Findings Of Fact The parties At all times material hereto, respondents, Grover C. Wheeler (Wheeler) and Robert L. Miller (Miller) held pari-mutual wagering occupational license numbers 0292781 and 0303824, respectively. Wheeler is licensed as a horse owner and trainer, and Miller is licensed as a horse owner. Respondents, William W. McKibbin (McKibbin) and Gaylord Huenfeld (Huenfeld) are the owners of the quarterhorses "OJ's Diamond" and "Makeaduckdance", respectively. At all times material hereto, McKibbin and Huenfeld had employed Wheeler to train and race their horses. The 1987 quarterhorse meet During the 1987 quarterhorse meet at Pompano Park Race Track, an association authorized to conduct quarterhorse racing in the State of Florida, Wheeler was the trainer of a number of horses, including "OJ's Diamond", "Makeaduckdance", "Mr. Tony B. Tuff", "Saint Shining", and "The Game Time." Miller, although licensed as a horse owner, was a full-time employee of Wheeler. On May 13, 1987, Wheeler ran "OJ's Diamond" in the First Division Laddie Stake trials. "OJ's Diamond" was the winner of the trials, and thereby qualified for the Laddie Stake Race to be held on May 22, 1987. When the Laddie Stake Race was run on May 22, 1987, "OJ's Diamond" won, and McKibbin was awarded the first place purse for the race. On May 14, 1987, Wheeler ran "Makeaduckdance" in the Seventh Division Lassie Stake trials. "Makeaduckdance" was the winner of the trials and thereby qualified for the Lassie Stake race on May 22, 1987. When the Lassie Stake race was run on May 22, 1987, "Makeaduckdance" won, and Huenfeld was awarded the first place purse for the race. On May 15, 1987, Wheeler ran "Mr. Tony B. Tuff" in the sixth race at Pompano Park. "Mr. Tony B. Tuff" finished second in that race. Between the eighth and ninth race of May 15, 1987, David Boyd, then chief investigator for the Division of Pari-Mutual Wagering, accompanied Dr. Phillips, a veterinarian, to Wheeler's barn to witness the treatment of a horse. Upon arriving at the barn, Mr. Boyd observed Miller and another individual later identified as Bruce Edmunds, a quarterhorse trainer and acquaintance of Wheeler. Mr. Boyd observed Miller call Edmunds over to him and engage in a brief conversation, after which Edmunds proceeded to a plastic bucket located under the shed row of Wheeler's barn, which he removed to Wheeler's tack room. Considering Edmunds' and Miller's behavior unusual, Mr. Boyd followed Edmunds to Wheeler's tack room where he confronted Edmunds with his credentials and inspected the contents of the bucket. At that time, Mr. Boyd learned that Edmunds did not own the bucket, but had been requested by Miller to remove it from the shed row to the tack room. An inventory and analysis of the contents of the bucket revealed the presence of hypodermic needles, syringes, and various injectable bottles which contained Buprenorphine, Naloxon, and Oxymorphone, all narcotic drugs. Additionally, a racing program was found among the contents of the bucket which contained both Wheeler's and Miller's fingerprints. While Wheeler was not present at the barn when the bucket was discovered, the evidence links him and Miller inexplicably to it and its contents. Notably, Wheeler was observed in his tack room on May 13, 1987, with an injectable type syringe. Following Mr. Boyd's discovery, the state steward was notified, and the horses Wheeler had entered in the eleventh and twelfth races, "Saint Shining" and "The Game Time," respectively, were scratched on suspicion that they may be under the influence of a narcotic. Subsequently, the urine samples that had been taken from "OJ's Diamond" following its win on May 13, 1987, from "Makeaduckdance" following its win on May 14, 1987, and from "Mr. Tony B. Tuff", "Saint Shining" and "The Game Time", following the discovery of the bucket on May 15, 1987, were analyzed. Upon analysis, the urine samples taken from each horse proved positive for the presence of Buprenorphine, a narcotic drug. Buprenorphine is a synthetic morphine derivative which, in low dosage, has a stimulatory effect on animals. In such doses, the drug will cause a horse to exceed its natural running ability. At no time did Wheeler or any respondent offer any proof that the subject drugs were possessed or administered under the authority of a prescription issued by a physician or veterinarian, nor did they notify the state steward that such substances would be upon the association's premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order as follows: Revoking Wheeler's trainer and horse owner license number 0292781. Sustaining the suspension of Miller's owner license number 0303824, and suspending such license for the period commencing on the date of its emergency suspension until the date of the final order entered herein. Redistributing the purses awarded in the Laddie and Lassie Stakes finals according to revised racing results based on the disqualification of "OJ's Diamond" and "Makeaduckdance." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of September, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-0993, 88-1335, 88-1336, 88-1337, 88-1338 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraphs 3-6 and 10. 2(sic)-4. Addressed in paragraphs 12 and 13. Addressed in paragraphs 7 and 8. Addressed in paragraph 9. Addressed in paragraphs 9 and 10. Addressed in paragraph 14. COPIES FURNISHED: W. Douglas Moody, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Norman Rose, Esquire Attorney for Grover C. Wheeler and Gaylord Huenfeld Radice Corporate Center 800 Corporate Drive Suite 224 For Lauderdale, Florida 33334 Robert L. Miller, Esquire Post Office Box 3611 Plant City, Florida 34289 William W. McKibbin 4603 Northwest 6th Street Gainesville, Florida 32609 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Billy Vessel, Director Pari-Mutual Wagering 1350 Northwest 12th Avenue Room 332 Miami, Florida 33136-2169 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
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 offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a veterinarian licensed in the State of Florida. On October 8, 1990, Respondent received pari-mutuel wagering occupational license number 0364610-1046 from the Petitioner. Respondent held this pari-mutuel wagering occupational license at all times pertinent to this proceeding. Petitioner is the State agency responsible for the regulation of the horse racing industry in the State of Florida. At all times pertinent to this proceeding, Respondent worked as a racetrack veterinarian at Pompano Harness Track (Pompano Track) in Pompano Beach, Florida. James Gabriel is a sixteen year veteran of the Fort Lauderdale, Florida, Police Department. During the latter part of 1992, Officer Gabriel began an undercover investigation at Pompano Track as part of his duties with the Metropolitan Organized Crime Intelligence Unit. Officer Gabriel posed as a convicted felon who was the owner of the horse Yankee Roughneck. Horse owner Herman Berger registered Yankee Roughneck in his (Berger's) name since as a convicted felon, Officer Gabriel's undercover persona would not be allowed to register as the true owner. Mr. Berger was a target of Officer Gabriel's undercover investigation and did not know that Officer Gabriel was in fact a police officer. Officer Gabriel and Mr. Berger were in contact with one another on almost a daily basis between November 1992 and May 1993. Mr. Berger owned the horse You've Got The Time. Officer Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Officer Gabriel was a part were tape recorded without the knowledge of the other participants in the conversation. At all times pertinent to this proceeding, Yankee Roughneck and You've Got The Time were standard bred horses that raced at Pompano Track. On the morning of May 24, 1993, Officer Gabriel met with Mr. Berger and discussed having Respondent give Yankee Roughneck a substance to make him run faster. Mr. Berger referred to the substance to be given to Yankee Roughneck as being a "malt". A malt is also known as a "milkshake" and as an "ionic boost". Later that same day Officer Gabriel came into contact with Respondent when Respondent arrived at Pompano Track at the stable of Charlie Giamanco, the trainer of Yankee Roughneck. Respondent was at the stable to treat Yankee Roughneck for an injury that occurred when the rail of a jog cart broke and a splinter stabbed Yankee Roughneck in the shoulder. Officer Gabriel was in the presence of Mr. Berger and Mr. Giamanco when Respondent arrived at the stable. Respondent did not know Officer Gabriel, but he knew that Officer Gabriel was a colleague of Mr. Berger. Officer Gabriel engaged in a conversation with Respondent which was electronically monitored by equipment in good working order. The following conversation among Respondent (P.P.), Officer Gabriel (J.G.), Mr. Berger (H.B.), and Mr. Giamanco (C.G.) was taped. This conversation pertains to racing Yankee Roughneck and ways to enhance the horse's performance. P.P.: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible.) H.B.: He came, he raced but not the way he supposed (sic) to. P.P.: I'll speak with Charlie tomorrow morning. Well the only thing to do is to try it one start. H.B.: Yes. P.P.: Not (sic) that expensive to do. (Unintelligible.) H.B.: Exactly. P.P.: If the horse improves. H.B.: Alright (sic). J.G.: How long does it take before we do something like that for (unintelligible). P.P.: Two and a half hours before the race. Thereafter, Respondent made the following statement: P.P.: OK, the same thing that we used to, when we used to pass the tube, you know, but now, we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringe. Put it on the back of their tongue a hundred and eighty c.c. and (unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him shows on the box. Subsequently in the conversation, the following dialogue occurred: H.B.: And we going (sic) to do for Yankee Roughneck (unintelligible). J.G.: Well, what day do we want to do that? When we find out when he's, I think he's in Thursday. P.P.: Okay. H.B.: We'll find out today. P.P.: (Unintelligible) check with Charlie and the day he gets in. H.B.: Yeah. The milkshake referred to by Respondent and by the other participants in this conversation is a liquid concoction that includes a mixture of sodium bicarbonate. As described by Respondent, the mixture would thereafter be given the horse by dose syringe. This mixture is given to a racehorse in the hopes of enhancing the horse's performance during the race. In the amounts discussed by Respondent, sodium bicarbonate meets the definition of a "medicine" within the meaning of Section 550.235(2), and Section 550.2415(1)(a) and (8), Florida Statutes. The evidence established that sodium bicarbonate raises the ph level in the horse beyond the normal physiological range and can be expected to delay muscle fatigue in a horse by buffering the buildup of lactic acid in the muscle during periods of exercise. The horse can be expected to run faster because the onset of fatigue will be delayed. An improvement of one to two seconds can be expected in the horse's racing time, which equates to approximately five lengths in a harness race. Sodium bicarbonate is also administered to racehorses to prevent a condition formally known as exertional rhabdomyolisis and informally referred to as "tying up". The onetime administration of sodium bicarbonate shortly before race time under the facts of this case was to enhance the horse's performance and not to prevent tying up. If the prevention of tying up had been the goal, small amounts of sodium bicarbonate would had been added to the horse's food over an extended period of time. The Respondent's reference to the "black box" in the taped conversation is to a device employed by many race tracks to test whether a horse has been "milkshaked" or otherwise improperly medicated. Pompano Track did not use a blackbox. The Respondent's reference to "tubing" a horse is a prohibited practice whereby a stomach tube is passed through the horse's mouth and into the stomach. The "milkshake" is thereby pumped directly into the horse's stomach. The tubing of a race horses is a practice prohibited by rule adopted by Petitioner. The tubing rule was adopted by Petitioner in an effort to stop the practice of tubing horses by grooms or trainers who have inadequate training and to prevent the practice of milkshaking horses. Typically, more of the concoction would be administered by tubing than by using the dose syringe. The evidence established that the amount of sodium bicarbonate discussed by Respondent is sufficient to enhance the horse's performance. Administering the "milkshake" by syringe, as Respondent said he would do, would not violate Petitioner's rule against tubing a horse. Administering the "milkshake" by syringe, as Respondent said he would do, would constitute the administration of a medication within twenty-four hours of a race in violation of Section 550.2415(8), Florida Statutes. The Thursday referred to in the conversation is May 27, 1993, the day that Yankee Roughneck was next scheduled to race. On May 27, 1993, Dr. Michael Carinda, a veterinarian who was in practice with Respondent, brought a "milkshake" to Yankee Roughneck's stable. A groom thereafter administered the milkshake to Yankee Roughneck in the manner described by Respondent. Yankee Roughneck placed third in his race, but he ran slightly slower than he had in his previous race. The evidence did not establish that Respondent agreed to "milkshake" the horse You've Got The Time within twenty-four hours of a race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent not guilty of the offenses alleged in Counts One, Four, Five, and Six of the Amended Administrative Complaint. