STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 01-0603PL

)

JEFFREY C. JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on April 17, 2001, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph M. Helton, Jr., Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Jeffrey C. Johnson, pro se

1600 Southwest Third Street, Barn H Pompano Beach, Florida 33069

STATEMENT OF THE ISSUES

Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On June 19, 2000, Petitioner filed an Administrative Complaint against Respondent, the holder of a Florida pari- mutuel wagering occupational license, alleging that Respondent "violated Section 550.105(6), Florida Statutes [now Section 550.105(7), Florida Statutes], by failing to pay for veterinarian services provided to Respondent's racing animal."

Through the submission of a completed Election of Rights form dated December 22, 2000, Respondent "dispute[d] the material facts alleged in the Administrative Complaint" and requested "a hearing involving disputed issues of material fact before an administrative law judge with the Division of Administrative Hearings, pursuant to Section 120.57(1), Florida Statutes." On February 12, 2001, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.

As noted above, the final hearing was held on April 17, 2001. Two witnesses, Dr. Paul Plante and Respondent, testified

at the hearing. In addition to Dr. Plante's and Respondent's testimony, three exhibits, Petitioner's Exhibits 1 through 3, were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the undersigned established a deadline (April 27, 2001) for the filing of proposed recommended orders.

On April 27, 2001, Petitioner filed its Proposed Recommended Order, which has been carefully considered by the undersigned. To date, Respondent has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent has held a pari-mutuel wagering occupational license (license number 0609951-1081) issued by Petitioner.

2. At all times material to the instant case, Respondent and Steven Zenker were part-owners of a race horse (named Sixty- Five Roses) that Respondent and his wife, Deedre Johnson, trained at Pompano Park. Pompano Park is a harness racing facility operated by Pompano Park, Inc., the holder of a pari- mutuel permit authorizing it to conduct harness racing in the State of Florida.

3. In April of 1997, Sixty-Five Roses sustained an injury while racing at Pompano Park.

4. The horse was treated over a three-day period (April 12 through April 14, 1997) by Dr. Jonathon Cohen, a veterinarian employed by Dr. Paul R. Plante and Associates (PRPA).

5. The total charge for the veterinary services rendered by Dr. Cohen was $257.00.

6. On April 25, 1997, PRPA sent Ms. Johnson and Mr. Zenker separate bills, each for $128.50 (one-half the total charge). Ms. Johnson's bill was sent to her and her husband's Vernon, New York address (where they reside from the end of April until November each year).

7. The bills indicated that "[a]ny account with an outstanding balance on the 25th of the month [would] be charged a 1.5% late fee or a minimum $5.00 rebilling charge."

8. On or about May 5, 1997, Mr. Zenker paid PRPA the

   
   

   $128.50 he had been billed.

   
   

9. The $128.50 that PRPA had billed Ms. Johnson, however, was not paid.

10. PRPA sent Ms. Johnson a statement each month requesting payment. 1/

11. In or around November or December of 1999, Dr. Cohen, during an encounter with the Johnsons at Pompano Park, handed

    them a copy of the last monthly statement that had been sent and told them that they needed to make payment.

12. Not having received any payment from the Johnsons, in early 1999, PRPA filed suit against Respondent in Broward County Court Case No. CONO 99-0010 to recover monies owed for the veterinary services provided by Dr. Cohen on April 12 through April 14, 1997, in connection with the treatment Sixty-Five Roses.

13. On March 2, 1999, the following Default Judgment was entered in Broward County Court Case No. CONO 99-0010 against Respondent:

    This action having come on for consideration, and it appearing to the court the above-named Defendant [Respondent] was duly served with statement of claim and it appearing further that the said defendant failed to appear in said action and the court finding that the said Defendant is justly indebted to the Plaintiff in the sum of $244.50.

    
    

    It is therefore considered, ordered and adjudged that the said Plaintiff, Dr. Paul Plante and Associates, do have and recover from said Defendant the sum of $128.50 for damages, besides the sum of $116.00 for costs of this suit, and the sum of $0 for interest, all of which shall bear interest at the rate of 10% for the current year and thereafter at the prevailing rate per year as provided for by Florida Statute, for all of which let execution issue.

14. Respondent has not made any payments to PRPA to satisfy this judgment, nor has he sought to have the judgment set aside.

    CONCLUSIONS OF LAW

    
    

15. Petitioner is statutorily empowered, pursuant to Section 550.105(7), Florida Statutes (formerly Section 550.107(6), Florida Statutes) to suspend or revoke an occupational license it has issued if the holder of the license "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."

16. The failure to pay an obligation in violation of Section 550.105(7), Florida Statutes, is a continuing offense that is not completed until the obligation is paid. See Haupt

    v. State, 499 So. 2d 16, 17 (Fla. 2d DCA 1986).

    
    

17. "No revocation [or] suspension . . . of any [occupational] license is lawful unless, prior to the entry of a final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been

    given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." Section 120.60(5), Florida Statutes.

18. The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes the alleged facts set forth in the administrative complaint. Sections 120.569(1) and 120.57, Florida Statutes.

19. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violation(s), alleged in the administrative complaint.

    Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's guilt is required. See Department of Banking and Finance,

    Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and

    Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

20. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696

    So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . . the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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." In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

21. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegations made in the administrative complaint. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the agency's administrative complaint or other charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health

    Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

22. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

    v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

23. In the Administrative Complaint issued in the instant case, Petitioner alleged that Respondent violated Section 550.105(6), Florida Statutes (which has since been renumbered Section 550.105(7), Florida Statutes), by "fail[ing] to pay for veterinary services provided [by PRPA] to Respondent's racing animal [Sixty-Five Roses]."

