The Issue Whether the FHBPA, FTBOA, and OBS have standing to challenge the Division’s issuance of a new summer jai alai permit to Calder; and, if so, whether FHBPA’s petition and FTBOA’s and OBS’s motions to intervene were timely; and, if so, whether the Division properly granted a new summer jai alai permit to Calder pursuant to section 550.0745(1), Florida Statutes (2019), and Florida Administrative Code Rule 61D-4.002.
Findings Of Fact Parties/Standing The Division is the agency charged with regulating pari-mutuel wagering and issuing pari-mutuel permits under the provisions of chapter 550, including section 550.0745 pertaining to summer jai alai permits, and rule 61D-4.002. Calder is a pari-mutuel permitholder authorized to operate thoroughbred horse racing and conduct pari-mutel pools on exhibition sports in Miami-Dade County pursuant to chapter 550. Calder has been a pari- mutuel permitholder authorized to operate thoroughbred horse racing in Miami-Dade County since 1971. The Division issued a new summer jai alai permit to Calder on February 9, 2018. The Division did not provide FHBPA, FTBOA, or OBS with formal notice that Calder had applied for a new summer jai alai permit or that the Division intended to issue a new summer jai alai permit to Calder. The Division subsequently licensed Calder to operate its summer jai alai permit in fiscal years 2018/2019 and 2019/2020. Calder is currently licensed to operate both summer jai alai and thoroughbred racing at its Miami-Dade County facility pursuant to the permits and licenses issued by the Division to Calder for thoroughbred horse racing and summer jai alai. Calder is also currently licensed to operate slot machine gaming. Calder receives approximately $85,000,000 in annual gross revenues from slot machine gaming, making this the most profitable activity Calder conducts at its facility. FHBPA is not a pari-mutuel permitholder. FHBPA is a Florida not-for- profit corporation and an association whose membership consists of a majority of horse owners and trainers (approximately 5,000 to 6,000 "horsemen"), whose horses race at thoroughbred race meets operated by the licensed thoroughbred permitholders in South Florida. Pursuant to section 551.104(10)(a)1., Florida Statutes, no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari-mutuel permit unless the applicant has on file with the Division a binding, written agreement with FHBPA governing the payment of purses on live thoroughbred horse races conducted at the licensee’s pari- mutuel facility. FHBPA and Calder have a contractual agreement, whereby Calder must run 40 days of thoroughbred horse races under its thoroughbred license. Under the current agreement between Calder and FHBPA, Calder is required to pay FHBPA a sum equal to ten percent of Calder’s gross slot machine revenues to be used for purses. This amounts to approximately $9,000,000 that FHBPA receives from Calder on an annual basis. This contractual agreement expires in 2020. Since 2014, Calder has satisfied its obligation to run a 40-day thoroughbred racing schedule by contracting with a third party, Gulfstream Park, to run races between October and November of each year. FTBOA is not a pari-mutuel permitholder. FTBOA is a Florida not-for- profit corporation, and the statewide trade association representing the interests of thoroughbred breeders and owners in Florida. Horses owned and/or bred by FTBOA members participate in the thoroughbred horse races at Calder’s race course. FTBOA is designated in section 550.2625(3)(h) as the administrator of the thoroughbred breeders’ awards program established by the Florida Legislature in sections 550.26165 and 550.2625(3). As part of this program, FTBOA is responsible for the payment of breeders’ awards on thoroughbred races conducted in Florida. Pursuant to section 550.26165(1), the purpose of breeders’ awards is to "encourage the agricultural activity of breeding and training racehorses in this state." Pursuant to section 551.104(10)(a)1., no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari- mutuel permit unless the applicant has on file with the Division a binding, written agreement with FTBOA governing the payment of breeders’, stallion, and special racing awards on live thoroughbred races conducted at the licensee’s pari-mutuel facility. FTBOA receives approximately $1,500,000 from Calder each year in breeders’ awards as a result of the Calder racing handle and slot machine revenue. OBS holds a limited intertrack wagering pari-mutuel permit, pursuant to section 550.6308, that authorizes it to conduct intertrack horse racing at its Ocala facility. OBS also holds a non-wagering horse racing permit, pursuant to section 550.505, and a thoroughbred horse sales license, pursuant to chapter 535, Florida Statutes. OBS sells thoroughbred horses at its facility located in Ocala. OBS is the only licensed Florida-based thoroughbred auction sales company in Florida, and it conducts five thoroughbred horse auctions annually. OBS has no pari-mutuel permits located in Miami-Dade County, Florida. On