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent guilty of the offenses alleged in Counts Two and Three, suspend Respondent's occupational license for a period of one year, and assess against Respondent an administrative fine in the amount of $2,000. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of December 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5993 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 20, 21, 26, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, and 46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 40 are adopted in part by the Recommended Order, but are rejected in part as being argument that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 11, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 8 are rejected as being unnecessary to the conclusions reached. The composition of the concoction referred to as a "milkshake" was described in the Amended Administrative Complaint and was established at the formal hearing. The proposed findings of fact in paragraph 6 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 7 are subordinate to the findings made. The proposed findings of fact in paragraphs 8, 12, and 13 are rejected as being argument. The proposed findings of fact in paragraphs 9 and 10 are rejected as being unnecessary to the conclusions reached or as being contrary to the findings made. The proposed findings of fact in paragraphs 14 and 16 are rejected as being argument that is contrary to the conclusions reached or to the findings made. COPIES FURNISHED: Richard A. Grumberg, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Karen C. Amlong, Esquire William Amlong, Esquire Amlong and Amlong 500 Northeast 4th Street, 2nd Floor Fort Lauderdale, Florida 33301 Dr. Paul R. Plante 1450 Southwest Third Street Pompano Beach, Florida 33069 William E. Tabor, Director Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“Division”), relied on an unadopted rule when it issued a 2016-2017 annual operating license and cardroom license to the South Florida Racing Association, LLC, d/b/a Hialeah Park (“Hialeah”), and continued to authorize slot machine operations at Hialeah beyond June 30, 2016.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, including the parties’ Joint Prehearing Stipulation, the following Findings of Fact are made: The FQHRA is a Florida not-for-profit corporation located in Tallahassee. It comprises members in good standing of its parent organization, the American Quarter Horse Association. The FQHRA describes its mission as promoting the owning, breeding, and racing of Florida-bred quarter horses. The FQHRA represents 602 breeders, owners, and trainers of quarter horses, many of whom have participated in the annual quarter horse meet at Hialeah Park. During the 2015-2016 racing season, 535 members of the FQHRA participated at Hialeah Park in a full schedule of live racing. The FQHRA is named specifically in statutes related to quarter horse racing in Florida. It is the statutory “default” horsemen’s association for purposes of setting the schedule of racing at quarter horse racetracks and representing quarter horse owners in negotiating purse agreements with quarter horse permitholders pursuant to sections 550.002(11), 551.104(10)(a)2. and 849.086(13)(d), Florida Statutes. Hialeah is the holder of a horse racing permit that authorizes it to conduct quarter horse racing at its facility, Hialeah Park, in Miami-Dade County, Florida. The Division is the state agency responsible for implementing and enforcing Florida’s pari-mutuel laws, including the licensing and regulation of all pari-mutuel activities conducted in the state. The Division’s regulatory duties include the adoption of “reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees and for the holding, conducting, and operating of all racetracks, race meets, and races held in this state.” § 550.0251(3), Fla. Stat. Gambling is generally prohibited under Florida law. See chapter 849, Florida Statutes, establishing criminal penalties for many forms of gambling.1/ However, certain types of pari-mutuel activities, including wagering on horse racing, have been authorized. In recent years, the Legislature has expanded the gambling activities that may occur at the facilities of licensed pari-mutuel permitholders by authorizing the operation of slot machines and cardrooms at pari-mutuel facilities. These operations are conditioned upon licensing requirements that include having a “binding written agreement” with the FQHRA or “the association representing a majority of the horse owners and trainers at the applicant’s eligible facility” as to the payment of purses on live quarter horse racing conducted at the facility. §§ 551.104(10)(a)2. and 849.086(13)(d)3., Fla. Stat. These conditions are commonly referenced as “coupling” the expanded gambling operations with the promotion of horse racing in the state. The Legislature has enacted specific conditions to be met by applicants for slot machine and cardroom licenses to ensure that coupling occurs. Section 551.104, the slot machine licensing statute, sets forth conditions specific to thoroughbred racing and similar conditions specific to quarter horse racing. For purposes of this proceeding, the quarter horse provision at subsection (10)(a)2. is relevant: No slot machine license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari- mutuel wagering meets of quarter horse racing unless the applicant has on file with the division a binding written agreement between the applicant and the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility, governing the payment of purses on live quarter horse races conducted at the licensee’s pari-mutuel facility. The agreement governing purses may direct the payment of such purses from revenues generated by any wagering or gaming the applicant is authorized to conduct under Florida law. All purses shall be subject to the terms of chapter 550. Section 849.086(13)(d)3. contains a virtually identical condition for a quarter horse racing permitholder seeking to operate a cardroom at its facility: No cardroom license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari-mutuel wagering meets of quarter horse racing unless the applicant has on file with the division a binding written agreement between the applicant and the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility, governing the payment of purses on live quarter horse races conducted at the licensee’s pari-mutuel facility. The agreement governing purses may direct the payment of such purses from revenues generated by any wagering or gaming the applicant is authorized to conduct under Florida law. All purses shall be subject to the terms of chapter 550. Once a track obtains its initial permit from the Division to conduct a particular type of pari-mutuel wagering, it must thereafter apply annually to the Division and obtain a license to conduct pari-mutuel operations. The license authorizes the track to conduct pari-mutuel wagering performances under its permit on the specific dates identified on the license. A permitholder must file its application between December 15 and January 4, for a license to conduct performances during the next state fiscal year, i.e., July 1 through June 30. The permitholder is entitled to amend its application through February 28. § 550.01215(1), Fla. Stat. The Division is also responsible for issuing licenses for cardroom gaming at a licensed pari-mutuel permitholder's facility. "A cardroom license may only be issued to a licensed pari-mutuel permitholder and an authorized cardroom may only be operated at the same facility at which the permitholder is authorized under its valid pari-mutuel wagering permit to conduct pari-mutuel wagering activities." § 849.086(5)(a), Fla. Stat. After initial issuance, a cardroom operator must apply annually for renewal of its cardroom license, which must be submitted in conjunction with the annual application for the pari-mutuel license. § 849.086(5)(b), Fla. Stat. To maintain its eligibility to operate cardrooms, the licensee must: [h]ave requested, as part of its pari-mutuel annual license application, to conduct at least 90 percent of the total number of live performances conducted by such permitholder during either the state fiscal year in which its initial cardroom license was issued or the state fiscal year immediately prior thereto if the permitholder ran at least a full schedule of live racing or games in the prior year. § 849.086(5)(b), Fla. Stat. The Division is also responsible for authorizing slot machine operations through the issuance of annual licenses pursuant to sections 551.104 and 551.105. As with cardrooms, slot machines may only be operated at a permitholder's eligible facility identified in a valid pari-mutuel wagering permit. § 551.104(3), Fla. Stat. As a condition of licensure, the slot machine licensee must conduct "no fewer [sic] than a full schedule of live racing or games as defined in s. 550.002(11)." § 551.104(4)(c), Fla. Stat. Section 550.002(11) sets forth the definition of “full schedule of live racing or games.” As to quarter horse permitholders, the definition provides, in relevant part: “Full schedule of live racing or games” means . . . for a quarter horse permitholder at its facility unless an alternative schedule of at least 20 live regular wagering performances is agreed upon by the permitholder and either the Florida Quarter Horse Racing Association or the horsemen’s association representing the majority of the quarter horse owners and trainers at the facility and filed with the division along with its annual date application . . . for every fiscal year after the 2012-2013 fiscal year, the conduct of at least 40 live regular wagering performances. Hialeah began quarter horse racing in 2009, partnering with the FQHRA to obtain initial approval from the Division to operate slot machines at the Hialeah Park facility. The FQHRA provided the horses and trainers needed by Hialeah to conduct two quarter horse race meets, one at the end of 2009 and one at the beginning of 2010. These race meets were timed to meet the definition of “eligible facility” set forth in section 551.102(4), which provides in relevant part that a licensed pari-mutuel facility may apply for a slot machine license “provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application.” Hialeah and FQHRA entered into exclusive horsemen's agreements,2/ hereinafter referred to collectively as the “FQHRA Agreement,” to govern the payment of purses on live quarter horse races conducted at Hialeah's pari-mutuel facility for the 2009-2010 racing season through the 2015-2016 racing season. The FQHRA Agreement was valid through June 30, 2016. The last quarter horse race at Hialeah for the 2015-2016 season was February 29, 2016. As noted above, section 550.01215(1) requires a pari- mutuel permitholder to file its license renewal application between December 15 and January 4 for the next state fiscal year, and permits the applicant to amend its application through February 28. Section 550.01215(2) requires the Division to issue the license no later than March 15. Cardroom licenses must also be renewed annually, in conjunction with the applicant’s annual application for its pari-mutuel license. § 849.086(5)(b), Fla. Stat. Slot machine licenses are valid for one year and must be renewed annually. § 551.105(1), Fla. Stat. Hialeah’s most recent slot machine license was issued on December 11, 2015. In September 2015, it was apparent that Hialeah might be looking for options other than entering into a horsemen’s agreement with the FQHRA for the 2016-2017 season. On or about September 15, 2015, Hialeah's legal counsel, Andrew Lavin, met with Jonathan Zachem, then the director of the Division, and Jason Maine, legal counsel for the Division, to discuss several issues, including the upcoming application process. In a follow-up letter to Mr. Maine and Mr. Zachem, Mr. Lavin wrote: During our meeting you confirmed that the Division has on file SFRA's purse agreement with the Florida Quarter Horse Racing Association, which expires on June 30, 2016 (the "SFRA/FQHRA Agreement"). You also confirmed that the SFRA/FQHRA Agreement serves as the requisite agreement for SFRA's applications for its upcoming slots license and cardroom license. SFRA shall file its application accordingly. You further explained that it is the Division's position that by the expiration date of the SFRA/FQHRA Agreement, SFRA is required to have a new agreement on file with the Division that is effective as of July 1, 2016, and that meets the requirements of § 551.104(10)(a)(2), Fla. Stat., and § 849.086(13)(d)(3), Fla. Stat. Mr. Zachem confirmed that the meeting occurred and did not dispute the substance of Mr. Lavin’s letter. Representatives of the FQHRA met independently with the Division's leadership, including Jonathan Zachem and Jason Maine, in mid-September 2015, to discuss FQHRA's concerns with respect to Hialeah's license applications and the negotiations with Hialeah for a new horsemen's agreement for the 2016-2017 fiscal year. FQHRA came away from this meeting with the understanding that the Division would rely on the FQHRA Agreement to allow Hialeah to continue slot machine operations until the agreement expired on June 30, 2016, and that a new horsemen’s agreement would have to be in place for Hialeah to renew its cardroom license. Hialeah received a renewal of its slot machine license on December 11, 2015. In issuing this license, the Division relied on the FQHRA Agreement that would expire on June 30, 2016. Hialeah electronically submitted its application for its 2016-2017 racing license and cardroom gaming license on December 23, 2015. On February 26, 2016, Hialeah electronically submitted an amended application for its annual racing license. At the time of Hialeah’s applications for its 2016-2017 racing and cardroom licenses, the FQHRA Agreement was the only purse agreement in the Division’s files for Hialeah. In its December 2015 filings, Hialeah requested a full schedule of live racing and renewal of its cardroom gaming license for the 2016-2017 race year. A "full schedule of live racing" for the 2016-2017 quarter horse meet at Hialeah Park would be 40 live regular wagering performances, absent an alternative schedule agreed to by Hialeah and either the FQHRA or the horsemen's association representing the majority of the owners and trainers at Hialeah. Jamie Pouncey is the Division employee responsible for reviewing license applications for completeness. Ms. Pouncey has no authority to approve or reject license applications. Only the Division director has approval authority. Ms. Pouncey testified that having a valid horsemen’s agreement on file is a requirement for purposes of processing the cardroom application and for issuing the operating license. In reviewing Hialeah’s racing license application, Ms. Pouncey utilized a Division checklist that enumerated the necessary forms and other requirements. One of the items on that checklist stated: “a copy of the binding written agreements between the facility and respective associations (horsemen’s agreement) as required by section 849.086(13)(d)(3), Florida Statutes (Quarter Horse Only).” Ms. Pouncey marked the checklist to indicate that Hialeah met this requirement. In so doing, Ms. Pouncey relied on the FQHRA Agreement, which remained valid until June 30, 2016. On February 25, 2016, Dr. Steven Fisch, a former president and current board member of the FQHRA, sent an email to Ms. Pouncey inquiring whether Hialeah had applied for its 2016-2017 quarter horse racing license and whether it had submitted a horsemen's agreement. Ms. Pouncey responded that "there is one on file valid through 06/30/2016," and later confirmed to Dr. Fisch that the FQHRA Agreement was the only one on file for Hialeah at that time. On February 26, 2016, Hialeah electronically transmitted its amended racing license application to the Division. The amended application requested to run a reduced schedule of 36 performances instead of the full schedule of 40 requested in the December 2015 filing. At the time the amended application was filed, the only horsemen’s agreement on file at the Division for Hialeah remained the FQHRA Agreement, which included no deviation from the 40-performance schedule. On March 8, 2016, Ms. Pouncey indicated on the Division's checklist that Hialeah's amended application for a racing license and its application for a cardroom gaming license were complete, with all the necessary documentation in place. She forwarded Hialeah's renewal applications to Mr. Zachem, along with draft licenses for his signature. Ms. Pouncey testified that in her application review, she does not look at the issue of whether the applicant is requesting less than a full schedule of live racing dates. She had no specific recollection of whether Hialeah requested less than a full schedule. She made no assessment of whether 36 dates constitutes less than a full schedule. Ms. Pouncey testified that she would “consult management” if the issue arose during her application review, but stated that she did not do so regarding Hialeah’s application. On March 15, 2016, Hialeah electronically submitted to the Division a horsemen’s agreement between Hialeah and the SFQHA (the “SFQHA Agreement”). It represented that the SFQHA would be the horsemen’s association representing the majority of the horsemen at Hialeah Park effective July 1, 2016. Also on March 15, 2016, the SFQHA’s articles of incorporation were filed with the Secretary of State. Regarding who would represent the majority of the horsemen at Hialeah, the preamble of the SFQHA Agreement states: WHEREAS, because only horses owned by members of SFQHA will be eligible to participate in races during the race meet, the SFQHA is the horsemen's association that represents all of the horse owners and trainers at SFRA's facility who will participate in the live quarter horse events that will be conducted by Hialeah at Hialeah Park during the race meet to which this Agreement is applicable. The substance of the SFQHA Agreement elaborates as follows: 13. For and in consideration of the purse payments that Hialeah has agreed to make as provided in paragraph 4 above, Hialeah agrees that it will accept entries during the Race Meet only from owners and/or trainers: (a) that appear on the membership roll of the SFQHA as a member in good standing; and (b) that have on file with Hialeah a photocopy of an executed original “Pledge Card” in the form attached as Exhibit A whereby said owner and/or trainer has appointed the SFQHA to represent said owner and/or trainer for the purposes stated in § 550.002(11); § 551.104(10); § 849.086(13); and the IHA [Interstate Horseracing Act of 1978]. The SFQHA shall maintain up to date membership information that it will provide to Hialeah in order for Hialeah to comply with the requirements of this paragraph. Furthermore, Hialeah and the SFQHA agree that all entries shall be horses from qualifying breeds that have either been bred in the State of Florida or have been permanently based in the State of Florida during the calendar year preceding the day on which the horse is entered to race at Hialeah Park. No exceptions will be granted to the requirements of this paragraph. Regarding whether Hialeah would be required to run a full schedule of 40 performances during the racing season, the SFQHA Agreement states: 3. The parties agree that Hialeah has the managerial prerogative to determine the dates and the number of operating performances for which Hialeah shall seek authorization when filing an application for an operating license. * * * 12. The SFQHA hereby authorizes Hialeah to file this Agreement with the Division evidencing compliance by Hialeah with the provisions of Chapters 550, 551 and 849 that require the filing of this Agreement with the Division of Pari-Mutuel Wagering as a condition precedent to annual operating, cardroom and/or slot machine licensure. Specifically with regard to the number of performances that Hialeah shall operate, the SFQHA hereby provides the consent required by § 550.002(11) to authorize Hialeah to operate 36 performances during the Race Meet. The authorizations, approvals and consents set forth in this Agreement shall remain in full force and effect through June 30, 2017. On March 15, 2016, the Division issued to Hialeah a permit to conduct quarter horse racing at Hialeah Park for the fiscal year 2016-2017. The license, signed by Mr. Zachem as director of the Division, authorized 36 regular performances, as requested by Hialeah’s amended application. The FQHRA contends that the Division's issuance of licenses to Hialeah is based on a new, unpromulgated policy that allows pari-mutuel permitholders to unilaterally control racing dates and purse decisions without the involvement of an independent horsemen's association. The FQHRA also alleges that the Division is operating pursuant to a new, unpromulgated policy of allowing amendments to license applications after February 28 of a given year. The FQHRA urges the conclusion that the Division's issuance of licenses to Hialeah represents a new policy and/or interpretation of the statutory requirements that have not been promulgated as required by chapter 120, Florida Statutes. The FQHRA alleges that the Division's actions and new interpretations effectively authorize "decoupling" by allowing pari-mutuel permitholders to unilaterally control racing dates and purse agreements. The FHQRA presented extensive testimony regarding the Legislature’s intent when it established the requirement of a horsemen’s agreement between a permitholder and a horsemen’s association as a condition of licensure to operate slot machines or cardrooms, and the need for arm’s length negotiations in establishing those agreements. Dr. Fisch was involved in the effort in the late 1990s and early 2000s to found the FQHRA and re-establish quarter horse racing in Florida. He testified that an independent horsemen's association, genuinely representing the interests of the horsemen in negotiations with the permitholder, is necessary to promote the stability of the industry. The purse payments from the track must be sufficient to entice the horsemen, who incur substantial expenses, to provide horses for the races. A single race meet can result in the horsemen collectively investing millions of dollars. Dr. Fisch stated that fewer horsemen will race and enter into the horse racing industry if horsemen are excluded from purse negotiations and the number of races is arbitrarily reduced. Racing and its purse payments drive the horse breeding industry, which is important to the economy of the state. Dr. Fisch testified that if the horsemen's association is not independent from the track, then the track can dictate the purse payments and racing dates without input from the horsemen, a situation contrary to the intent and purpose of coupling expanded gaming opportunities with the continued healthy operation of horse racing. Dr. Fisch testified that the FQHRA offers membership to any owner or trainer racing at Hialeah Park. The FQHRA issues membership cards stating that the member has chosen FQHRA to represent him in track negotiations and legislative endeavors. Membership can be obtained online, and is renewed automatically every year. Dr. Fisch stated that people may opt out of membership in the FQHRA and still race at the facility. The FQHRA contends that the SFQHA is a sham organization established and controlled by Hialeah as a means to effectively skirt the coupling requirement of the relevant statutes. At the hearing, it was established that the SFQHA had no members as of March 14, 2016, the date on which the SFQHA Agreement was submitted to the Division, or as of March 15, 2016, the date the racing and cardroom licenses were issued. In deposition testimony, Wesley Cox, a founding board member of the SFQHA (since resigned), testified that the SFQHA had no signed pledge cards from members as of September 20, 2016. The FQHRA asserts that, as of the dates of the SFQHA Agreement and Hialeah’s license issuance, it was the only horsemen’s association representing a majority of the owners and trainers at Hialeah, by virtue of the ongoing FQHRA Agreement. Therefore, the FQHRA was the only entity authorized to enter a valid horsemen’s agreement with Hialeah. The FQHRA points out that the Division was presented with plentiful reasons to inquire whether the SFQHA was a “captive” association created by Hialeah. Even though both Hialeah and the FQHRA had made several inquiries to the Division regarding the license renewal requirements and the recognized horsemen's association for Hialeah, the Division made no effort to establish whether the SFQHA actually represented a majority of the owners and trainers at Hialeah at the time the SFQHA Agreement was submitted on March 15, 2016. The Division’s position is that the date of Hialeah’s license issuance was the correct time to ascertain which horsemen’s association represented a majority of the owners and trainers at Hialeah Park, because no racing was occurring at that time. There were no owners or trainers at Hialeah Park as of March 15, 2016. When asked whether the Division checked for SFQHA membership cards upon receiving the SFQHA Agreement, Mr. Zachem stated that “it wouldn’t have been possible yet” because Hialeah had not “had performances since [the filing of the SFQHA Agreement] for us to be able to.” The Division reads the language of sections 551.104(10)(a)2 and 849.086(13)(d)3. in literal terms: a “binding written agreement between the applicant and the [FQHRA] or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility” must be “on file with the division” at the time the license is issued. At all times pertinent to this proceeding, there was a binding written