DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,
vs.
Respondent.
) Case No. 03-1459
Pursuant to notice, a final hearing was conducted in this case on May 24, 2004, by means of a video teleconference at sites in Miami and Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish.
For Petitioner: Joseph M. Helton, Jr., Esquire
Ralf A. Michels, Esquire Department of Business and
For Respondent: Joseph P. Klock, Jr., Esquire
This is a case in which the Petitioner, for reasons set forth in an Amended Administrative Complaint and Notice of Intent to Deny License, seeks to impose administrative fines against the Respondent, seeks to suspend or revoke the Respondent’s thoroughbred racing permit, and seeks to deny the Respondent’s application for another thoroughbred racing license.
At the final hearing in this case the Petitioner presented the testimony of two witnesses. The Respondent presented the testimony of two witnesses at the hearing and also presented the deposition testimony of two witnesses. Both parties also offered several documentary exhibits during the course of the hearing.1
At the conclusion of the hearing the parties requested, and were allowed, 15 days from the filing of the hearing transcript within which to file their respective proposed recommended orders. Thereafter, the deadline was extended at the request of the Respondent, and on July 9, 2004, both parties served proposed recommended orders containing proposed findings of fact and conclusions of law. The proposals of the parties have been carefully considered during the preparation of this Recommended Order.
The Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), which is created by Section 20.165(2)(f), Florida Statutes.
The Respondent has been the holder of a permit to conduct pari-mutuel wagering upon thoroughbred horse racing in Dade County, Florida, since 1978.
Background facts
The Respondent has between 1250 and 1350 stable stalls.
Gulfstream, a nearby thoroughbred horse racing facility, has about 1450 stable stalls. Calder, another nearby thoroughbred horse racing facility, has about 1750 stable stalls. This larger number of stalls allows Calder to run races when other South Florida thoroughbred tracks are not running.
The racing season of 1989-1990 was the first Florida thoroughbred horse-racing season after the statutory deregulation of racing dates. The 1989-1990 racing season was the first racing season during which the Respondent had other South Florida thoroughbred races competing with it on every date on which it was scheduled to race during that season. During the 1989-1990 racing season, the Respondent ran in direct competition with Tropical Park, which was a separate permit-
holder owned by Calder. The Respondent’s annual license for the 1989-1990 racing season called for it to race on 141 days during that racing season, but it only raced on 28 days.
The Respondent’s decision to cancel the remainder of its racing dates during the 1989-1990 season was due primarily to an insufficient number of available horses to field a full program of horses on a day-to-day basis on all of the days on which the Respondent was supposed to have races. Although the matter is not entirely free from doubt, it was believed by some horsemen at that time that the lack of a sufficient number of horses at Hialeah during the 1989-1990 racing season was due, at least in part, to alleged threats by functionaries of Calder to the effect that horses stabled at Calder that raced at the Respondent's race track that season would be evicted from the Calder stables.2
In 1989, Calder was owned by an individual named Bert Firestone. In 2002, Calder was owned by, and is still owned by, Churchill Downs, a public company. In 1989, Gulfstream was owned by the Donn family. In 2002, Gulfstream was owned by, and is still owned by, Magna Entertainment Corporation.
In 1991, the deregulation legislation that permitted the competitive racing dates that first occurred during the 1989-1990 racing season was modified. The modification imposed tax penalties on race tracks that ran more than one of the three
designated racing periods. The modification was, however, written to sunset in 2001. The effect of this modification was to give the Respondent a ten-year reprieve from head-to-head competition with Gulfstream and Calder.
The Respondent lobbied for the passage of legislation that would, in effect, have forgiven the Respondent for failing to run its licensed race dates in March, April, and May of 2002. The legislation was enacted into law in 2002. Gulfstream filed a lawsuit challenging the constitutionality of that legislation. The legislation that would have forgiven the Respondent’s failure to run its races was eventually found to be unconstitutional.
In 2003, the Respondent proposed additional legislation that would have forgiven the Respondent for not operating in the future. Gulfstream successfully lobbied against the passage of the legislation.
The Respondent has a very large and very high quality turf course. Horsemen prefer the quality of the turf at the Respondent’s track, but they run at Gulfstream because of the better purses. Gulfstream and Calder both enter into revenue sharing contracts (called “50-50 contracts”) with the horsemen. The Respondent has never agreed to revenue sharing and typically paid only the statutory minimums.