24. At the final hearing, Petitioner presented clear and convincing evidence that Respondent committed this violation.

25. Petitioner established that, on March 2, 1999, a default judgment had been entered in Broward County Court Case No. CONO 99-0010 requiring Respondent to pay PRPA for veterinary

    services that PRPA's employee, Dr. Cohen, had rendered to a horse, Sixty-Five Roses, that Respondent co-owned and that he and his wife trained at a harness racing facility operated by the holder of a Florida pari-mutuel permit. The entry of this default judgment created an "obligation," which, if not paid, would bring Respondent, the holder of a pari-mutuel wagering occupational license, in violation of Section 550.105(7), Florida Statutes. See Gilpen v. Bower, 12 So. 2d 884, 885 (Fla. 1943)("[A] debt reduced to a judgment . . . merges into the latter and loses its identity."); Vernon v. Service Trucking, Inc., 565 So. 2d 905 (Fla. 5th DCA 1990)("[A] debt reduced to final judgment merges into the final judgment and loses its prejudgment identity."); Sunshine Utilities Equipment, Inc. v.

    Treasure Coast Utilities, Inc., 421 So. 2d 1096 (Fla. 4th DCA 1982)("[T]he debt or cause of action on which an adjudication is predicated is said to be merged into the final judgment."); and Wilson v. Clark, 414 So. 2d 526 (Fla. 1st DCA 1982)("[A] debt or

    cause of action, upon which an adjudication is predicated, merges into the judgment. . . . Consequently, the debt or cause of action's independent existence perishes upon entry of a judgment.").

26. Petitioner further established that, as of the date of the final hearing, Respondent had not paid this pari-mutuel racing-related "obligation."

27. Respondent, who testified in his own defense at the final hearing, did not dispute that the default judgement described in paragraph 25 had been entered against him, nor did he claim that he had satisfied the judgment. Rather, he testified that he had defaulted because he had been unaware that PRPA had filed suit against him. He further testified that, had he had the opportunity to defend himself in this county court action, he would have shown that he and his wife had made arrangements with Mr. Zenker for Mr. Zenker to pay the total

    amount ($257.00) that PRPA had charged for the veterinary services provided Sixty-Five Roses from April 12 through April 14, 1997. 2/

28. Even if these assertions made by Respondent during his testimony are true, Respondent must still be found guilty of violating Section 550.105(7), Florida Statutes. An occupational license holder may not defend against a charge of failing to satisfy a pari-mutuel racing-related "obligation" arising from an unreversed civil judgment (in violation of Section 550.105(7), Florida Statutes) by challenging the correctness or the validity of the judgment. See The Florida Bar v. Onett, 504 So. 2d 388, 389 (Fla. 1987); The Florida Bar v. Vernell, 374 So.

    2d 473, 475 (Fla. 1979); Department of Health and Rehabilitative Services v. Wood, 600 So. 2d 1298, 1300 (Fla. 5th DCA 1992); and

    McGraw v. Department of State, Division of Licensing, 491 So. 2d

    
    

    1193, 1195 (Fla. 1st DCA 1986).

    
    

29. In its Proposed Recommended Order, Petitioner proposes that, for Respondent's violation of Section 550.105(7), Florida Statutes, his license be suspended "for a period of no less than

10 days and continuing until the Respondent provides proof that he has satisfied his outstanding financial obligation" to PRPA. The undersigned finds this to be an appropriate disciplinary measure and recommends that Respondent be given such a

suspension. 3/

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violation alleged in the Administrative Complaint and suspending his occupational license "for a period of no less than 10 days and continuing until the Respondent provides proof that he has satisfied his outstanding financial obligation" to PRPA.

DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 1st day of May, 2001.

ENDNOTES

1/ These monthly statements were sent to the Johnsons' Vernon, New York address and (starting with the October 1997 monthly statement) to their business address at Pompano Park.

2/ "[P]ayment or satisfaction of an instrument may be made or given by any person, including one who is a stranger to the instrument, with the consent of the holder." Colonial Press of Miami, Inc. v. Sanders, 264 So. 2d 92 (Fla. 3d DCA 1972). In the instant case, however, there is no evidence that PRPA was a party to, or approved, any agreement between the Johnsons and Mr. Zenker that required Mr. Zenker to pay the full amount ($257.00) PRPA charged for the services provided Sixty-Five Roses, nor is there any evidence that PRPA accepted any payment from Mr. Zenker for these services in excess of the amount ($128.50) it had billed Mr. Zenker.

3/ Section 550.105(7), Florida Statutes, imposes no limit on the length of suspensions that may be imposed upon licensees who do not satisfy their pari-mutuel racing-related "obligations." Accordingly, the license of such a licensee may be suspended indefinitely until such time as the licensee's "obligation" is satisfied. Contrast with Haas v. Department of Business and Professional Regulation, 699 So. 2d 863 (Fla. 5th 1997)("Section 475.25(1), Florida Statutes, provides that the [Florida Real Estate] [C]ommission may suspend a license up to a maximum of

ten years. Here, the suspension may last longer than ten years if Haas is unable to pay the fine and costs. The commission went beyond its statutory authority in imposing the indefinite suspension.").

COPIES FURNISHED:

Joseph M. Helton, Jr., Esquire

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jeffrey C. Johnson

1600 Southwest Third Street, Barn H Pompano Beach, Florida 33069

Jeffrey C. Johnson Post Office Box 644

Vernon, New York 13476

Jon Hicks, State Steward Pompano Park, Inc.

1800 Southwest Third Street Pompano Beach, Florida 33069

Dr. Paul F. Kirsch, Director Division of Pari-Mutuel Wagering

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 01-000603PL

Orders for Case No: 01-000603PL