STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-4566

)

JACK J. GAREY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on February 2, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Susan C. Felker-Little, Esquire

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: No appearance at hearing.

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 10, 1998, the Department of Business and

Professional Regulation, Division of Pari-Mutuel Wagering (Department) issued an administrative complaint against Respondent, the holder of a pari-mutuel wagering occupational license. Pertinent to this case, the Department alleged, at Count I, that Respondent violated the provision of Section 550.105(6), Florida Statutes.1 Such subsection provides that the Department may:

. . . revoke, or suspend any occupational license if the . . . 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 . . . racing being conducted at a pari-mutuel facility within this state.

Respondent filed an election of rights and a letter response to the Administrative Complaint that requested a formal hearing. In so doing, he admitted to the incidents in question, but averred that he satisfied the obligations on June 5, 1998.

Respondent further averred that his indebtedness related to "some personal problems, that I have since corrected . . . and [that I] continue to try to remain in good standing." Notwithstanding the character of his response, the Department forwarded the matter to the Division of Administrative Hearings on October 13, 1998, for the assignment of an administrative law judge to conduct the formal hearing Respondent had requested.

At hearing, Petitioner called Walter Blum, as a witness, and Petitioner's Exhibits 1-3 were received into evidence.

Additionally, at Petitioner's request, official recognition was taken of Petitioner's First Request for Admissions, which Respondent failed to answer, and they were deemed admitted for purposes of this proceeding. Neither Respondent nor anyone on his behalf appeared at hearing and, consequently, no evidence was offered on his behalf.

The transcript of the hearing was not ordered. Therefore, at the conclusion of the hearing, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) is a state agency charged with the duty and responsibility for regulating the pari-mutuel wagering industry in Florida and those licensed under Chapter 550, Florida Statutes.

2. At all times material hereto, Respondent, Jack J. Garey, held pari-mutuel wagering license number 1470144-1081, was a licensed thoroughbred owner, and was a permitholder authorized to conduct horseracing at permitted facilities in the State of Florida.

3. Calder Race Course (Calder) was, at all times material hereto, a permitholder authorized to conduct horseracing in the State of Florida. Incident to the operation of that business,

   Calder extended check cashing privileges to trainers, owners and other pari-mutuel wagering licensees.

4. On or about November 3, 1997, Respondent endorsed and presented to Calder for payment two checks, each in the amount of

   $500.00, which were payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. Both checks, which Calder paid, were returned unpaid because the account was closed.

5. On or about November 12, 1997, Respondent endorsed and presented to Calder for payment a check in the amount of

   $1,600.00 which as payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The check, which Calder paid, was, as the previous check drawn on such account, returned unpaid because the account was closed.

6. In late November 1997, Michael Abes, the vice president of finance at Calder, spoke with Respondent regarding the returned checks and demanded repayment. In turn, Respondent acknowledged the debt and promised to repay it; however, no payments were forthcoming.

7. On or about December 27, 1997, Respondent endorsed and presented to Calder two more checks for payment. One check was in the amount of $2,000.00 and the other in the amount of

   $500.00, and each was payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The checks, paid by Calder, were, as with the previous checks drawn

   on the same account, returned unpaid because the account was closed. Given the return of the previous checks and his discussion with Mr. Abes, it cannot be subject to serious dispute that Respondent knew when he presented the checks to Calder for payment, that the account on which the checks were drawn had been closed and that they would not be honored by the bank.

8. Despite numerous demands, Respondent did not pay any portion of the outstanding obligation owed Calder until February 1998, when a payment of $300.00 was remitted. Subsequently, on June 5, 1998, the balance of the outstanding obligation due Calder was paid.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

2. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1),(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a 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).

1. Pertinent to this case, Subsection 550.105(6), Florida Statutes, provides:

   The division may deny, revoke, or suspend any occupation 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 this state.

   Also pertinent to this case, Subsection 550.105(4)(d), Florida Statutes, provides:

   In addition to any other penalty provided by law, the division may exclude from all 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.

   Finally, Subsection 550.0251(10), Florida Statues, provides:

   
   

   The division may impose an administrative fine for violation under this chapter of not more than $1,000 for each count or separate offense, except as otherwise provided in this chapter, and may suspend or revoke a permit, a pari-mutuel license, or an occupational license for a violation under this

   chapter. . . .

   
   

2. Given the facts, as found, it cannot be subject to serious debate that Respondent accumulated unpaid obligations or defaults in obligations to Calder that directly related to the sport of racing and, consequently, violated the provisions of Subsection 550.105(6), Florida Statutes, as alleged in Count I of the Administrative Complaint.

3. Having reached the foregoing conclusions, it remains to resolve the appropriate penalty that should be imposed. Here, the Department recommends, as a penalty, that an administrative fine of $300.00 and a 30-day suspension be imposed against Respondent. Such penalty is within the range of permissible penalties and, consequently, is accepted; however, given the

seriousness of Respondent's conduct, by presenting checks for payment he knew would be dishonored, he should also be excluded from all pari-mutuel facilities in this state for the period of suspension.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of Subsection 550.105(6), Florida Statutes, as alleged in Count I of the Administrative Complaint and imposing, as a penalty for such violation, an administrative fine of $300.00, a 30-day suspension, and exclusion from all pari-mutuel facilities in the state for the period of suspension.

DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 March, 1999.

ENDNOTE

1/ The Administrative Complaint also contained a Count II; however, the Department dismissed that Count (paragraphs 13-17 of the Administrative Complaint) by Order of Partial Dismissal, dated January 11, 1999.

COPIES FURNISHED:

Susan C. Felker-Little, Esquire Department of Business and

Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-1007

Jack J. Garey

5491 Northwest Evanston Avenue Port St. Lucie, Florida 34983

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: 98-004566

Orders for Case No: 98-004566