STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1403

)

RONALD F. KILBRIDE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on July 21, 1993 in Sarasota, Florida.

APPEARANCES

For Petitioner: Joseph M. Helton, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Ronald F. Kilbride, Pro se

5681 Westwind Lane

Sarasota, Florida 34231 STATEMENT OF THE ISSUE

Whether Respondent, Ronald F. Kilbride, should be excluded from any and all pari-mutuel facilities in the state of Florida based on the allegations contained in the Order of Patron Exclusion and Notice of Right to a Hearing.

PRELIMINARY STATEMENT

By an Order of Patron Exclusion And Notice Of Right To A Hearing dated January 20, 1993, the Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), seeks to exclude the Respondent from attending any and all pari-mutuel facilities in the state of Florida. As grounds therefor, it is alleged that Respondent: (a) mailed an altered Autotote ticket bearing number 42 BOB C22A82A4 to Calder Race Course, Inc. demanding payment; and (b) was ejected from the Sarasota Kennel Club for making a false claim concerning Autotote ticket bearing the number 42 BOB C22A82A4, for threatening bodily harm to employees of Sarasota Kennel Club and for issuing worthless checks. At the beginning of the hearing, the Division advised the Respondent that it would not pursue the issue of issuing worthless checks.

The Respondent disputed the allegations of fact contained in the Order Of Patron Exclusion And Notice Of Right To A Hearing and requested a formal hearing pursuant Section 120.57(1), Florida Statutes. The Division referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a formal hearing. A formal hearing was held on this matter on July 21, 1993 in Sarasota, Florida.

At the hearing, the Division presented the testimony of John F. Foley, Teresa Stubbs, Roy C. Snyder, Thomas A. Hughes, Shirley Griffon, James Ollie, and Dwight Holloman. Division's exhibits 1 through 10 were received as evidence in this case. Respondent testified in his own behalf and presented the testimony of Rollie Masterson. Respondent's exhibits 1 through 5 were received as evidence in this case.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The Division timely filed what was entitled Petitioner's Recommended Final Order which shall be treated as a Proposed Recommended Order. Respondent elected not to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the Division has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner, Division of Pari-Mutuel Wagering is the state agency charged with the administration and enforcement of the pari-mutuel wagering laws of the state of Florida.

   
   

2. Respondent, Ronald F. Kilbride, is an individual who frequents pari- mutuel facilities in the state of Florida for the purpose of wagering.

   
   

3. On September 26, 1992, the Respondent was present at the Sarasota Kennel Club and placed several bets on races to be run at the Calder Race Track. On that same day, Respondent placed several bets on races to be run at the Sarasota Kennel Club.

   
   

4. On September 26, 1992, at approximately 2:45 p.m., a pari-mutuel wagering ticket, number 42 BOB C22A82A4 (the Ticket), was purchased at Sarasota Kennel Club for a wager on a horse race (race number 5) being run at Calder Race Track. The Ticket was a winning ticket for that race.

   
   

5. At approximately 2:55 p.m. on September 26, 1992, Respondent presented what he claimed to be the Ticket, to James Ollie, Mutuel Clerk, Sarasota Kennel Club, at window number 6414 for payment. Ollie accepted the ticket presented by Respondent for payment but did not pay or explain to Respondent why he was not paying for the ticket. After a period of time had elapsed without receiving payment, the Respondent became agitated and asked for, and received, the ticket back from Ollie.

   
   

6. There is no evidence that the ticket handed to Ollie by the Respondent at that time was in two pieces or taped together or altered in any fashion.

7. Subsequent to his attempt to cash what Respondent claimed to be the Ticket, Respondent wrote a letter, dated September 27, 1992, to Patrick Mahony, Vice President Mutuels, for Calder Race Course, Inc., enclosing what Respondent claimed to be the Ticket and explaining the circumstances surrounding the attempt to cash that ticket.

   
   

8. Before enclosing the ticket referred to in Finding of Fact 7 in the letter mailed to Mahony, Respondent made a copy of the letter and imposed a copy of the ticket mailed to Mahony on the bottom left hand corner of the copy of the letter (Respondent's exhibit 1). The copy of Respondent's exhibit 1 was furnished to John Foley, Investigator, Bureau of Investigation, Division of

   Pari-Mutuel Wagering, at the time the original letter was mailed to Mahony.