The 2001-2002 thoroughbred racing season
On December 12, 2000, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2001-2002 thoroughbred racing season.
On February 13, 2001, the Division issued Respondent License Number 1300, for the 2001-2002 thoroughbred racing season. This license required Respondent to conduct 58 matinee thoroughbred performances from March 17, 2002, through May 22, 2002.
The Respondent did not conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a fire.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a strike.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through Mary 22, 2002, was not the direct result of a war.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through
May 22, 2002, was not the direct result of a disaster beyond the ability of Respondent to control.
Annual licenses to conduct pari-mutuel operations at thoroughbred racing meets during the 2001-2002 thoroughbred racing season were also issued to Gulfstream and to Calder. The racing dates in these two racing licenses did not compete with each other, but they did compete with the racing dates in the annual license issued to the Respondent. The effect of the licenses issued by the Division for the 2001-2002 racing season was that the Respondent faced competing dates from Gulfstream from March 17 through April 24, 2002, and then faced competing dates from Calder from April 25 through May 22, 2002.
The Respondent learned of the competing date applications filed by Gulfstream and Calder for the 2001-2002 racing season shortly after January 4, 2001. Upon discovering that the competing licenses had been requested, representatives of the Respondent attempted to contact representatives of Gulfstream and Calder to negotiate non-competing dates. Representatives of the Respondent also contacted race tracks outside of Florida to attempt to create a circuit comprised of northern horses that did not traditionally race in South Florida.
Representatives of the Respondent did not make a significant effort to contact horsemen to obtain horses for the
Respondent’s 2002 race dates. After learning that Gulfstream and Calder were not willing to change their dates, the Respondent’s Chairman of the Board, John J. Brunetti, asked the Respondent’s racing secretary, Sam Abbey, to inquire as to what horses could reasonably be expected to be shipped down to the Respondent’s stables for the 2001-2002 racing season. Mr. Abbey made only a half-hearted effort at such inquiries because it seemed to be pretty much a foregone conclusion that Hialeah was not going to race on its dates in the 2001-2002 season, and the few horsemen contacted by Mr. Abbey expressed no interest in coming to Hialeah for the 2001-2002 racing season.
At all times material to this case, Kent H. Stirling has been the executive director of the Florida Horsemen's Benevolent and Protective Association. In that position, Mr. Stirling acts as a liaison between the race tracks and the horsemen, representing the interests of the horsemen. Among other things, Mr. Stirling negotiates purse contracts with the race track owners. Neither Mr. Brunetti nor Mr. Abbey contacted Mr. Sirling regarding the negotiation of a purse contract for the 2001-2002 racing season. In the normal course of events, purse contracts are negotiated six or seven months in advance of the race dates.
Mr. Brunetti and the other people involved in the management of Hialeah never made a serious effort to conduct any
races during the 2001-2002 racing season. Shortly after learning that they would have to run their races with direct competition that season, it appeared to be a foregone conclusion that Hialeah would not race that season because it did not want to race with direct competition.3 As early as May 22, 2001,
Mr. Brunetti advised race fans in the program for Hialeah’s last racing day of the 2000-2001 season: “By now you have heard that Hialeah Park will probably end its racing career with our last racing day, May 22. This is sad, but true.” An early decision to not run any races during the 2001-2002 racing season is also evidenced by the fact that Mr. Brunetti never contacted Mr.
Stirling to negotiate a purse contract for the 2001-2002 racing season.
Mr. Brunetti’s decision not to race during the 2001- 2002 racing season appears to have been based largely on the notion that, because the 1989-1990 racing season with direct competition on race dates had been a total disaster, racing in 2001-2002 with direct competition would probably also be a disaster, so it was not worth doing.4
During the 2001-2002 and the 2002-2003 thoroughbred racing seasons, by reducing the number of horses per race to 8 or 9, or by reducing the number of races per day to 8 or 9, and by racing 5 days per week, the Respondent could have accommodated a sufficient number of horses in its own stables to
have run all of its race dates during those two seasons.5 In the past, the Respondent has had racing programs where it ran only 8 races per day. With the exception of the opening and the closing days, the last year the Respondent ran its authorized dates, it ran 8 races each day.
The 2002-2003 thoroughbred racing season
On December 20, 2001, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2002-2003 thoroughbred racing season.
On February 14, 2002, the Division issued the Respondent License Number 1300 for the 2002-2003 thoroughbred racing season. This license required the Respondent to conduct
89 matinee thoroughbred performances from February 1, 2003, through May 14, 2003.
