STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-5522

)

WILLIAM J. SACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 18, 1997, at Tallahassee, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard L. Windsor, Esquire

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-1020

For Respondent: John Van Lindt, Esquire

9930 Collins Avenue

Bal Harbour, Florida 33154

Robert E. Martini, Esquire 210C Summit Avenue, Suite 900 Montvale, New Jersey 07645

STATEMENT OF THE ISSUES

Whether the Petitioner has jurisdiction over the Respondent and, if so, whether Respondent committed the offenses alleged in

the administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

The administrative complaint filed against Respondent alleged certain facts pertaining to a judgment entered against him in favor of Dr. Douglas Slavin. Respondent timely denied the material allegations of the administrative complaint and asserted certain defenses thereto, including the defense that the Petitioner does not have jurisdiction over the Respondent.

At the formal hearing, Petitioner presented the testimony of Dr. Douglas Slavin and presented three exhibits, which were accepted into evidence. Respondent presented no testimony, but presented eleven exhibits, which were admitted into evidence without objection. Counsel for Respondent did not submit a copy of what was identified as Respondent’s Exhibit 7. Each of Respondent’s exhibits, including Respondent’s Exhibit 7, are letters that constitute hearsay. These letters do not complement or supplement other competent evidence. Consequently, no weight has been given these exhibits, and the failure of Respondent’s counsel to submit a copy of Respondent’s Exhibit 7 is deemed to be harmless error.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The administrative complaint that underpins this proceeding was filed June 20, 1996. At that time, the Respondent was the holder of pari-mutuel wagering occupational license number 0541161-1081 as a trainer. This occupational license was the renewal of a pre-existing license for a period of one year that expired June 30, 1996. There was no evidence that the occupational license that expired June 30, 1996, was renewed by the Respondent.

2. In 1986, 1987, and 1988, Dr. Douglas Slavin was the owner of thoroughbred race horses that raced in Florida. Respondent was, during those years, employed by Dr. Slavin as the trainer for his race horses.

3. In 1988, Respondent purchased from Dr. Slavin a race horse named Political Regent. Respondent had trained Political Regent for racing at pari-mutuel facilities in Florida. This transaction occurred in Florida.

4. In 1988, Respondent and Respondent’s son, Gregory Sacco, took to New Jersey a horse named Political Pocket. This horse was owned by Dr. Slavin and had been trained by Respondent for

   racing at pari-mutuel facilities in Florida. Dr. Slavin had given Respondent and his son permission to take Political Pocket to New Jersey.

5. Without Dr. Slavin’s permission and unknown to him, Respondent and his son sold Political Pocket to a third party in New Jersey.

6. Respondent failed to pay Dr. Slavin for Political Regent or for Political Pocket. After Dr. Slavin discovered that Political Pocket had been sold, he instituted a lawsuit in the Circuit Court in and for Dade County, Florida, against Respondent and his son, Gregory Sacco. The Case Number for this suit was

   89-14563 CA 08.

   
   

7. On June 24, 1992, a final judgment was entered against Respondent and his son, Gregory Sacco, based, in part, on the transactions involving Political Pocket and Political Regent. This judgment was entered on a joint and several basis.1

8. As of the time of the formal hearing, the judgment entered in Case No. 89-14563 CA 08 had not been satisfied.2

   CONCLUSIONS OF LAW

   
   

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

10. Section 550.105(6), Florida Statutes, provides, in pertinent part, as follows:

    (6) The division may deny, revoke, or suspend any occupational license if the applicant therefor 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 the state.