agreement on file with the Division: the FQHRA Agreement that expired on June 30, 2016, and the SFQHA Agreement that commenced on July 1, 2016. The Division’s position is that the agreement in effect at the time the license is issued need not be the same agreement that will be in effect at the time the race meet is underway. Nothing in the statutes gainsays the Division’s position. The Division has not here acted according to an unadopted rule but pursuant to the language found on the face of the statute. No new policy has been announced, no interpretation was necessary. The only novel aspect of this licensing determination is that Hialeah has changed horsemen’s associations, an event clearly contemplated by sections 551.104(10)(a)2. and 849.086(13)(d)3. The FQHRA’s position is that Hialeah should be required to run its 2016-2017 race meet using the horsemen’s association with which it had an agreement on file with the Division at the time of the application. In other words, Hialeah has no alternative but to enter a new horsemen’s agreement with the FQHRA, using the slot machine statute’s arbitration process if necessary. See § 551.104(10)(c), Fla. Stat. Acceptance of the FQHRA’s position would make it difficult, if not impossible, for a quarter horse permitholder to ever dislodge an incumbent horsemen’s association. The statutes’ provision of alternatives--“the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility”--militates against the FQHRA’s position.3/ The Division concedes that FQHRA’s points regarding legislative intent and the need for an independent horsemen’s association may be valid as matters of policy. However, the Division argues that the statutes give it no authority to determine which is a “legitimate” and which is a “sham” or “puppet” horsemen’s association. The term “horsemen’s association” is undefined in statute. The Division’s position is that if it has on file a facially valid and binding horsemen’s agreement, the Division lacks any statutory ground not to issue the license. Both Dr. Fisch and William White, the president of the Florida Horsemen’s Benevolent and Protective Association, Inc. (“FHBPA”)(a thoroughbred horsemen’s association recognized in the slot machine statute, see § 551.104(10)(a), Fla. Stat.), repeatedly referred to the need for “legitimate” horsemen’s associations in the pari-mutuel industry. Mr. White defined a “legitimate” horsemen’s association as one that “can prove it’s the majority.” This statement led to the following colloquy with counsel for the Division, illustrating the difficulty of proving who is “legitimate”: Q. Okay. What about a situation like Dr. Fisch described, where not every member has cards? A. If you get proved as the majority, you wouldn't have to have everyone have the card. Q. How is that? A. Well, if you have 1,000 members and you have 600 cards, you're the majority. Q. Okay. But how do I know -- if you only have 600 cards, how do I know you've got 1,000 members? A. Well, in our particular case, our membership is anyone who has an owners or trainers license. Q. Sure. A. So if I have cards that are more than half of that number, then I've proven to you that we're the majority. Q. You understand we're not talking about your organization, though, right? A. Yes. Q. So talking about the quarter horse association, who, all members we've heard, do not have cards, how are we to know how many members they have? A. Well, how much time did you put into it to find out the answer to that question? Q. I think you misunderstand. You need to answer the question, not ask me questions. A. I cannot answer it because I do not know your effort that you put into it. Q. I'm asking how could we. A. Get on the phone and write some letters. Send some investigators out there, do some work. Q. To people who don't have cards? A. To get a pulse on what's going on out there. Q. Okay. And how would you suggest we get said pulse? A. It's--I'll give you the answer you guys usually give me. Q. Okay. A. It's not my job to tell you what to do. The FQHRA insists that the Division has a duty to investigate the organization and membership of a horsemen’s association prior to issuing a license based on an agreement between the association and a permitholder, and that its failure to do so in this instance constitutes a change in policy. This insistence is based on the FQHRA’s reading of In re: Petition for Declaratory Statement of Florida Horsemen’s Benevolent & Protective Association, Inc., Case No. DS 99-025 (Mar. 22, 2000), issued by the Division in response to a request by the FHBPA, which sought a declaratory statement on how the Division “determines how a horsemen’s group, such as Petitioner, is ‘the horsemen’s group representing a majority of thoroughbred race horse owners and trainers in this state’ within the meaning of Section 550.3551(6)(a), Florida Statutes.” The FQHRA asserts that the declaratory statement “declared that a new horsemen’s association seeking to represent the majority of the horsemen at a facility to replace an existing representative group must demonstrate support through the presentation of membership cards evidencing that the new group actually represents the majority of the horsemen.” However, it is clear from the language of the declaratory statement that the Division was not declaring a general intent or duty on its part to investigate a new horsemen’s association prior to issuance of a license, or stating a specific requirement that membership cards be presented as proof. Rather, the Division was placing the onus on the permitholder to ensure that the horsemen’s group represents a majority of licensees: Recognizing that the state may impose penalties against the permitholder for violations of section 550.3551, Florida Statutes, the permitholder should make every reasonable means [sic] to verify that the horsemen’s group represents the majority of licensees.[4/] It is a reasonable summation that to determine which (if more than one horsemen’s group representing thoroughbred horserace owners and trainers exist) of the horsemen’s groups represent the majority of the thoroughbred horserace owners and trainers, one must examine the membership roster of each association. Signed enrollment cards should substantiate membership rosters. The permitholder should also receive confirmation that the membership roster is comprised of licensed thoroughbred racehorse owners or trainers maintaining a “current” status in contrast to an “expired” status. The membership roster must then be compared to the total number of licensed thoroughbred racehorse owners and trainers in the state on that race day. While section 550.2614(2), Florida Statutes, may have provided a mandatory verification process for the horsemen’s association to certify that it represented a majority of the owners and trainers of thoroughbred horses in the state, the Court in Florida Horsemen Benevolent & Protective Association v. Rudder, 738 So. 2d 449 (Fla. 1st DCA 1999), ruled all of section 550.2614, Florida Statutes, unconstitutional. Nevertheless, said ruling does not prohibit the permitholder from seeking verification, independently from the statute, from the horsemen’s groups. Such verification may be accomplished by several means, one [of] which may include state verification of the number of current licensed thoroughbred racehorse owners and trainers, supplemented by an affidavit by the horsemen’s association that it represents a majority of those licensees.[5/] The Division believes that the methodology outlined above is consistent with the legislative intent that the permitholder seek approval of the majority represented for holding less than eight live races on any race day. The Division’s actions in the instant case were not inconsistent with the declaratory statement as to the nature of the horsemen’s association. In the instant case, Hialeah submitted a horsemen’s agreement that on its face appeared to be valid and binding. The Division accepted Hialeah’s implicit representation that it had used all reasonable means to verify that the SFQHA represented (or would represent, at the time the new agreement took effect) a majority of the quarter horse owners and trainers at Hialeah Park. At the hearing, the Division stated that Hialeah’s representations could not be verified until the race meet begins. If events prove that the SFQHA does not represent a majority of the owners and trainers at Hialeah Park, then Hialeah will be subject to the disciplinary measures set forth in sections 551.014(10)(b) and 849.086(14). In the declaratory statement and in the instant case, the Division was consistent in claiming no duty or authority to investigate or take action against the permitholder prior to issuance of a license. The FQHRA also contends that the Division’s allowance of amendments to Hialeah’s application after February 28 constituted an unadopted rule. The Division counters that the filing of the SFQHA Agreement on March 14, 2016, was not an amendment of Hialeah’s application. Consistent with its position that the statute requires only that an agreement must be on file with the Division at the time an application is filed, and with the fact that the application form completed by the permitholder makes no reference to a horsemen’s agreement, the Division states that the agreement itself is not a part of the application. So far as this goes, the Division’s view is consistent with the statutes, none of which impose any deadline on the filing of a new horsemen’s agreement to take effect upon the expiration of the horsemen’s agreement already on file with the Division. However, the statutes in fact contemplate two agreements between the permitholder and a horsemen’s association. First, there is the mandatory “binding written agreement” regarding distribution of purses, for which the statutes provide no filing deadline. Second, there is the permissive agreement between the permitholder and the horsemen’s association regarding a reduction in the “full schedule of live racing” as defined by section 550.002(11). If the facility intends to run the full schedule of 40 racing performances, there is no need to file this agreement.6/ However, this second agreement does have a statutory deadline: it must be “filed with the division along with [the permitholder’s] annual date application.” This agreement is, in effect, part of the application if the permitholder is seeking approval of a reduced schedule for purposes of the cardroom and slot machine licensing requirements. The Division neglected to account for this deadline in concluding that Hialeah did not amend its application after February 28. Hialeah’s initial race dates and cardroom license application, filed December 23, 2015, requested a full schedule of 40 performances. Hialeah’s amended application, dated February 26, 2016, requested 36 performances, fewer than the statutory “full schedule” of 40. As of the application amendment deadline of February 28, 2016, Hialeah had not filed an agreement with any horsemen’s association for an “alternative schedule” reducing the statutory number of performances. Hialeah made such a filing only on March 15, 2016, when it submitted the SFQHA Agreement, which purported to “authorize Hialeah to operate 36 performances during the Race Meet” and generally consent to Hialeah’s “managerial prerogative” in determining the number of racing dates. The Division’s approval of Hialeah’s reduced operating schedule could only have been premised upon the SFQHA Agreement, which was not filed “along with . . . the annual date application,” even though in this respect it was part of the application. For purposes of the cardroom and slot machine license statutes, it is immaterial when the purse agreement has been filed so long as there is a valid agreement on file at the time the license is issued. Mr. Zachem accurately stated that the Division has no way of knowing whether the SFQHA is the majority horsemen’s association at Hialeah Park until the 2016-2017 race meet commences. The Division accepted the SFQHA Agreement on the premise that the SFQHA would represent, at the time of the race meet, a majority of the quarter horse owners and trainers at Hialeah Park, and that Hialeah would be subject to discipline against its license should that not come to pass. As to the purse agreement, the Division’s actions did not constitute an unadopted rule but a straightforward application of statutory language. However, the timing of the filing of the alternative schedule agreement is decisive. The deadline for filing the racing dates application was February 28, 2016. As of that date, the Division did know which horsemen’s association represented a majority of the owners and trainers at Hialeah Park because the 2015-2016 racing meet did not conclude until the following day, February 29, 2016. As of the filing deadline, the FQHRA was indisputably the majority horsemen’s association. As of the filing deadline, the SFQHA did not exist, even on paper. As of the filing deadline, no alternative schedule agreement had been filed with the Division.7/ Therefore, the Division’s action in approving Hialeah’s operating dates and cardroom licenses constituted either a waiver of the statutory deadline of February 28 for the filing of application amendments, or a waiver of the statutory requirement that a permitholder file an alternative schedule agreement in order to receive a license to run fewer than 40 live regular wagering performances. Such a waiver would perforce be generally applicable to any similarly situated applicant. The Division’s action in this respect constitutes an unadopted rule.