On March 28, 2002, the Respondent filed an application to amend License Number 1300 for the 2002-2003 thoroughbred racing season requesting a change of the number of performances and dates.
On April 12, 2002, the Division issued the Respondent an amended license, Number 1300-Amendment A, to conduct pari- mutuel operations for the 2002-2003 thoroughbred racing season. The amended license required the Respondent to conduct 73
matinee thoroughbred performances from January 3, 2003, through April 13, 2003.
The Respondent did not conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a fire.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a strike.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a war.
The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a disaster beyond the ability of the Respondent to control.
The circumstances during the 2002-2003 were similar to those of the prior racing season. Racing licenses for the 2002- 2003 thorough bred racing season were again also issued to Gulfstream and to Calder. These two licenses did not compete with each other, but one of them did compete with the license issued to the Respondent. The effect of the combined racing
licenses issued by the Division for the 2002-2003 racing season was that the Respondent faced competing dates from Gulfstream from January 3 through April 13, 2003. The Respondent’s racing dates did not compete directly with Calder in 2003.
For essentially the same reasons as the season before, Mr. Brunetti made an early decision not to race during the 2002- 2003 thoroughbred racing season. Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2002-2003 racing season. Mr. Brunetti never made any serious efforts to attempt to attract horses to race at the Respondent's facility during the 2002-2003 season.
The 2003-2004 thoroughbred racing season
On January 2, 2003, the Respondent filed its application for an annual license to conduct pari-mutuel operations at a thoroughbred-racing meet during the 2003-2004 thoroughbred racing season. The Respondent’s application that was filed on January 2, 2003, seeks 81 thoroughbred performances from January 3, 2003, through April 24, 2004.
On February 14, 2003, the Division issued an Administrative Complaint and Notice of Intent to Deny License based upon Respondent’s failure to conduct thoroughbred performances in the 2001-2002 and 2002-2003 thoroughbred racing seasons.
On March 31, 2003, the Respondent filed a request to amend its application for an annual license to conduct pari- mutuel operations at a thoroughbred racing meet during the 2003- 2004 thoroughbred racing season.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The Petitioner is the agency of the State of Florida that is charged with the regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes.
In a case of this nature, the Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the charging instrument. Proof greater than a mere preponderance of the evidence must be presented by the Petitioner to meet its burden of proof. 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, 294 (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. ").
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). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether the Petitioner has met its burden of proof, it is necessary to evaluate the Petitioner's evidentiary presentation in light of the specific factual
allegations made in the charging instrument. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the 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).
Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] 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 [in the charging instrument] to have been violated" was in fact violated, as alleged by the 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).
Section 550.5251(1), Florida Statutes, defines the annual thoroughbred racing season as the period from “June 1 of
any year through May 31 of the following year.”
Section 550.5251(2), Florida Statutes, provides:
(2) Each permitholder referred to in subsection (1) shall annually, during the period commencing December 15 of each year and ending January 4 of the following year, file in writing with the division its application to conduct one or more thoroughbred racing meetings during the thoroughbred racing season commencing on the following June 1. Each application shall specify the number and dates of all performances that the permitholder intends to conduct during that thoroughbred racing season. On or before February 15 of each year, the division shall issue a license authorizing each permitholder to conduct performances on the dates specified in its application. Up to March 31 of each year, each permitholder may request and shall be granted changes in its authorized performances; but thereafter, as a condition precedent to the validity of its license and its right to retain its permit, each permitholder must operate the full number of days authorized on each of the dates set forth in its license. (Emphasis added.)
When a pari-mutuel permitholder fails to run a performance, the Division is required by Section 550.01215(4), Florida Statutes, to conduct a hearing to determine whether or not to discipline the permitholder. Specifically, Section 550.01215(4), Florida Statutes, provides as follows:
(4) In the event that a permitholder fails to operate all performances specified on its license at the date and time specified, the division shall hold a hearing to determine whether to fine or suspend the permitholder's license, unless such failure was the direct result of fire, strike, war,
or other disaster or event beyond the ability of the permitholder to control. Financial hardship to the permitholder shall not, in and of itself, constitute just cause for failure to operate all performances on the dates and at the times specified.
Section 550.0251(10), Florida Statutes, provides:
(10) The division may impose an administrative fine for a 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. All fines imposed and collected under this subsection must be deposited with the Chief Financial Officer to the credit of the General Revenue Fund.
