fund to be administered by the Board of Regents. Section 550.08(1), Florida Statutes. Seminole Greyhound Park properly set aside a day of its program for this purpose. The provisions of the statute were violated when Bill Demetree made out separate checks to be distributed to various institutions, rather than a single check directed to the Board of Regents for distribution to designated institutions. This violation occurred at the Petitioner's direction. It does not appear that Seminole Greyhound Park sought to avoid, or did avoid, its responsibilities under the statute, but merely that a mistake was made as to the distribution of funds.
The evidence does not establish that Petitioner engaged in any illegal gambling activities in connection with football bets.
The Respondent's violation of Rule 7E-2.05(6), as set out in Paragraph