July 31, 2018, Calder filed a Petition for Declaratory Statement with the Division regarding whether it can discontinue the operation of its thoroughbred races and instead operate a full schedule of jai alai performances in order to maintain its eligibility to continue to conduct slot machine gaming. In its petition, Calder made clear its intention to discontinue live thoroughbred horse racing, stating: "Calder desires to discontinue live thoroughbred racing and to obtain a license to operate a full schedule of live jai alai games under its summer jai alai permit. Calder intends on conducting live jai alai games at the same physical location or piece of property where it currently conducts thoroughbred racing." On October 23, 2018, the Division issued its Final Order Granting Declaratory Statement, concluding that Calder may substitute jai alai games in lieu of live horse racing. In its Final Order, the Division also granted FTBOA’s and OBS’s motions to intervene, concluding that FTBOA met its burden of demonstrating associational standing, and that OBS demonstrated its standing pursuant to Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). The Division’s Final Order was affirmed on appeal in Florida Thoroughbred Breeders’ Association, Inc. v. Calder Race Course, Inc., 283 So. 3d 843, 845 (Fla. 1st DCA 2019). Calder intends to replace its thoroughbred permit with its jai alai permit as the predicate for maintaining its slot machine gaming permit. An incentive for Calder to substitute its jai alai permit for its thoroughbred permit is that if it stops racing horses after December 2020, Calder will be under no obligation to share the millions of dollars in revenue it receives through its slot machines with FHBPA or FTBOA. FHBPA, FTBOA, and their members will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing to qualify for the continued operation of its slot machine facility. Millions of dollars that would otherwise be available to FHBPA, FTBOA, and their members through the payment of purses and awards from thoroughbred racing will be lost if Calder is permitted to substitute its underlying pari- mutuel activity from racing thoroughbreds to conducting jai alai games. FHBPA’s and FTBOA’s substantial injury is of a type or nature which this proceeding is designed to protect. Likewise, OBS will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing. The demand to breed and purchase racehorses, and the value of breeding and selling thoroughbred horses, will decrease significantly as a consequence of Calder discontinuing thoroughbred horse racing and replacing the races with summer jai alai games. In addition, as a guest track, OBS retains seven percent of the wagers placed at OBS on thoroughbred races in Florida. OBS intertrack wagering generally handles approximately $1,000,000 on thoroughbred races conducted at Calder and Tropical Park, which directly results in revenue to OBS. OBS’s substantial injury is of a type or nature which this proceeding is designed to protect. Calder’s Summer Jai Alai Permit Application and the Division’s Proper Calculation of "Play or Total Pool" Under Section 550.0745(1) On August 31, 2017, Calder submitted an application to the Division for the issuance of a new summer jai alai permit pursuant to section 550.0745(1). The parties stipulate that, at all times material hereto, Calder was a qualified applicant as to all statutory requirements, but for the dispute as to whether a summer jai alai permit was "made available" pursuant to the second sentence in section 550.0745(1). Section 550.0745(1) provides, in pertinent part, as follows: 550.0745 Conversion of pari-mutuel permit to summer jai alai permit.- The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari- mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutual play from the operation of such pari- mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May 1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such county. If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements. Accompanying Calder’s application was a cover letter stating that the application was for the summer jai alai permit associated with state fiscal years 2005/2006 and 2006/2007. The determination of whether the Division properly granted Calder a new summer jai alai permit pursuant to section 550.0745(1) turns on whether a new summer jai alai permit was "made available" for issuance in Miami- Dade County associated with state fiscal years 2005/2006 and 2006/2007. Whether a new summer jai alai permit was made available, in turn, centers on whether there was a single, pari-mutuel permitholder with the "smallest play or total pool" within the county for the two consecutive fiscal years of 2005/2006 and 2006/2007. FHBPA, FTBOA, and OBS maintain that no new summer jai alai permit was made available for issuance in Miami-Dade County for state fiscal years 2005/2006 and 2006/2007, because there was no single Miami-Dade permitholder that had the "smallest play or total pool" in Miami-Dade County during those two consecutive fiscal