The Issue Whether Respondent violated Sections 550.235(1), 550.235(2), and 550.25415(8), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Dr. Michael J. Carinda (Dr. Carinda), is a veterinarian licensed in the State of Florida. He holds pari- mutuel wagering occupational license number 0906873 1081 97, first issued by Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), in 1989. Petitioner is the agency responsible for the regulation of the horse racing industry in Florida. At all times pertinent to this proceeding, Dr. Carinda was an employee of Plante & Associates and performed his duties under the direction of Dr. Paul R. Plante, a veterinarian. At all times pertinent to this proceeding, Dr. Carinda worked as a veterinarian at the Pompano Park Harness Track (Pompano Track) in Pompano Beach, Florida, as an employee of Plante & Associates. James Gabriel is and has been a detective with the Fort Lauderdale Police Department for 17 years. During 1993, Detective Gabriel worked undercover at the Pompano Track in an investigation of race fixing allegations at the Pompano Track. While undercover, Detective Gabriel posed as a convicted felon who was the owner in fact of the horse named Yankeeroughneck. A convicted felon is not allowed to register a horse in his name; therefore, Yankeeroughneck was registered under the name of Herman Berger, who was licensed by Petitioner. Mr. Berger, one of the targets of the undercover investigation, did not know that Gabriel was an undercover detective. Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Gabriel was a part were taped recorded without the knowledge of the other participants in the conversations. At all times relevant to this proceeding, Yankeeroughneck was a standard bred horse, racing at the Pompano Track. At all times relevant to this proceeding, Dr. Plante held an occupational license issued by Petitioner and provided veterinary care to horses racing at the Pompano Track. On the morning of May 24, 1993, Detective Gabriel engaged in the following conversation with Dr. Plante and Herman Berger. Plante: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible) Berger: He came, he raced but not the way he supposed to. Plante: I'll speak with Charlie tomorrow morning. Well, the only thing to do is to try it one start. Berger: Yes. Plante: Not that expensive to do. Berger: Exactly. Plante: If the horse improves. Berger: Alright. Gabriel: How long does it take before we do something like that for (Unintelligible.) Plante: Two and a half hours before the race. * * * Plante: Ok, the same thing that we used to, when used to pass the tube, you know, but now we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringes. Put it on the back of their tongue a hundred and eighty c.c. and (Unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him show on the box. Dr. Plante, Herman Berger, and Detective Gabriel agreed to milkshake Yankeeroughneck before the horse's next race for the purpose of enhancing the horse's performance. On the morning of May 27, 1993, Dr. Plante advised Dr. Carinda that Dr. Carinda was to deliver an ionic boost to Yankeeroughneck's groom that afternoon. The ionic boost, which is also called a milkshake, consisted of approximately eight ounces of baking soda, and two to three ounces of confectioner's sugar mixed with water to the consistency of paste. Dr. Plante told Dr. Carinda that he had given instructions to the groom on May 24, 1993, on how to administer the milkshake. Yankeeroughneck was scheduled to and did race at the Pompano Track on May 27, 1993. Dr. Carinda testified that approximately two and one half hours before Yankeeroughneck was scheduled to race on May 27, 1993, he delivered a milkshake to Yankeeroughneck's groom for the purpose of having the groom administer the milkshake to Yankeeroughneck on the same day. The mixture was delivered in a ziplock bag. Detective Gabriel, Herman Berger, and Michael Metcalf, the groom, were present at the racetrack at the time Dr. Carinda delivered the milkshake. Dr. Carinda told them to administer the milkshake as close as possible to the time that horse was placed in confinement. Once a horse is placed in confinement prior to a race, nothing can be administered to the horse. When Dr. Carinda arrived at the track, Detective Gabriel, Herman Berger, and Michael Metcalf had a dose syringe ready for the milkshake. Dr. Carinda testified that he did not consider the mixture of baking soda, sugar, and water to be a drug because it was not administered intravenously. He also testified that the purpose of administering the milkshake was to alleviate the pain and fatigue associated with a horse "tying up." Tying up refers to the pain and injury caused by tearing muscles due to exertion. By relieving the pain that would be caused by tying up, the milkshake would enhance the horse's performance. After delivering the milkshake and prior to leaving the track on May 27, 1993, Dr. Carinda engaged in the following conversation with Detective Gabriel: Carinda: (Unintelligible) now boys. Gabriel: Okay. Carinda: The rest is up to you. Gabriel: I certainly appreciate it Mikey. Carinda: Now if you come home as fast as you can leave. Gabriel: You know the horse, you know the horse. About a minute after Dr. Carinda left, Michael Metcalf used a dosing syringe to force the mixture that Carinda had delivered down the throat of Yankeeroughneck. After Mr. Metcalf administered the milkshake to Yankeeroughneck, Detective Gabriel retrieved the ziplock bag and transferred it to Detective Piroth. The bag contained the residue of the milkshake. On June 10, 1993, Dr. Carinda delivered a milkshake, containing sodium bicarbonate, confectioner's sugar, and water to Yankeeroughneck's groom. After Dr. Carinda left, Charles Giamanco and Michael Metcalf used a dosing syringe to force the milkshake down Yankeeroughneck's throat. Detective Gabriel retrieved the ziplock bag with the residue of the milkshake and transferred it to Detective Reubottom. Approximately two and one-half hours after the milkshake was administered on June 10, 1993, Yankeeroughneck raced at the Pompano Track. Dr. Carinda admitted that during the 1993 season he had participated in milkshaking race horses at the Pompano Track on at least 150 occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Michael Carinda violated Section 550.235(2), Florida Statutes, as set forth in Counts II and VII of the Second Amended Administrative Complaint, suspending his occupational license for a period of two years, assessing an administrative fine of $2,000, and dismissing Counts I, III, IV, V, VI, VIII, IX, and X of the Second Amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997. COPIES FURNISHED: Madeline McGuckin Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 James G. Brown, Jr., Esquire Law Offices of Brown & Brown 2700 West Atlantic Boulevard Suite 215 Pompano Beach, Florida 33069 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
The Issue The issues for disposition in this case are whether Hamilton Downs violated section 550.01215(3), Florida Statutes (2013), by failing to operate all performances specified on its license on the date and time specified, and whether the Division should be estopped from prosecuting Hamilton Downs.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550, Florida Statutes. At all times material to the Amended Administrative Complaint, Hamilton Downs held a Quarter Horse Racing pari- mutuel permit issued by the Division, number 0000547-1000, that authorized Hamilton Downs to conduct pari-mutuel wagering on quarter horse races pursuant to chapter 550. On or about March 15, 2013, the Division issued a Permitholder Annual License & Operating Day License (the “operating license”), number 0000547-1001, to Hamilton Downs, which authorized Hamilton Downs to perform 20 regular quarter horse performances from June 18 through 22, 2014, at a rate of four performances a day. Each performance consisted of eight individual races. Thus, the operating license authorized a total of 160 races. In 2012 and 2013, Hamilton Downs conducted licensed quarter horse barrel match races at its facility. When the 2014 operating license was issued, Hamilton Downs intended to conduct a meet consisting of barrel match races. As a result of litigation that culminated several months before the commencement of the Hamilton Downs 2014 racing meet, the Division advised Hamilton Downs that it would not be able to conduct barrel match racing under its quarter horse racing operating permit. However, Hamilton Downs was permitted to conduct “flag-drop” racing during that period of time. From June 18 through 22, 2014, Hamilton Downs conducted the quarter horse “flag drop” racing meet pursuant to its operating license. Flag drop racing as performed at Hamilton Downs involved two horses racing2/ simultaneously on a crude dirt “track” approximately 110 yards in length. The track was straight for about 100 yards, with a pronounced rightward turn to the finish line, and was haphazardly lined with white stakes. The race was started by a person who waved a red cloth tied to a stick whenever it appeared that both horses were in the general vicinity of what the starter perceived to be the “starting line.” There was no starting box or gate. The track was in the middle of an open field. There was no grandstand, though there was a covered viewing area on “stilts” from which the state steward and track stewards could observe the races. The track had one betting window and tote machine in an on-site shed. The only window in the shed was, mercifully, occupied by a window-unit air conditioner. As stated by Mr. Haskell, “nothing about Hamilton Downs is real in terms of racetrack standards.” For several years prior to the 2014 meet, Hamilton Downs shared horses and riders with the racetrack in Gretna, Florida, and the North Florida Horsemen’s Association. Several weeks prior to the commencement of the Hamilton Downs 2014 meet, a schism developed between the groups. As a result, the Gretna racetrack and North Florida Horsemen’s Association prohibited its horses and riders from competing in Hamilton Downs meets. That action stripped Hamilton Downs of most of the horses and riders that it was relying upon to perform in its meet. Mr. Richards had the permitted dates, and was required to race on those dates to remain in compliance. He was able to make arrangements for horses “way down on the eligible list.” They were, for the most part, older horses of lesser quality. Nonetheless, Hamilton Downs did its best to fulfill its permitted slate of races. The pool from which the races were set included 19 horses and six riders. The horses and riders were supplied to Hamilton Downs by the Hamilton Downs Quarter Horse Association (HDQHA). The HDQHA believed it could provide enough horses to handle the meet. The horses, and their owners, were: Precious N Fritz -- Stardust Ranch, LLC Skippers Gold Tupelo -- Stardust Ranch, LLC Business Official -- Stardust Ranch, LLC Cutter With A Twist -- Stardust Ranch, LLC Dun It Precious Gal -- Stardust Ranch, LLC Heavens Trick -- Stardust Ranch, LLC Dancer Blue Ghost -- Amie Peacock Starpion N Skip -- Amie Peacock Twist N to Stardust -- Amie Peacock Docs Lil Jose -- Amie Peacock Dandees Bay Apache -- Amie Peacock Kings Hollywood Moon -- Amie Peacock Lassies Last Chance -- Elaine Tyre Sugars Daisy Bar -- Elaine Tyre Touch of Leaguer -- Elaine Tyre Joys Winning Touch -- Elaine Tyre Jazz Potential -- Emma McGee Sonney Dees Diamond -- Emma McGee Royal King Princess -- Richard McCoy The riders were: Amie Peacock Elaine Tyre Emma McGee Richard McCoy Nicholas McCoy Christine Bradley Each of the owners was licensed by the Division. The riders were mainly local riders. The breeds of the horses complied with state law regarding horses allowed to run in quarter horse races.3/ The horses had their ownership records and identifying tattoos, and their current Coggins forms, which are required to substantiate that they have tested negative for diseases. Mr. Stallings testified that there were no problems regarding the ages of the horses since “that is not something DBPR worries about.” The animal detention areas checked out and were secure. Mr. Taylor inspected the track and found no violations of track setup under the current rules. The horses and riders had access to the track for the three days prior to the meet for purposes of training and acclimating the horses to the track. The races at Hamilton Downs during June 2014 were conducted in the presence of a state steward. The races must be seen to be believed. The 14 events for which video evidence was received show a series of races involving -- as a rule -- tired, reluctant, skittish, or disinterested horses moving at a slow pace down the dust-choked path. There was no marked starting