STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) CASE NO. 95-2806

)

WILLIAM NAUM, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 24, 1995, a formal administrative hearing was held in this case, in Fort Lauderdale, Florida, before Errol H. Powell, Hearing Officer, Division of Administrative Hearings.

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 ISSUE

The issue for determination at hearing is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated December 15, 1994, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Petitioner) alleged that William Naum (Respondent) had been ejected by and barred from the Calder Race Course, Inc., a pari-mutuel facility. Petitioner alleged further that Respondent was subject to Subsection 550.0251(6), Florida Statutes, because of the action taken against Respondent by Calder Race Course. Subsection 550.0251(6) authorizes Petitioner to exclude from any pari-mutuel facility any person who has been ejected from a pari-mutuel facility. By an Election of Rights form, Respondent disputed the allegations of fact and requested a formal hearing. On June 1, 1995, this matter was referred to the Division of Administrative Hearings.

At hearing Petitioner presented the testimony of one witness and entered two exhibits into evidence.1 Respondent did not appear and no evidence was presented on his behalf.

A transcript of the hearing was ordered. Petitioner submitted proposed findings of fact which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Calder Race Course, Inc. (Calder) is a pari-mutuel facility, located in Dade County, Florida. Calder is authorized to conduct thoroughbred racing in the State of Florida.

   
   

2. On or about August 15, 1994, the Director of Security (Director) at Calder commenced an investigation into the selling and buying of illegal drugs at Calder. The Director had received information of the alleged illegal activity from reliable, confidential informants who included Calder employees. The alleged drug dealing was occurring at a part of Calder described as the second floor alcove, directly outside the grandstand.

   
   

3. The alleged illegal activity involved Calder employees, as well as patrons. As a result, hidden video cameras were installed to provide surveillance of the area where the alleged illegal activity was occurring. Using the video surveillance equipment, the area was monitored by Calder security continuously each day during racing hours - - commencing at the start of each racing day, approximately 12:30 p.m., and ending at the finish of the last race, approximately 5:30 p.m. on weekdays and 6:00 p.m. on weekends. The video surveillance spanned almost 30 days.

   
   

4. The video surveillance revealed a behavioral pattern by the alleged drug dealers and buyers. The individuals involved in the alleged illegal activity would walk in the hidden camera view area and either (a) go behind the wall where they allegedly would make deals for the drugs and return in camera view with the alleged drug dealer putting money in his pocket, or (b) the individuals would make an exchange in camera view with the alleged drug dealer putting money into his pocket.

   
   

5. William Naum (Respondent) was observed by video surveillance on two occasions. These observations occurred almost at the end of the surveillance period.

   
   

6. Respondent is well known by the Director. Respondent is a regular and frequent patron of Calder. Also, during the investigation of the alleged drug activity, Respondent was under investigation by the Director for another alleged illegal act.

   
   

7. On August 28, 1994, Respondent was observed by video surveillance with the alleged drug dealer. They went behind the wall and shortly thereafter, the alleged drug dealer returned alone and left the surveillance area.

   
   

8. On or about September 9, 1994, Respondent was observed by video surveillance meeting with the alleged drug dealer and making an exchange of money for something that could not be seen.

   
   

9. The Director has more than 30 years in law enforcement in which he spent many of those years engaging in surveillance in drug investigations, as well as making undercover drug purchases as an investigator for the Thoroughbred

   Racing Protective Bureau at race courses. Based upon his experience and the behavioral pattern exhibited on the surveillance cameras, the Director determined that Respondent had purchased drugs from the alleged drug dealer.

   
   

10. Besides patrons, Calder employees and licensees were observed on the surveillance cameras exhibiting this same behavioral pattern. Because the investigation expanded beyond patrons, the Narcotics Unit of the Metro-Dade Police was requested to assist with the investigation after about two weeks into the surveillance.

    
    

11. The Metro-Dade Narcotics Unit successfully made an undercover purchase of drugs from the alleged drug dealer. On September 10, 1994, the alleged drug dealer was brought into Calder's security office where the Director was present. The alleged drug dealer admitted to selling cocaine at Calder for the last two years.

    
    

12. On September 11, 1994, Respondent was at Calder, as a patron. He was brought into the Calder security office and advised by Calder security that Calder no longer wanted his business, that he was being ejected and barred from Calder and that, if he returned, he would be subject to arrest for criminal trespass. This action by Calder is referred to as a "management exclusion."

    
    

13. Respondent was not informed of the reason for his exclusion. Respondent was one of the first patrons to be brought in and notified of their exclusion and Calder security had more patrons who would be given the same management exclusion. Calder security was concerned that the other patrons, who were subject to the exclusion, would be deterred from coming to Calder if they discovered that Calder was excluding patrons for purchasing illegal drugs.

    
    

14. All patrons who were determined to have purchased illegal drugs were treated the same way as Respondent by Calder and Calder Security.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 550.0251, Florida Statutes, provides in pertinent part:

    
    

    (6) [T]he Division may exclude from any pari-mutuel facility within this state any

    person who has been ejected from a pari-mutuel facility in this state....

    
    

17. Petitioner has demonstrated that Respondent was ejected from Calder Race Course, Inc. (Calder), a pari-mutuel facility in Dade County, Florida, at which he was a patron.

    
    

18. Calder has a common law right to exclude patrons with whom it chooses no longer to do business absent a showing that the exclusion is for constitutionally impermissible reasons. Winfield v. Noe and Calder Race Course, Inc., 426 So.2d 1148 (Fla. 3rd DCA 1983). No showing has been made that Calder's exclusion of Respondent for engaging in what it concluded to be illegal drug related activity is constitutionally impermissible.

19. Petitioner suggests excluding Respondent from all pari-mutuel facilities in Florida until an order to the contrary is issued from the Division of Pari-Mutuel Wagering.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a final order excluding William Naum from all pari-mutuel facilities in Florida under terms and conditions it deems appropriate.

RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida.

ERROL H. POWELL, 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 22nd day of December, 1995.

ENDNOTE

1/ Petitioner's two exhibits entered into evidence at hearing are a small portion of two video tapes containing approximately 30 days of video surveillance which is potential evidence for future criminal charges. To not jeopardize potential future criminal prosecution, Petitioner was permitted to copy only the portions of the surveillance video tapes which are pertinent to this case and file those copied portions as evidence in this proceeding.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2806

Petitioner's proposed findings of fact 1 - 13 have been adopted in substance, although not verbatim, in this recommended order.

COPIES FURNISHED:

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

1940 North Monroe Street Tallahassee, Florida 32399-1007

Lynda L. Goodgame General Counsel Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399

Thomas W. Darby, Esquire Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Mr. William Naum 716 NE 8th Street

Hallandale, Florida 33009

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: 95-002806

Orders for Case No: 95-002806