years. The disagreement between the parties concerning the existence of an available permit with the "smallest play or total pool" in Miami-Dade for the fiscal years 2005/2006 and 2006/2007 centers on their different methods of interpreting section 550.0745(1) and disagreement regarding the types of wagers the Division must use in its calculation of a permitholder’s "play or total pool" pursuant to section 550.0745(1). For purposes of this case, the various types of wagers are summarized as follows: Wagers placed at a permitholder’s facility into the pool conducted by the permitholder on its own live performance are called "live on-track wagers." In addition to wagers placed at a particular facility on its live races or games, bettors may place wagers on races or games occurring offsite through intertrack wagering, which allows bettors at a guest-permit facility in Florida to bet on a race or game transmitted from and performed live at another host- permit facility in Florida. The facility holding the live event is referred to as the "host" track, and the facility taking the wager on the event being held elsewhere is referred to as the "guest" track. Wagers placed at the facility of an out-of-state entity on a live event conducted by a Florida host-permitholder are called "simulcast export wagers." Wagers placed at the facility of a Florida permitholder on a live event occurring at an out-of-state facility are called "simulcast import wagers." Wagers placed at the facility of a Florida guest permitholder on a live event, conducted at an out-of-state facility that is being rebroadcast through a Florida host permitholder’s facility to the Florida guest-permitholder’s facility, are called "intertrack simulcast as a guest." The Florida facility rebroadcasting the out-of-state signal is the "intertrack simulcast in-state host." The Division’s calculations of "smallest play or total pool" of permitholders in Miami-Dade County for the two consecutive fiscal years of 2005/2006 and 2006/2007 included the following three types of wagers, only: (1) live wagers; (2) intertrack wagers (a/k/a intertrack wagers as a host); and (3) simulcast export wagers. The Division did not include intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers in its calculations. In the state fiscal years 2005/2006 and 2006/2007, five or more pari- mutuel permitholders were authorized and licensed by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County. None of them applied to convert their permits to summer jai alai permits. The Division initially determined that West Flagler had the "smallest play or total pool" of permitholders in Miami-Dade County for the state fiscal years 2005/2006 and 2006/2007, and therefore, concluded that a summer jai alai permit was made available in Miami-Dade County. On February 9, 2018, based on the Division’s determination that Calder was a qualified applicant under chapter 550, and the rules promulgated thereto, and that a permit was available in Miami-Dade County, the Division approved Calder’s application and issued Calder a summer jai alai permit. On November 18, 2018, Calder received an operating license to conduct a full schedule of summer jai alai performances in May and June 2019. On December 9, 2018, the Division received an e-mail from FHBPA’s counsel regarding "Bet Miami," a greyhound dog racing permitholder located in Miami-Dade County, which was authorized to conduct pari-mutuel pools on exhibition sports in both Miami-Dade and Broward Counties in the state fiscal year 2005/2006, and in Miami-Dade County in the state fiscal year 2006/2007. In response to this e-mail, the Division reviewed its records, confirmed the dates that "Bet Miami" operated in Miami-Dade County in the state fiscal year 2005/2006, and calculated the amount that "Bet Miami" pooled in Miami-Dade County in this fiscal year. The Division also reviewed the operating licenses for each of the permitholders in Miami-Dade and Broward Counties and confirmed that "Bet Miami" operated in Miami-Dade County during the entire fiscal year of 2006/2007. The Division corrected its data to reflect that "Bet Miami," in fact, had the "smallest play or total pool" in Miami-Dade County for fiscal years 2005/2006 and 2006/2007. The Division now takes the position that "Bet Miami" had the "smallest play or total pool" in Miami-Dade County for the fiscal years 2005/2006 and 2006/2007.1 "Bet Miami" declined to convert its greyhound dog racing permit to a summer jai alai permit. The "Bet Miami" permit was never converted nor was an application to convert the "Bet Miami" permit to a summer jai alai permit, pursuant to section 550.0745(1), ever received by the Division. Calder built a jai alai fronton in Miami-Dade County and conducted its first jai alai meet in May and June 2019, pursuant to its operating license. 