   
   

9. The copy of the ticket shown on Respondent's exhibit 1 is a copy of the ticket mailed to Mahony by Respondent by letter dated September 27, 1992.

   
   

10. The envelope containing the letter and the two ticket parts indicated that Mahony received the envelope in a damaged condition.

    
    

11. Mahony's letter of October 6, 1992 advised Respondent that the ticket was received in two sections which were taped together by an employee of Calder Race Course, Inc. who handled mailed out tickets.

    
    

12. After taping the two pieces of the ticket together and attempting to process the taped together ticket, it was discovered by an employee of the mutuel department at Calder Race Course, Inc. that the records indicated the ticket had previously been cashed at Sarasota Kennel Club. The taped together ticket was returned to Respondent.

    
    

13. The Respondent made a complaint to the Division concerning his treatment at the Sarasota Kennel Club. As a result of that complaint, the Division commenced an investigation. As a result of that investigation, the ticket that Respondent had received back from Mahony (Petitioner's exhibit 3) was taken as evidence in the investigation. The Florida Department of Law Enforcement (FDLE) was requested by the Division to assist in the investigation by reviewing the ticket to determine if it had been altered, other than it being cut and taped back together.

    
    

14. In comparing Petitioner's exhibit 3 with other Autotote tickets, FDLE found that the horizontal bars on the back side of Petitioner's exhibit 3 that had been cut were shorter than the horizontal bars in the same position on other Autotote tickets that had not been cut. It was the testimony of the FDLE expert that cutting a similar Autotote ticket across the horizontal bars in the same place and taping the two pieces back together would not affect the length of horizontal bars that had been cut.

    
    

15. It is clear from the unrebutted testimony of the FDLE expert that Petitioner's exhibit 3 had been altered by cutting two Autotote tickets in a similar fashion and taping the opposite pieces of the two cut Autotote tickets together.

    
    

16. The copy of the ticket shown on Respondent's exhibit 1 is a copy of a whole Autotote ticket that has not been cut in that there is no line indicating that the ticket has been cut and taped back together before copying or copied as two pieces not taped together.

17. A line indicating where the ticket parts are taped to together is evident on Petitioner's exhibit 3 and the blowup of that same ticket by FDLE (Petitioner's exhibit 8).

    
    

18. There are a series of vertical bars under the words AUTOTOTE at the top of each ticket and at the bottom of each ticket which are printed on the ticket at the time of purchase.

    
    

19. In comparing the copy of the ticket shown in Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3 and the blown up copy of that ticket identified as Petitioner's exhibit 8, the vertical bars at the bottom of each of the above-referenced exhibits appear to be identical. The vertical bars at the top of each of the above-referenced exhibits under the words Autotote appear to be identical starting at the top right hand side and moving left to the vertical bar under the letter "E" in the word Autotote on top left hand side. However, there are two vertical bars on the top left hand side under the letters "O" and "T" in the word AUTOTOTE on the top left hand side of the copy of the ticket shown on Respondent's exhibit 1 that do not appear on either the ticket mailed back to Respondent by Mahony (Petitioner exhibit 3) or the blowup of that ticket (Petitioner's exhibit 8).

    
    

20. Other than the two vertical bars referred to in Finding of Fact 16, the information printed on the ticket shown on Respondent's exhibit 1 is the same as printed on the front side of the ticket returned to Respondent by Mahony and identified as Petitioner's exhibit 3 and the blow up of the front side of Petitioner's exhibit 3 identified as Petitioner's exhibit 8.

    
    

21. Comparing the copy of the ticket shown on Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3, it is clear that if the Respondent had somehow come into possession of the Ticket and cut off the left hand portion of the Ticket as shown in Petitioner's exhibit 3 and replaced it with a similar cut off portion from another ticket that had not been cashed, then the two vertical bars would still appear on the ticket identified as Petitioner's exhibit 3.