Section 550.054(9)(a), Florida Statutes, provides:
(9)(a) After a permit has been granted by the division and has been ratified and approved by the majority of the electors participating in the election in the county designated in the permit, the division shall grant to the lawful permitholder, subject to the conditions of this chapter, a license to conduct pari-mutuel operations under this chapter, and, except as provided in s.
550.5251, the division shall fix annually the time, place, and number of days during which pari-mutuel operations may be conducted by the permitholder at the location fixed in the permit and ratified in the election. After the first license has been issued to the holder of a ratified permit for racing in any county, all subsequent annual applications for a license by that permitholder must be accompanied by proof, in such form as the division requires, that the ratified permitholder still possesses all the qualifications prescribed by this chapter and
that the permit has not been recalled at a later election held in the county.
There is clear and convincing evidence that the Respondent failed to conduct any of the performances it was authorized to conduct during the 2001-2002 and the 2002-2003 thoroughbred racing seasons. In order to determine whether such failures are exempt from the disciplinary action authorized by Section 550.01215(4), Florida Statutes, it must be determined whether such failures were “the direct result of fire, strike, war, or other disaster or event beyond the ability of the permitholder to control.” There is clear and convincing evidence that the Respondent’s failures to conduct any performances during the 2001-2002 and the 2002-2003 thoroughbred racing seasons were not “. . . the direct result of fire, strike, war, or other disaster. . . .” Thus, the issue of whether such failures are exempt from the disciplinary action authorized by Section 550.012154), Florida Statutes, turns on a determination of whether such failures were the direct result of some other “event beyond the ability of the permitholder to control.”
The parties strongly differ in their views as to what types of events are encompassed by the last-quoted statutory language. The Petitioner argues that the language should be given a narrow interpretation, while the Respondent argues in
favor of a broad interpretation. A determination of the proper scope of the term “event beyond the ability of the permitholder to control” must begin with a consideration of the context in which the quoted term appears. The subject term is a general term that appears at the end of an enumeration of specific things; those specific things being “fire, strike, war or other disaster.” In such circumstances, the principles of statutory construction known as ejusdem generis and noscitur a sociis are applied to determine the meaning of the more general word at the end of a series of more specific words or phrases. In State ex
rel. Wedgworth Farms, Inc. v. Ina S. Thompson, 101 So. 2d 381 (Fla. 1958), the court described the application of ejusdem generis as follows:
Under this doctrine when an enumeration of specific things is followed by some more general word or phrase, then the general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. Hanna v. Sunrise Recreation, Inc., Fla. 1957, 94 So. 2d 597.
The rule is merely an application of a phase of the broader maxim noscitur a sociis which simply means that general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the less general. Townsend v. State, 63 Fla. 46, 57 So. 611.
Similarly, in Cepcot Corporation v. Dept. of Bus. and Prof. Regulation, 658 So. 2d 1092 (Fla. 2d DCA 1995), the court
stated:
Legislative intent is the primary factor in construing a statue, and whenever possible that intent should be derived from the language of the statute. Pfeiffer v.
City of Tampa, 470 So. 2d 10 (Fla. 2d DCA), review denied, 478 So. 2d 53 (Fla. 1985); Vocelle v. Knight Bros. Paper Co., 118 So. 2d 664 (Fla. 1st DCA 1960). A statute should be construed in its entirety and within the context provided by the related statutes within the same act. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation Dist., 274 So. 2d 522 (Fla.
1973). Words within a statute should not be given a ‘literal’ meaning if that meaning conflicts with the plain legislative intent. Holly v. Auld, 450 So. 2d 217 (Fla. 1984).
Under the doctrine of noscitur a sociis one examines the other words used within a string of concepts to derive the legislature’s overall intent. Carraway v. Armour & Co., 156 So. 2d 494 (Fla. 1963); Smith v. State, 606 So. 2d 427 (Fla. 1st DCA 1992), review denied, 618 So. 2d 211 (Fla.
1993).
And in City of West Palm Beach v. Board of Trustees of Internal Improvement Trust Fund, 746 So. 2d 1085 (Fla. 1999), the Florida Supreme Court quoted with approval the following language from the Fourth District Court of Appeal opinion that was under review:
Where a statute first uses ‘terms each evidently confined a limited to a particular class of a known species of things,’ and later uses a broader term, the more general word is construed as applying to the ‘same kind of species with those comprehended by the preceding limited and confined terms.’ Dunham v. State, 140 Fla. 754, 192 So. 324,
326 (1939)(quoting Ex parte Amos, 93 Fla. 5,
112 So. 289, 293 (1927). As the supreme court has explained this principle of statutory construction, general and specific words which are capable of an analogous meaning being associated together take color from each other, so that the general words are restricted to a sense analogous to the less general.