1 There is no dispute over the authenticity and accuracy of the financial information supplied by the Division’s annual reports or of the authenticity and accuracy of the "simulcast export" figures supplied by the Division. On May 15, 2019, Calder received an operating license to conduct a full schedule of jai alai performances in August and September 2019. FHBPA, FTBOA, and OBS contend that the Division erred in failing to consider all the various types of wagers in its calculation of "smallest play or total pool." According to FHBPA, FTBOA, and OBS, had the Division considered all the various types of wagers, no permit would be available for the fiscal years 2005/2006 and 2006/2007. Based on the persuasive evidence presented at hearing, the Division properly considered only live on-track wagers, intertrack wagers, and simulcast export wagers in its calculations of "smallest play or total pool" under section 550.0745(1). This is because pari-mutuel pools are only formed at the host permitholder’s track where the live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county. Had the Division included the other types of wagers (i.e., intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers) in its calculations, the handle for these various wager types would be counted twice--at the host and guest tracks. Double-counting the wagering handle would result in the Division substantially overstating the amount of handle received by permitholders.2 The Division properly found that "Bet Miami" had the "smallest play or total pool" based on its calculation of the permitholders’ in Miami-Dade 2 All wagering data is compiled by a totalizator system, such as AmTote, which calculates the overall amount of "handle" collected by each pari-mutuel facility for each transaction. The Division utilizes a sub-system called "Central Monitoring System" ("CMS"), which captures the totalizator wagering data and applies it to a racing monitoring system to calculate the overall handle from each pari-mutuel facility. The Division uses the CMS report to calculate the total amount of wagering handle pooled by a facility in state fiscal years, and together with a review of the pari-mutual licenses, determines whether a summer jai alai permit was "made available" in that county for the purpose of section 550.0745(1). "'Handle' means the aggregate contributions to pari-mutuel pools." §550.002(13), Fla. Stat. Handle is not equivalent to revenue or profitability, and a facility’s revenue has no impact on the calculation of a facility’s play or total pool. County live wagers, intertrack wagers as a host, and simulcast export wagers for the two consecutive fiscal years 2005/2006 and 2006/2007.3 Calder’s Application Complies with rule 61D-4.002 The parties stipulate that Calder was a qualified applicant as to all rule requirements, but for the dispute as to whether it has complied with rule 61D-4.002. Rule 61D-4.002 provides, in pertinent part, as follows: 61D-4.002 Evaluating a Permit Application for a Pari-Mutuel Facility. In evaluating a permit application, the division shall deny any application where the applicant fails to establish the following criteria: Financial profitability of the prospective permitholder as derived from the assets and liabilities of the applicant; the existence of any judgment or current litigation, whether civil, criminal, or administrative; the type of pari-mutuel activity to be conducted and desired period of operation; and net income projected over the first three years of operation with the permit. If the applicant is able to show any profitability as outlined in this paragraph, the Division will review the following criteria in paragraph (b). That the issuance of the permit will preserve and protect the pari-mutuel revenues of the state by generating an increase of total state revenue. In determining the financial profitability of an applicant, the Division evaluates the applicant’s overall financial situation, including its total assets and liabilities. The Division does not measure financial profitability by simply looking at the prospective pari-mutuel activity to be conducted pursuant to the permit application. 3 As discussed more fully in the Conclusions of Law below, the Division’s method of calculating the "smallest play or total pool" for purposes of section 550.0745(1) is consistent with the clear, unambiguous, and plain language of section 550.0745(1), and Florida appellate decisions. In the instant case, Calder demonstrated its profitability as derived from its assets and liabilities. Calder submitted financial statements, annual reports, balance sheets, and tax reports. The uncontroverted evidence adduced at hearing demonstrates that Calder is a financially stable and profitable company. As to the existence of any judgment or current litigation, whether civil, criminal, or administrative, Calder submitted a list of its active litigation. As to the type of pari-mutuel activity to be conducted and the desired period of operation, Calder provided the information on its application. As to the net income projected over the first three years of operation with the permit, Calder submitted an initial pro forma. The Division sent Calder a deficiency letter following its review of the initial pro forma. In