    
    

22. A one page computer printout allegedly generated by the Autotote Hub entitled "Content of: Daily Ticket Cashed File" for September 26, 1992 list the Ticket as being sold at Window 6410 by Teller 5774 at a cost of $150.00 with a dividend value of $3425.00. This document does not list the window number at which the Ticket was cashed or the teller cashing the Ticket or the time the Ticket was cashed. There was no witness from Autotote to testify as to the significance of this computer printout. However, Mr. Snyder testified that the Ticket was cashed by James Ollie, Mutuel Clerk, at Window 6414, on September 26, 1992, but there was no evidence as to the time of day the Ticket was cashed.

    
    

23. Mr. Ollie testified that the Ticket was presented to Ollie for cashing by a Mr. Dean who was referred to as "Santa Claus", for the obvious reasons of giving gifts to individuals, including employees of the track.

    
    

24. Mr. Ollie also testified that he misplaced the Ticket after it was cashed and that he was suspended for a period of time by the Sarasota Kennel Club for carelessness.

25. When a winning ticket is cashed by a teller or mutuel clerk the number of the window where the ticket is cashed and the amount won by the ticket holder is stamped on the blank space on the far left hand side of the ticket (the blank area to the left of information printed on the ticket at the time of purchase). This is referred to as a brand which signifies that the ticket has been cashed.

    
    

26. After a ticket is cashed it is required that the track keep the ticket on file for, among other things, accounting purposes to the state of Florida and Internal Revenue Service.

    
    

27. There is competent substantial evidence in the record to establish facts to show that the ticket Respondent received back form Mahony had been altered.

    
    

28. Likewise, there is competent substantial evidence in the record to establish facts to show that the ticket Respondent mailed to Mahony was not altered at the time Respondent mailed the ticket to Mahony.

    
    

29. The Respondent did not communicate with Thomas Hughes on September 27, 1992 by telephone or any other mode of communication at any time relevant to this proceeding for the purpose of discussing how to alter a ticket that had already been cashed and branded so that the ticket could be cashed again and did not verbally, or in any other manner, threaten Hughes with bodily harm for disclosing the alleged conversation, notwithstanding the testimony of Hughes and Shirley Griffon to the contrary. Such testimony lacks credibility.

    
    

30. The Respondent did not verbally, or in any other manner, threaten James Ollie with bodily harm at any time relevant to this proceeding, notwithstanding the testimony of Shirley Griffon, Dwight Holloman and James Ollie and the Report of Private Ejection to the contrary. Such evidence lacks credibility.

    
    

31. The Respondent may have been loud at times and his manner considered offensive by some of the employees at Sarasota Kennel Club. However, the Division has failed to present competent substantial evidence to establish facts to show that Respondent verbally, or in any other manner, threatened any employee of the Sarasota Kennel Club with bodily harm at any time relevant to this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

33. The Division, as the party asserting the affirmative of an issue before an administrative tribunal, has the burden to establish facts upon which its allegation of misconduct are based by a preponderance of the evidence. Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (1 DCA Fla. 1981). The Division has failed to sustain this burden in that the Division has failed to show the Respondent violated Division rule or statute governing pari-mutuel wagering which the Division is charged with administering or enforcing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing or rescinding Petitioner's Order of Patron Exclusion and Notice of Right to Hearing filed against the Respondent.

RECOMMENDED this 15th day of October, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

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 15th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1403

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case.

Petitioner's Proposed Findings of Fact.

1. The following proposed finding of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(4, except date is September 26, 1992 not 1993); 3(22-24); 4(7-9,15); 5-11(10,11,11,11,12,12,and 25, respectively)

2. Proposed finding of fact 12-15 are not supported by competent substantial evidence in the record, but see Findings of Fact 29 - 31.

3. Proposed finding of fact 16 and 17 are more argument than Findings of Fact.

4. Proposed finding of fact 18 - 20 are rules and statutes and are more appropriately placed in the conclusions of law.

Respondent's Proposed Findings of Fact.

Respondent elected not to submit any proposed findings of fact.

COPIES FURNISHED:

Joseph M. Helton, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Ronald F. Kilbride, pro se 5681 Westwind Lane

Sarasota, Florida 34231

Jack McRay, Esquire Acting General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

William E. Tabor, Director Division of Pari-Mutuel Wagering 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 the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their 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: 93-001403

Orders for Case No: 93-001403