line or finish line. The horses were often yards apart when the red rag-on-a-stick was waved. With one exception (performance 2, race 7), the gait of the “racing” horses ranged between a slow walk and a canter. Horses often simply stood at the starting line before slowly plodding down the track. In one instance, a horse actually backed up, until a bystander took it by the lead, thereafter giving the horse a congratulatory slap on the rump when it began to move in a forward direction. Mr. Haskell noted races in which riders fell off of their horses, or in which a horse left the course. He described numerous races, aptly, as non- competitive because one or both of the entrants walked, including one race (day 3, card 3, race 5) in which the racing steed took 1 minute and 45 seconds to cover the 110-yard course. The overall quality of the videotaped races was about what one would expect of an entry-level campers’ horse show held at the conclusion of a two-week YMCA summer camp. The interest in the series of races by the betting public was commensurate with the quality of the races. Wagers were of the $2.00 variety. Over the course of the 160-race meet, a total of 10 bets were placed, with two of those reportedly placed by a representative of a competing facility in an effort to substantiate wrongdoing on the part of Hamilton Downs. Given the competitive level of the races, a $20 handle seems about right. Mr. Haskell testified that the same horses just kept racing over and over. However, his steward’s report noted that he “refer[ed] to the ‘rule book’ numerous times in the five days pertaining to ages of horses, number of races a horse may race in a limited time, etc., but the rules just didn’t exist.” Mr. Taylor expressed similar concerns with the failure of the horses to “break” at the start of the races, their slow pace, and other issues. He did not make a point of them or bring them to the attention of Hamilton Downs because there was “no rule violation.” Despite the bemused, occasionally embarrassed expressions on the faces of the riders as their horses ambled slowly down the track, the witnesses, including Mr. Haskell and Mr. Taylor, uniformly testified that the riders tried to make sure the races were competitive. Thus, the poor quality of the races cannot be attributed to a lack of effort on their part. “Coupled entries” are those in which horses owned by the same owner compete against one another in the same race. On the second race of the meet, it was discovered that the two horses scheduled to race were both owned by Amie Peacock. Although the racing program had been distributed to all race officials involved, including the state steward, no one noticed the coupled entry. The preponderance of the evidence indicates that the coupled entry was discovered immediately before the start of the race. The racing secretary attempted to alert the starter, but was unsuccessful. Therefore, the race was run.4/ When the coupled entry was discovered, and before the race was made official, a post-race meeting of roughly 30 minutes was held to determine how to proceed. A preponderance of the evidence indicates that the meeting participants included, among others, the state steward, the track stewards, the state investigative specialist, the racing secretary, and the track owner. During the meeting, Mr. Richards offered that the race could be “re-run,” an option that was rejected since there is no authority for re-running a race. Mr. Richards also proposed calling a “no-contest,” which would allow Hamilton Downs to request an additional race from the Division. An additional race is not a re-run of the disputed race, but is a replacement race to be conducted at a different time during the meet. Mr. Richards was familiar with the procedure for requesting an additional replacement race, and was fully prepared to do so. It is not uncommon for such requests to be made in all types of pari-mutuel activities. Mr. Haskell acknowledged the possibility of declaring a no-contest for the coupled entry, and agreed that if he had declared a no-contest, Hamilton Downs could have requested a “make-up date” to be approved by the Division. At the conclusion of the meeting, Mr. Haskell did not declare a no-contest. Rather, he decided to make the race “official.” As a result, Hamilton Downs could not request a make-up race. Mr. Taylor discussed the incident with management of Hamilton Downs, and promised to keep an eye out to make sure a coupled entry did not recur. After the second race of the meet, there were no further instances of coupled entries. Over the course of the meet, Mr. Haskell declared all of the 160 races, including the coupled entry race, to be official, whereupon the winner of the race was determined and results were entered by an Amtote employee into the computer and transmitted to the “hub.” At that point, wagers (if any) were paid out, and the tote was allowed to roll over to the next race. During the June 2014 races at Hamilton Downs, a purse, stake, or reward was offered for the owner of each horse to cross the finish line first. Mr. Richards was frank in his admission that the 2014 race season was important because it allowed Hamilton Downs to qualify for a cardroom license and, if ultimately allowed, slot machines. However, the reason for conducting the meet is of no consequence to the outcome of this proceeding. Hamilton Downs has, subsequent to the 2014 meet, conducted flag drop races at its facility pursuant to operating permits issued by the Division. Within the past five years, the Division has never filed an administrative complaint, suspended a pari-mutuel permitholder, or fined a pari-mutuel permitholder due to a failure to conduct a race at any particular speed. Within the past five years, the Division has never suspended a pari-mutuel permitholder for a violation of section 550.01215 that pertained to a race or races that were made official by a state steward.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of May, 2016.
The Issue This case has been bifurcated (as described more fully below). The issues in the present portion of this case are as follows: Whether Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division"), engaged in undue or unreasonable delay in processing Petitioner, Ft. Myers Real Estate Holdings, LLC's ("Ft. Myers"), application for a quarter horse racing permit. Whether the Division repeatedly denied Ft. Myers' application for a quarter horse racing permit. Whether the Division denied Ft. Myers' petitions for hearing for the purpose of ensuring application of the new law, effective July 1, 2010, that made quarter horse racing permit applications subject to the limitations contained in section 550.554, Florida Statutes (2010).1/
Findings Of Fact Ft. Myers is a Florida limited liability company established for the purpose of obtaining a permit to own and operate a quarter horse racing facility in the State of Florida. It is further the intent of Ft. Myers to operate as a pari-mutuel wagering facility in any fashion allowed by law. The Division is the state agency responsible for reviewing and approving applications for pari-mutuel wagering permits, including quarter horse racing facility permits. In January 2009, Ft. Myers filed an application (the "Application") seeking a permit to build and operate a quarter horse racing facility in Lee County, Florida. The Application was properly filed with the Division. On February, 13, 2009, the Division issued a deficiency letter setting forth several perceived problems with the Application. Ft. Myers submitted a response to the deficiency letter on February 18, 2009. In the response, Ft. Myers addressed each of the deficiencies. As far as can be determined, the Application was deemed complete by the Division sometime after February 18, 2009. However, Ft. Myers, thereafter, contacted the Division and asked that further action on the Application be delayed. The basis for that request was that there were some "hostile bills" against quarter horse racing filed with the Legislature, and there were some pending issues concerning a compact with the Seminole Tribe of Florida. Ft. Myers acknowledges that it requested delays in the review of the Application based upon business reasons. In conjunction with amendments relating to the Indian Gaming Compact, on May 8, 2009, the Legislature enacted Chapter 2009-170, Laws of Florida (also commonly referred to as SB 788), which authorized slot machine gaming for pari-mutuel permit holders located in Miami-Dade County. Chapter 2009-170 was filed with the Secretary of State and approved by the Governor on June 15, 2009, and states in pertinent part: Section 14. Section 550.334, Florida Statutes is amended to read: 550.334 Quarter horse racing; substitutions (2) All other provisions of this chapter, including s. 550.054, apply to, govern, and control such racing, and the same must be conducted in compliance therewith. * * * Section 19. Subsections (4) and (7) of section 551.102, Florida Statutes, are amended to read: 551.102 Definitions.—As used in this chapter, the term: (4) "Eligible facility" means any licensed pari-mutuel facility located in Miami-Dade County or Broward County . . .; any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; . . . * * * Section 26. Sections 1 through 3 of this act and this section shall take effect upon becoming law. Sections 4 through 25 shall take effect only if the Governor and an authorized representative of the Seminole Tribe of Florida execute an Indian Gaming Compact pursuant to the Indian Gaming Regulatory Act of 1988 and requirements of this act, only if the compact is ratified by the Legislature, and only if the compact is approved or deemed approved, and not voided pursuant to the terms of this act, by the Department of the Interior, and such sections take effect on the date that the approved compact is published in the Federal Register. Section 14 of the legislation essentially applied a provision to quarter horse racing facilities that already applied to other pari-mutuel facilities, i.e., no new facility could be approved for a location within 100 miles of an existing pari-mutuel facility. The effective date of this legislation, as evidenced in section 26, was conditioned on the execution and approval of a gaming compact between the State of Florida and the Seminole Tribe of Florida. The compacts were subsequently executed by the Governor and the Seminole Tribe of Florida on August 28, 2009, and August 31, 2009, however, they were not ratified by the Legislature, and, thus, they were specifically rendered void as was the remainder of Chapter 2009-170.2/ In consideration of SB 788 and certain business negotiations with another permit holder in Lee County, Ft. Myers amended the Application by changing the location of the project to Florida City, Dade County, Florida. In an amended permit application dated July 27, 2009, and filed with the Division on August 12, 2009, Ft. Myers made the following changes to its initial proposal: Changes were made to the ownership interest of the project; A revised business plan, revised financial projections for year one of operations, and a revised internal organizational chart were included; The proposed site plan was amended to reflect the move to Florida City; and A new construction time line was submitted. Meanwhile, several other entities submitted applications seeking to construct and operate quarter horse racing facilities in different venues around the state. Quarter horse permits were then issued to ELH Jefferson, LLC ("ELH Jefferson"); Gretna Racing, LLC; Debary Real Estate Holdings, LLC ("Debary"); and South Marion Real Estate Holdings, LLC, between November 2008 and May 2009. Those approvals were given, in part, based on written assurances from land use attorneys that zoning and other land use approvals (necessary elements for permit approval) could be obtained after permit issuance. After the Division began issuing quarter horse racing permits, however, the Division started to realize that it may not have been requiring a sufficient showing from applicants to meet the statutory criteria for issuance of a permit under section 550.334, Florida Statutes (2008). Notably, although nine quarter horse permits were issued from September 2008 until February 2010, no quarter horse racing permit holder, without an existing facility at the time of permit issuance, had actually utilized a permit to conduct quarter horse racing. Further, both ELH Jefferson and Debary failed to obtain necessary land use approvals after permit issuance, notwithstanding land use attorney opinions that they were obtainable. The Division then began to consider around August 2009, whether it needed more evidence that the land was available for use than opinions from land use attorneys. The Division's re-appraisal began in the course of reviewing the Miami-Dade Airport's application for a quarter horse permit, which asserted that the entire airport property was available for use as a quarter horse facility. The issues associated with the Miami-Dade Airport application, along with the Division's experience that despite assurances, some permit applicants had been unable to obtain land use approvals, caused