response, Calder submitted an amended pro forma showing the projected net income derived from the operation of the permit over the first three years. Ms. Swain, the Division’s program administrator, testified that the amended pro forma included $32,329 in year one for projected live gaming taxes to the State, which is not unreasonable. The amended pro forma also included additional amounts for projected intertrack gaming taxes to the State and an additional $72,000 to the State each year for projected license fees. As Ms. Swain persuasively testified, the amounts paid by Calder to the State of Florida in taxes and license fees over the first three years of operation of the permit would result in an increase in state revenues. These tax revenues and license fees would not be available to the State of Florida without the issuance of the summer jai alai permit to Calder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving Calder Race Course, Inc.’s, application for a new summer jai alai permit and subsequent licenses.6 6 FHBPA, FTBOA, and OBS challenge the issuance of Calder’s operating licenses for fiscal years 2018/2019 and 2019/2020 based solely on the alleged invalidity of the underlying summer jai alai permit. Because Calder is entitled to the summer jai alai permit, it is also entitled to the operating licenses. DONE AND ENTERED this 7th day of April, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2020. COPIES FURNISHED: Megan S. Silver, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Bradford J. Beilly, Esquire Beilly and Strohsahl, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 (eServed) Wilbur E. Brewton, Esquire Brewton Plante, P.A. 215 South Monroe Street, Suite 825 Tallahassee, Florida 32301 (eServed) Daniel Hernandez, Esquire Shutts & Bowen LLP 4301 West Boy Scout Boulevard, Suite 300 Tampa, Florida 33607 (eServed) Tamara S. Malvin, Esquire Akerman LLP 350 East Las Olas Boulevard, Suite 1600 Fort Lauderdale, Florida 33301 (eServed) Raymond Frederick Treadwell, General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Brittany Adams Long, Esquire Radey Law Firm, P.A. 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 (eServed) Johnny P. ElHachem, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Louis Trombetta, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed)
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 550.105(6), Florida Statutes and Rule 61D-1.006(3)(a)2, Florida Administrative Code, by having unpaid financial obligations that directly relate to racing being conducted at a pari-mutual facility within this state.
Findings Of Fact At all times material to this case, David Monaci, an individual, held three pari-mutuel wagering occupational licenses, to-wit: Thoroughbred Trainer, DPMW license number 1079030-3050; Authorized Agent, DPMW license number 1079030- 1047; and an Unrestricted "U1" Professional license, DPMW license number 1079030-1081. David Monaci has some form of interest in, or relationship with, a corporation that is named either David Monaci Stable Inc., or D. Monaci Stable, Inc. The nature and extent of David Monaci's interest in, or relationship with, that corporation is not revealed by the evidence in this case. 3/ At some time during 1993, David Monaci, acting on behalf of the corporation named David Monaci Stable, Inc., or D. Monaci Stable, Inc., entered into an agreement with the Country Western Store in Davie, Florida, pursuant to which the Country Western Store would supply food and other necessities for the race horses being handled by David Monaci at the Gulfstream Park horse race track. The food and other necessities supplied by the Country Western Store were invoiced to "David Monaci Stable, Inc.", at an address in New Jersey. After the invoices went unpaid for a number of months, the Country Western Store quit providing anything for the race horses being handled by David Monaci. Shortly thereafter, the Country Western Store filed a lawsuit in Circuit Court in Broward County, Florida, against David Monaci Stable, Inc., seeking to recover the amount owed for the food and necessities it had furnished for race horses handled by David Monaci. On September 8, 1994, a Final Judgement was entered in favor of the Country Western Store and against David Monaci Stable, Inc. The Final Judgement provides, in pertinent part: 2. Plaintiff does have and recover from the Defendant, DAVID MONACI STABLE ,INC., the sum of $20,013.46 for damages, $224.76 for costs, $605.00 for attorneys fees, and $915.19 for interest, for all of which let execution issue. As of the date of the formal hearing in this case, nothing has been paid towards the satisfaction of the Final Judgement described immediately above. The Country Western Store did not sue David Monaci individually. The Country Western Store does not have a Final Judgement against David Monaci individually. The extent, if any, to which David Monaci in his individual capacity may or may not be responsible for the debts of David Monaci Stable, Inc., is not revealed by the evidence in this case.