The principles of ejusdem generis and noscitur a sociis are also applicable to the construction and interpretation of criminal statutes. State v. Wilson, 793 So. 2d 1003 (Fla. 2d DCA 2001). Accordingly, they would appear to also be applicable to the interpretation of statutory provisions regarding administrative penalties.
In this case, application of the principles of ejusdem generis and noscitur a sociis leads one to the conclusion that the term “event beyond the ability of the permitholder to control” in Section 550.01215(4), Florida Statutes, must be read as being modified by the terms that precede it in the statutory itemization. Accordingly, the subject term does not encompass every event beyond the control of the permitholder, but only events beyond the control of the permitholder that are similar to a “fire, strike, war, or other disaster. . . .” Events such as floods, hurricanes, and tornados come readily to mind. Also, terrorist or criminal acts that cause death, serious injury, or destruction of property. But the subject term can not be reasonably construed to encompass such events as actions by
competitors to increase competition or otherwise interfere with the Respondent's business activities.
When the subject statutory language is construed in the manner described above, on the facts presented in this case the Petitioner does not have any statutory basis for avoiding the statutory consequences of its decisions not to run any of its authorized races during the 2001-2002 and 2002-2003 thoroughbred racing seasons. Those consequences include revocation of the Respondent’s thoroughbred racing permit and denial of the Respondent’s application for a racing license for the 2003-2004 thoroughbred racing season.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case revoking the Respondent’s thoroughbred racing permit and denying the Respondent’s application for a racing license for the 2003- 2004 thoroughbred racing season.
DONE AND ENTERED this 30th day of September, 2004, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2004.
1/ The description and the fate of each exhibit is memorialized in the transcript of the hearing.
2/ There is very little in the way of persuasive evidence about the reasons for the insufficient number of horses available to the Respondent during the 1998-1990 racing season. Much of the evidence on this issue consisted of uncorroborated hearsay. Much of the non-hearsay evidence on this issue was vague and non- specific.
3/ There is very little in the way of persuasive evidence about why Mr. Brunetti decided not to run any of the Respondent's races during either the 2001-2002 or the 2002-2003 racing seasons. The reasons given in Mr. Brunetti's testimony are, for the most part, either vague and non-specific or inconsistent with more persuasive evidence. The testimony of Mr. Abbey was also largely vague and non-specific, not to mention confusing. It is at times difficult to tell when Mr. Abbey was talking about events during the 1989-1990 racing season and when he was talking about events during the racing seasons of 2001-2002 and 2002-2003.
Mr. Abbey's credibility was also diminished by his exaggerated estimate that it would take 4,500 or 5,000 horses for the Respondent to have conducted its authorized races during the two racing seasons at issue here.
4/ The evidence hints at the possibility that Mr. Brunetti’s decision not to race during the 2001-2002 season might also have been colored by a belief on his part that the people in charge of operations at Gulfstream and Calder were threatening to evict the owners of any horses stabled in Gulfstream or Calder stalls that raced at Hialeah. However, there is no persuasive evidence of any such threats by anyone at either Gulfstream or Calder during the 2001-2002 racing season or during any more recent racing season. Nor is there any persuasive evidence that either Gulfstream or Calder had a business practice or business policy of prohibiting trainers stabled at their facilities from running their horses at the Respondent’s facility during the 2001-2002 racing season or during any more recent racing season.
5/ This finding follows from Mr. Romanik's expert opinions at pages 113-114 of the hearing transcript regarding the number of horses that are necessary to run a racing program. Applying Mr. Romanik's expert assumptions and math, running 10 horses per race, running 9 races per day, and racing 5 days per week would
require a total of 1,350 horses. Applying those same assumptions and math, running 10 horses per race, running 8 races per day, and racing 5 days per week would require a total of 1,200 horses. Similarly, running 9 horses per race, running 9 races per day, and racing 5 days per week would require a total of 1,215 horses. The Respondent had sufficient stalls for those numbers of horses.
Joseph M. Helton, Jr., Esquire Department of Business and
Joseph P. Klock, Jr., Esquire Steel, Hector & Davis, LLP
David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and
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.