the Division to determine that it needed more evidence that the land was, in fact, available for use to ensure the statutory requirements for permit issuance were met. At about the same time the Division was re-appraising its method of reviewing permit applications, Ft. Myers decided to change the location of its proposed quarter horse facility from Lee County to Dade County, Florida. In response to the change, the Division sent Ft. Myers a deficiency letter concerning the Dade County site dated September 11, 2009. That letter set out the following pertinent deficiency items: Deficiency #1 That the location(s) where the permit will be used be "available for use." That because previous quarter horse applications have provided opinion letters from land use experts, and those sites have later proven not be to usable for the quarter horse facility, more specific information was required, i.e., The qualifications of the applicant's zoning attorney; A written statement of the attorney's grounds forming his opinion; and A copy of any application for rezoning filed with the City of Florida City, including an update from the City on the status of the application. Deficiency #2 That the location(s) where the permit will be used be "available for use." That the Letter of Intent provided by Ft. Myers is insufficient and that documentation reflecting its control over the property is required, i.e., a purchase agreement. The Division also asks for information regarding Ft. Myers' relationship with the registered owner of the site in question. Deficiency #4 That reasonable supporting evidence be provided that "substantial construction will be started within 1 year" after issuance of the permit. On November 11, 2009, Ft. Myers responded to the Dade County deficiency letter. In its response, Ft. Myers provided the Division the following information: Information about its land use attorney, Jerry B. Proctor, from the law firm Bilzin Sumberg. A letter dated September 18, 2009, from Henry Iier, City Planner for the City of Dade City. The letter indicates that the City has zoning jurisdiction over the subject property and that it allows applications for zoning changes. Tier also states that the timetable for rezoning appears reasonable. An Agreement for Purchase and Sale between Ft. Myers and an entity called Florida City 70 Acres, LLC. The agreement includes a contingency provision requiring implementation of certain provision of SB 788 passed by the 2009 Legislature. Fulfillment of those provisions was a condition precedent to Ft. Myers' commitment to purchase the property. The Division considered Ft. Myers' response to mean that it had made a decision not to provide information about its zoning request status. Had Ft. Myers submitted that information or requested additional time to gather the information, the Application would not have been denied on that basis. The Division found the contingency in the Purchase and Sale Agreement to be a significant impediment to commencement of construction within one year. In fact, the agreement was also contingent on the approval of provisions of SB 788 that may not ever be approved. As such, the agreement failed to meet the requirements for approval. Sometime during the month of December 2009, personnel from the Division contacted another quarter horse permit applicant, North Florida Racing, concerning its pending application. The Division employee advised North Florida Racing that there had been a change in "policy" at the Division concerning one aspect of the application review. Specifically, North Florida Racing was advised that their selected site would have to be proven to be "land available for use" as a quarter horse facility. They were told that the old standard of having a local zoning lawyer's opinion letter would not suffice. Rather, the applicant must show that an application for rezoning had actually been filed. It is not clear from the evidence whether North Florida Racing contacted the Division or whether the Division initiated that contact. Other than the statements in the deficiency letter, Ft. Myers was not directly contacted by anyone from the Division concerning this change in policy. On January 12, 2010, the Division issued a letter denying Ft. Myers' application for a quarter horse permit in Miami-Dade County, Florida. The denial letter provided two bases for the Division's decision: One, that the Application failed to demonstrate that the land is available for use (under its new policy); and two, that the Application failed to provide reasonable supporting evidence that substantial construction of the facility would be commenced within one year of issuance of the permit. The denial letter contained a statement concerning the process for requesting an administrative hearing on the matter. It is the position of Ft. Myers that the Division imposed unauthorized requirements on Ft. Myers' application so that it could use the new law in effect, that the Division imposed non-rule policy on Ft. Myers to delay processing of the application, and that the Division unreasonably and improperly delayed Ft. Myers' application to take advantage of the change in the law. The following Findings of Fact (22 through 45) were proffered by Ft. Myers in the furtherance of their position. Hartman and Tyner, d/b/a Mardi Gras Casino ("Hartman and Tyner"), Calder Casino and Race Course ("Calder"), and the Flagler Magic City Casino ("Flagler") are part of a coalition of South Florida pari-mutuel permitholders (collectively referred to as the "South Florida permitholders") that opposed the expansion of quarter horse racing into Miami-Dade County. Jim Greer, then chairman of the Republican Party of Florida, was a contract lobbyist for Hartman and Tyner. In May of 2008, Greer entered into a two-year contract with Hartman and Tyner that paid him $7,500 per month as a lobbyist. Charles "Chuck" Drago was the secretary of the Department of Business and Professional Regulation (the "Department"). Drago was a close friend of Greer. Drago had been the chief of police of Oveido where Mr. Greer had lived and served on the City Commission. Greer and Drago had been fundraisers for Governor Crist. Scott Ross was hired by the Department as a deputy director in April 2009. Ross was hired with assistance from Delmar Johnson, Ross' college friend, who held the position of executive director of the Republican Party of Florida. Johnson worked for Greer. Ross' responsibility included oversight of the Division. David "Dave" Roberts was the director of the Division for approximately eight years. Roberts was division director when a number of quarter horse permit applications were filed with the Division after the 2007 changes in the card room law, which allowed quarter horse racing facilities to have card games. Roberts caused the Division to develop guidelines to govern the review of the quarter horse applications. After Roberts was forced to resign, the Division modified the guidelines to require applicants to show that zoning was in place for racing before the permit was issued. Milton "Milt" Champion was named director of the Division, effective January 4, 2010. He signed the denial of Ft. Myers' quarter horse permits on January 12, 2010, after he had been on the job for eight days. Joseph Helton is an attorney employed by the Division and has served as chief legal counsel to the Division since 2002. Helton has worked as an attorney for the Division for a combined 13 to 14 years. Helton was identified by the Division as its agency representative in this proceeding. Earnest James "Jim" Barnes is employed by the Division as an Investigative Specialist II. Barnes' duties with the Division include the evaluation of applications for quarter horse permits. Barnes was involved in the processing of all quarter horse permit applications. While he was director of the Division, Roberts made all of the decisions on whether to grant or deny a pari-mutuel permit. Neither the secretary, nor the deputy secretary made any decisions on quarter horse applications during Roberts' tenure as director of the Division. Roberts testified that the Division developed guidelines in 2007 to aid in the review of all quarter horse applications after the first of several new applications for quarter horse permits were filed. Roberts explained that the Division had no rules implementing the statutory criteria in 2007, because there had not been any quarter horse applications filed with the Division for a long time. The guidelines for review of quarter horse applications developed under Roberts did not require the applicant to demonstrate that the property was zoned for a racetrack before the permit was issued. The Division interpreted the statutory "location is available for use" criterion to mean that racetrack zoning was "possible to obtain." Roberts noted that another pari-mutuel statute, section 550.055(2), specifically required the applicant for permit relocation to demonstrate that the location is zoned for racing before the Division issued a permit. In contrast, section 550.334 does not specifically require the applicant to demonstrate that racetrack zoning is in place. During Roberts' directorship, the Division would accept a letter from a land use attorney familiar with zoning in the area where the racetrack would be located describing the process by which proper zoning could be obtained as adequate evidence that zoning was obtainable. Consistent with this guideline, deficiency letters issued by the Division under Roberts requested applicants to provide an opinion from an attorney and from a local government official stating that proper zoning for the proposed location was "obtainable." That standard was specifically altered in the September 11, 2009, deficiency letter for Ft. Myers' Dade County proposal. The guidelines for review of quarter horse applications developed under Roberts did not require the applicant to own the land at the time the permit was issued. Rather, the applicant was required to give reasonable assurances that the property was under the control of the applicant by written agreement. The applicant typically satisfied this guideline by submitting a contract for purchase or a lease with the application. Some contracts might include a contingency or condition precedent. For example, the real estate contract in the Gretna Racing, LLC, application listed a number of contingencies that must be met. Roberts received numerous complaints from existing pari-mutuel permitholders (including, in particular, representatives of Hartman and Tyner) about the manner in which the Division was granting quarter horse permits. Ross also made it known to Roberts that he was not in favor of granting quarter horse permits. Roberts, however, believed that he was required to do what the letter of the statute dictated. According to Hartman and Tyner's attorney, John Lockwood, the "special interests" wanted Roberts terminated, because they were concerned with the quarter horse application review process. Lockwood testified that he heard complaints that Roberts gave out quarter horse permits "like candy." Lockwood made his client's concerns about Roberts' interpretation of the quarter horse statute known to Ross. Later, Jim Greer, then a contract lobbyist for Hartman and Tyner, called Ross and asked him to fire Mr. Roberts. Ross met with Roberts and gave him the option of termination or resignation on July 16, 2009, within one week after Mr. Greer asked him to terminate Roberts. Roberts was not given a reason for his termination. Joe Dillmore became the interim director of the Division after Roberts was forced to resign. However, according to Dillmore, Ross was, in fact, the person in charge of all quarter horse permit applications after Roberts left. Ross told Dillmore that he wanted to be informed on decisions at every level of the quarter horse application process. Ross made it known to Dillmore that he believed the 100-mile restriction placed on other pari-mutuel permitholders should also be applied to quarter horse permit applications, even though the quarter horse statute did not impose a location restriction at that time. Ross opposed quarter horse racing because of the Governor's opposition to gambling in general. According to Barnes, Ross wanted to be kept apprised of all action on pending quarter horse permits, including deficiency letters, and any recommendation for approval or denial. Previously, Barnes had never been required to report his daily activities to a deputy secretary. Barnes was assigned to process the Application in October 2009, after the location changed from Lee County to Miami-Dade County. Barnes prepared the deficiency letter issued to Ft. Myers on September 11, 2009. On August 11, 2009, approximately three weeks after Roberts was forced to resign, there was a meeting held at the Calder Race Track in Miami between existing pari-mutuel permitholders and key agency personnel. The attendees of this meeting included representatives of Hartman and Tyner, Calder, and Flagler, the three loudest voices in opposition to the expansion of quarter horse gaming into Miami-Dade County. The agency was represented at the Calder meeting by Secretary Drago, Deputy Secretary