11. Respondent argues that the Petitioner lacks jurisdiction over him because there was no evidence that he was licensed when the transactions involving Political Pocket and Political Regent occurred, when the judgment was entered against him, or at the time of the formal hearing. The evidence established that Respondent was working in Florida training Dr. Slavin’s horses to run at pari-mutuel facilities in 1986, 1987, and 1988. The evidence also established that Respondent renewed his occupational license in 1995. Those facts may create an inference that Respondent was licensed by Petitioner during the year 1988, when the underlying transactions occurred, and during the year 1989, when the final judgment was entered. It is Petitioner’s burden to prove its case against Respondent by clear and convincing evidence. The inference created by Petitioner that Respondent was licensed when he was working for Dr. Slavin as a trainer in 1986-88 does not satisfy the clear and convincing standard. Consequently, it is concluded that Petitioner only proved that Respondent was licensed during portions of 1995 and

    1996, including the time that the administrative complaint was filed.

12. Section 550.105(3)(d), Florida Statutes, provides, in pertinent part, as follows:

    (d) . . . The division may bring administrative charges against any person not holding a current license for violations of statutes or rules which occurred while such person held an occupational license, and the division may declare such person ineligible to hold a license for a period of time. The division may impose a civil fine of up to

    $1,000 for each violation of the rules of the division in addition to or in lieu of any other penalty provided for in this section.

    In addition to any other penalty provided by law, the division may exclude from pari- mutuel facilities in this state, for a period not to exceed the period of suspension, revocation, or ineligibility, any person whose occupational license application has been denied by the division, who has been declared ineligible to hold an occupational license, or whose occupational license has been suspended or revoked by the division.

13. The unpaid obligations from Respondent to Dr. Slavin existed at a time the Respondent was licensed by the Petitioner. Assuming there is no change in the statute, there is a continuing violation of Section 550.105(6), Florida Statutes, as long as this debt exists. This continuing violation and Respondent’s licensure were sufficient to subject Respondent to being disciplined by Petitioner when the administrative complaint was filed. Pursuant to Section 550.105(3)(d), Florida Statutes, the fact that Respondent’s license expired after the filing of the

    administrative complaint does not divest Petitioner of its jurisdiction over Respondent.

14. In addition to his argument pertaining to jurisdiction, Respondent argues that the statute requires the accumulation of multiple debts because it refers to "obligations" and "defaults" in the plural. He further argues that he did not incur multiple debts within the meaning of the statute. This argument is premised on the assertion that the debt for Political Pocket and the debt for Political Regent should constitute but one debt.

    The underlying assertion is without merit as is the argument that is based on the assertion. Section 1.01(1), Florida Statutes, provides as follows:

    In construing these statutes and each and every word, phrase, or part hereof, where the context will permit:

    1. The singular includes the plural and vice versa.

       
       

15. Petitioner proved by clear and convincing evidence that Respondent violated the provisions of Section 550.105(6), Florida Statutes, as alleged in the administrative complaint. Neither party has cited disciplinary guidelines pertinent to this proceeding. The recommendation that follows is based on the continuing nature of this violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law contained

herein. It is further recommended that the final order declare Respondent to be ineligible for licensure in the State of Florida so long as his debt to Dr. Slavin remains unpaid.

DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 11th day of June, 1997

ENDNOTES

1/ The lawsuit brought by Dr. Slavin had two counts that are not relevant to this proceeding. Those counts do not relate to pari- mutuel racing. Reference to the debt owed by Respondent to Dr.

Slavin is only to the portion of the debt based on the transactions involving Political Pocket and Political Regent.

2/ There was evidence that Gregory Sacco had tendered to Dr. Slavin part of the funds necessary to satisfy the judgment.

Thereafter, Gregory Sacco declared bankruptcy, and the trustee in bankruptcy required Dr. Slavin to return the money Gregory Sacco had paid to him. Gregory Sacco's bankruptcy is not relevant to the case against Respondent because the judgment was entered on a joint and several basis. Consequently, Respondent remains liable for this judgment, even if Gregory Sacco's liability has been discharged by the bankruptcy.

COPIES FURNISHED:

Richard L. Windsor, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1020

John Van Lindt, Esquire 9930 Collins Avenue

Bal Harbour, Florida 33154

Robert E. Martini, Esquire 210C Summit Avenue, Suite 900 Montvale, New Jersey 07645

Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel 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 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: 96-005522

Orders for Case No: 96-005522