Recommendation On the basis of all of the foregoing, it is Recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint on the grounds that the evidence is insufficient to prove that the license holder, David Monaci, is responsible for any of the debts or obligations. DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 14th day of August, 1996.
The Issue The issue is whether Petitioner's Notice of Intent to Withdraw License should be granted or dismissed.
Findings Of Fact At all material times, Respondent has held The Permit, which authorizes Respondent to conduct summer jai-alai performances in Dade County. In 1980, Respondent converted a greyhound racing permit into the Permit, as authorized by a predecessor to section 550.0745, which is discussed in the Conclusions of Law. Each year, as required by section 550.0115, Respondent has obtained an operating license under the Permit to conduct performances, which it has done at the same location named in the Permit. On December 26, 2016, Respondent filed an application for an operating license for 2017-18. This application sought a license to conduct performances in Dania, which is in Broward County. The new location is less than 35 miles from the Dade County location mentioned in the preceding paragraph. Petitioner's employee assigned to examine applications attached a large post-it note to the portion of the application advising of the change in operating location from Dade to Broward county. The note is still attached to the file, which was presented at the final hearing. The note is impossible to miss. On March 10, 2017, Petitioner granted the operating license, which authorizes Respondent to conduct summer jai-alai performances in Dania for the 2017-18 season. In reliance on the 2017-18 operating license, Respondent has terminated its lease for the Dade County facility and entered into a lease for the Dania facility. Following a complaint from the lessor of Respondent's Dade County location, the Division of Pari-Mutuel Wagering (Division) concluded that it had issued the operating license in error, determined that an operating license for a converted permit must be limited to the county named in the converted permit, and issued the NOI on June 1, 2017. Directed to Respondent, the NOI does not allege that Respondent has violated any statute or rule. Instead, the NOI states only that Petitioner issued the operation license "in error as [Respondent] is not authorized to operate summer jai-alai performances via The Permit outside of Miami-Dade County." The NOI never mentions section 550.475. At one time, Petitioner construed section 550.475, which is discussed below, to allow a holder of a county-specific permit to relocate performances to a facility located within 35 miles from the facility, but in another county, and a circuit court has sustained this construction. In the past, Petitioner issued operating licenses to holders of converted or created permits that authorized performances at the licensed location or a facility leased pursuant to section 550.475. It is unclear, though, when Petitioner changed its position. Division directors changed between the issuance of the 2017-18 operating license and the NOI, and it is unlikely that the former director missed the proposed out-of-county relocation described in the application for the 2017-18 operation license. However, these two facts do not preclude a mistake of law, as Petitioner contends, so that the NOI is not necessarily a statement that represents a change in longstanding policy. The NOI states that the operating license is based on a mistake of law, but Petitioner's proposed recommended order states that the operating license is a mistake of law--the same conclusion that the Administrative Law Judge reaches in the Conclusions of Law.
Recommendation RECOMMENDED that Petitioner enter a final order dismissing the Notice of Intent to Withdraw License. DONE AND ENTERED this 12th day of December, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2017.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
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: At all times material to the instant case, Respondent has held a pari-mutuel wagering occupational license (license number 0609951-1081) issued by Petitioner. 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. In April of 1997, Sixty-Five Roses sustained an injury while racing at Pompano Park. 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). The total charge for the veterinary services rendered by Dr. Cohen was $257.00. 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). 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." On or about May 5, 1997, Mr. Zenker paid PRPA the $128.50 he had been billed. The $128.50 that PRPA had billed Ms. Johnson, however, was not paid. PRPA sent Ms. Johnson a statement each month requesting payment. 1/ 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. 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. 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. Respondent has not made any payments to PRPA to satisfy this judgment, nor has he sought to have the judgment set aside.
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.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO 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 19th day of March 1996.