Ross, and Mr. Helton. One topic of the Calder meeting was the competitive impact of new quarter horse permits on existing permitholders. In particular, the South Florida permitholders made it very clear at this meeting that they opposed the issuance of any quarter horse permits in Miami-Dade County. The existing pari-mutuel permitholders at the Calder meeting told the Division representatives that the Division should require quarter horse applicants to demonstrate that the proposed location for the permit was zoned for a racetrack before the permit was issued. This interpretation had been advanced in legal challenges filed by existing permitholders (including Hartman and Tyner) before the Calder meeting. However, these legal challenges failed to achieve the desired result before the Calder meeting. On August 12, 2009, the day after the Calder meeting, Ft. Myers amended the Application ("Amended Application") for a quarter horse permit to change the location to Miami-Dade County. Lockwood found out about the Amended Application within days and called Barnes to express his client's extreme displeasure with this change in location. Barnes sent an email to Helton on August 19, 2009, relaying the call from Lockwood stating "don't know what that means in the long run." There was a meeting held in Tallahassee within days of this email between attorneys for the South Florida permitholders (including Lockwood) and attorneys for the Division (including Helton), so the permitholders could express their concerns with the quarter horse review process with Division counsel in person. The Application Review It was the Division's normal practice to provide applicants with deficiency letters so that applicants could be fully aware of any shortcomings and be given an opportunity to correct the deficiencies. It was not uncommon for the Division to issue two or more deficiency letters to an applicant. In the present case, Ft. Myers received a deficiency letter relating to its Lee County site, then received another one when the site was changed to Miami-Dade County. After Ft. Myers responded to the deficiency letter for Miami-Dade County, it reasonably relied upon the issuance of a further deficiency letter if there were remaining deficiencies. Although no additional letter was required, Ft. Myers believed one would be issued if there were further deficiencies. The Division did not issue a second deficiency letter for the Miami-Dade County site. The Division's rationale was that the first letter was clear and unambiguous, and if Ft. Myers did not respond appropriately, then the deficiencies must not be correctable. No one from the Division contacted Ft. Myers' representatives to discuss the continuing deficiencies. Two other quarter horse permit applications were pending at the same time the Application was under review at the agency: Hamilton Downs II and North Florida Racing. Hamilton Downs received its permit on February 4, 2010; North Florida Racing received its permit on March 26, 2010. Counsel for North Florida Racing remembers being told by Mr. Helton at the Division about changes to the Division's interpretation about the need for zoning approval. Counsel sent an email which says in part: "The powers that be seem to be shifting their interpretation of the statutes and rules to require that zoning for the track must be in place before a QH permit can be issued." Thereafter, North Florida Racing changed locations to a location zoned for quarter horse racing, and its permit was ultimately issued. It is unclear from the record whether Helton actually made the quoted statement, and, if so, in what context it was made. Helton could not remember the statement, but does not deny that it could have been made. As to the Hamilton Downs II location, neither of the two deficiency letters issued in that filing stated that the property had to be zoned for quarter horse racing. On November 4, 2009, Hamilton Downs provided the Division with a letter from the Town Council of Jennings stating it would support a zoning change at the proposed site to allow for quarter horse racing and that the zoning could be accomplished within six months. Thereafter, on December 14, 2009, Hamilton Downs submitted a letter from Hamilton County, Florida, stating the proposed site is, in fact, presently zoned for quarter horse racing. There is no credible evidence as to what precipitated Hamilton Downs' sending the Division that letter. The Administrative Hearing Petitions After receiving the denial letter from the Division, Ft. Myers prepared a Petition for Formal Administrative Hearing which it filed on January 29, 2010. On February 16, 2010, the Division rejected the Petition on the basis that it failed to identify disputed issues of material fact. Ft. Myers was given leave to amend its Petition within 21 days, i.e., on or before March 8, 2010. Ft. Myers filed its Amended Petition for Formal Administrative Hearing on March 8, 2010. The amended Petition was also rejected by the Division, this time on the basis that Ft. Myers did not have standing. The rational for that decision was that inasmuch as the SB 788 provisions could not come into effect and those provisions were a condition precedent to Ft. Myers' purchase agreement for property, Ft. Myers could not move forward on their Application and, thus, did not have standing in an administrative challenge. The rejection of Ft. Myers' Amended Petition was appealed to the First District Court of Appeal. In an opinion dated February 7, 2011, that court summarily reversed the Division's rejection of the Amended Petition. The Court remanded the case to the Division with directions to refer the case to the Division of Administrative Hearings. During the pendency of the appeal to the First District Court of Appeal, Chapter 2010-29 was passed and became law, effective July 1, 2010. The new law contained the 100-mile restriction mentioned above. There is not any location in Florida that would qualify for a new pari-mutuel facility under that limitation. If the original Petition filed on January 29, 2010, had been accepted by the Division, it is possible a final order could have been entered sometime between June 17 and July 26, 2010, had the case proceeded at a normal pace. Thus, it is possible the final order could have been entered prior to the new 100-mile limitation taking effect on July 1, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, declaring that the 2010 version of section 550.334, applies to the Application filed by Petitioner, Ft. Myers Real Estate Holdings, LLC, for a quarter horse racing permit. IT IS THE UNDERSTANDING OF THE UNDERSIGNED AND ALL PARTIES THAT THIS RECOMMENDED ORDER WILL UNDERGO EXPEDITED AGENCY REVIEW SO THAT A FINAL ORDER AS TO THIS PORTION OF THE BIFURCATED PROCEEDING WILL BE RESOLVED AS QUICKLY AS PRACTICABLE. DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2011.
The Issue The issues in this case are whether Respondent, Frank D. Inserra, violated Section 550.105(7), Florida Statutes (2007), as alleged in Count I of an Amended Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 15, 2007, and, if so, what disciplinary action should be taken against his Florida pari-mutuel wagering occupational license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Chapter 550, Florida Statutes. Respondent, Frank D. Inserra, is, and was at the times material to this matter, the holder of a pari-mutuel occupational license, number 115731-1021, issued by the Division. On or about June 14, 2005, a Complaint was filed by Kenneth Posco against Mr. Inserra in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida (hereinafter referred to as the “Posco Complaint”). In relevant part, the Posco Complaint alleged the following: This is an action for damages in excess of $15,000.00, exclusive of interest and costs. At all times material hereto, Posco was and is an individual residing in Fitchburg, Massachusetts. At all times material hereto, Inserra was and is an individual residing in Broward County and is otherwise sui juris. . . . . On or about November 11, 2004, after a negotiated agreement for the purchase of certain thoroughbred racehorses was not honored by Inserra, Posco and Inserra entered into and [sic] agreement for the repayment of the funds previously forwarded by Posco to Inserra for such purchase (the ”Contract”). . . . Pursuant to the Contract, Inserra was to make certain periodic payments, in order to make full payment of the agreed upon sum of $40,186.00. Inserra has failed to make any of the periodic or final payments described in the Contract. . . . . The Contract referred to in the Posco Complaint is a settlement agreement entered into between Mr. Inserra and Mr. Posco to resolve Mr. Inserra’s failure to abide by the terms of an oral contract whereby Mr. Inserra agreed to sell four thoroughbred horses to Mr. Posco which were to be used by Mr. Posco in pari-mutuel racing. The Contract was entered into by Mr. Inserra and Mr. Posco on or about November 11, 2004. Pursuant to the Contract referred to in the Posco Complaint Mr. Inserra acknowledged, in part, the following: WHEREAS, Inserra, Seller, and Posco, as Purchaser, entered into an oral agreement for the purchase of certain horses (hereinafter “Agreement”) in which Inserra agreed to furnish four (4) total horses together with all required paperwork, in exchange for $36,750.00, prepaid by Posco; and WHEREAS, a dispute has arisen concerning the performance of Inserra under the Agreement; and WHEREAS, Inserra produced Stormin Hillbilly without the required papers (Jockey Club Registration) to allow Posco to race the horse, as anticipated by the Agreement, thus Posco has paid $3,436.00 for training fees, which he now seeks to be reimbursed as the horse has never been able to race; and WHEREAS, Inserra failed to produce any of the remaining three horses; and WHEREAS, Inserra and Posco are desirous of resolving all disputes and controversies regarding the proposed sale. NOW, THEREFORE inconsideration of the mutual covenants hereinafter set forth and other valuable consideration, the parties hereby agree as follows: Inserra shall, within [30] days, pay to Posco $16,000.00. Inserra will then, within [90] days pay to Posco $10,250.00. Inserra will then, within [120] days pay to Posco $13,936.00. . . . . When Mr. Inserra failed to live up to the terms of the settlement agreement, Mr. Posco filed the Posco Complaint. On or about January 6, 2006, Mr. Posco filed Plaintiff, Keneth [sic] Posco’s Motion for Summary Judgment. On February 8, 2006, the Motion was granted and a Judgment was entered in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, against Mr. Inserra (hereinafter referred to as the “Judgment”). Mr. Inserra was ordered to pay Kenneth Posco $42,075.78. The Judgment was issued as a direct consequence of Mr. Inserra’s breach of the contract he entered into with Mr. Posco for the sale and purchase of thoroughbred racehorses in Florida, a contract which related directly to the sport of racing in pari-mutuel facilities in Florida. On June 18, 2007, the Judges/Stewards at Calder Race Course issued the following written ruling (Calder Order) against Mr. Inserra as a result of the Judgment: Judgment issued by the 17th Judicial Circuit Court in and for Broward County, Florida, on February 8th, 2006, orders Frank D. Inserra to Pay [sic] Kenneth Posco $42,075.78 plus attorney fees. This judgment has not been satisfied. Owner Frank D. Inserra, having been afforded a formal hearing before the Board of Stewards at Calder Race Course on Monday, June 18th, 2007, is suspended sixty days or until such time as the judgment is satisfied or vacated by the court. Suspension will commence on Thursday, June 21, and continue through and including Monday, August 20th, 2007. Denied access, use, and privileges of all grounds under the jurisdiction of the Florida Division of Pari-Mutuel Wagering requiring a license for admission during the term of suspension. The Calder Order was affirmed in a Final Order of the Division entered on or about August 24, 2007. As of the date of the final hearing of this matter, the obligation imposed on Mr. Inserra by the Judgment, which arose out of a transaction relating directly to the sport of racing being conducted at pari-mutuel facilities within Florida, remained unpaid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering: Dismissing Count II of the Amended Administrative Complaint; Finding that Respondent is guilty of the violation alleged in Count I of the Amended Administrative Complaint; and Suspending Mr. Inserra’s pari-mutuel wagering occupational license for a period of not less than ten days and continuing until Mr. Inserra provides satisfactory proof that he has satisfied his outstanding financial obligation to Kenneth Posco as ordered in the Judgment. DONE AND ENTERED this 9th day of April, 2008, in Tallahassee, Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 April, 2008. COPIES FURNISHED: Charles T. “Chip” Collette Assistant General Counsel Office of the General Counsel Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Frank D. Inserra 2649 Sable Palm Drive Miramar, Florida 33023 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792