The Issue The issue in this proceeding is whether the Petitioner meets the qualifications for licensure as assistant general manager at Seminole Greyhound Park. The Respondent contends that Petitioner does not meet these qualifications because while serving in the past as general manager at Seminole Greyhound Park, Petitioner violated the Respondent's rules by consorting with a convicted bookmaker, by allowing an unapproved veterinarian to serve as the approved track veterinarian, by conducting an excessive number of "T" races, by failing to comply with requirements for disbursement of funds to the Board of Regents, and by placing illegal wagers on National Football League games. Petitioner denies these allegations.
Findings Of Fact The Division of Pari-Mutuel Wagering is responsible for administering provisions of Florida Statutes relating to operation of dog racing establishments. Chapter 550, Florida Statutes. Respondent is specifically charged with responsibility for issuing or denying licenses to all persons connected with dog racing establishments for each specified job. Section 550.10, Florida Statutes. The Petitioner has been licensed in various capacities in the pari- mutuel industry in Florida since approximately 1956. He has served at greyhound racing facilities as a mutuel clerk, in the "money room," as racing secretary, racing judge, and most recently, as a track manager. In October, 1980, Petitioner entered into a five-year employment contract with Seminole Greyhound Park, Inc., to serve as its general manager. Petitioner served in that capacity during the time that the track was physically converted from a harness racing track to a dog racing track. He also served in that capacity during the first greyhound racing season at Seminole Greyhound Park, which began on May 4, 1981, and continued until August 30, 1981. Petitioner was issued a three-year license by the Respondent to serve as general manager commencing in 1981. He nonetheless would need to be certified by Respondent to serve for the 1982 racing season. The owners of Seminole Park desire to continue to employ the Petitioner as general manager. The owners were advised by the Respondent's personnel, however, that Petitioner would not be approved for licensure as general manager at the park for the 1982 season. No formal application to employ Petitioner in that capacity was submitted to the Respondent. Instead, in an effort to accommodate the Petitioner's employment contract, and the desires of the Respondent's personnel, the Seminole Greyhound Park owners sought to employ the Petitioner as assistant manager for the 1982 season, at the same salary and with the same benefits as had been specified in Petitioner's employment contract. Accordingly, Petitioner submitted an application to the Respondent for licensure as assistant manager at Seminole Greyhound Park. The Respondent denied the application by letter dated May 10, 1982. This proceeding ensued. As general manager at Seminole Greyhound Park, Petitioner was basically responsible for the day-to-day operation of the park. Prior to 1981, the park had been operated as a harness racing facility. The park was being converted into a greyhound racing establishment. Petitioner played a significant role in the conversion. He shared managerial responsibilities with John Fountain, an individual who was employed by the owners of Seminole Greyhound Park as special projects manager. Petitioner also shared responsibilities with Paul Dervaes, the President of Seminole Greyhound Park, who also owned an interest in the park; and with Bill Demetree, one of the primary owners of the park. During the conversion period, Petitioner was basically responsible for organizing the track, setting up concessions, booking kennels and the like. When the track opened in early May, 1981, Petitioner continued to share managerial responsibilities with Bill Demetree and Paul Dervaes. Dervaes resigned as president of Seminole Greyhound Park in late May, and through the remainder of the racing season, Petitioner shared managerial responsibilities primarily with Bill Demetree. Operational employees at Seminole Greyhound Park, including the racing secretary, and persons in charge of security, concessions, and publicity answered directly to the Petitioner. John Fountain is an individual who was convicted of a violation of federal bookmaking laws. Fountain's civil rights were restored to him in Florida through a "Certificate of Restoration of Civil Rights" issued by the State Office of Executive Clemency on May 14, 1980. Fountain was primarily responsible for interesting Bill and Jack Demetree, two brothers who are involved in various business enterprises, in purchasing the facilities at Seminole Park and transforming it from a harness racing to a dog racing facility. The Demetrees had known Fountain for many years in both personal and business capacities. Fountain had an interest in ultimately participating in the operation of the track. Under statutes then in effect, persons who had been convicted of bookmaking crimes were forever barred from participating in the management of pari-mutuel facilities. The Demetrees participated in lobbying a bill through the Legislature which would allow for approval by the Respondent of persons who had in the past been convicted of bookmaking crimes to be licensed in the pari-mutuel industry. The lobbying effort was successful. Fountain did apply for licensure to participate in the management of Seminole Greyhound Park, but he withdrew his application before it was acted upon by the Respondent. Fountain had known the Petitioner for many years. Fountain recommended to the Demetrees that they consider Petitioner for the job of general manager at Seminole Greyhound Park. The Petitioner was working as racing secretary at a dog racing track in Miami. He traveled to Orlando to be interviewed by the Demetrees. Fountain participated in at least one of those interviews. Petitioner was hired as general manager in October, 1981. Fountain was very active in the effort to convert Seminole Park into a greyhound racing facility. Fountain was basically in charge of the renovation project. Petitioner worked closely with Fountain. When Petitioner first moved to Orlando, he shared a motel suite with Fountain. The two were close friends, and they met socially as well as working together in the business enterprise. One of the Demetrees had inquired of the Secretary of the Department of Business Regulation as to the propriety of Fountain working in the renovation project. The Secretary expressed no opposition to Fountain working in that capacity, but advised that it would not be permissible for Fountain to be present at the track during the racing season or to participate in any capacity in the operation of the track. Paul Dervaes, the President of Seminole Greyhound Park, Inc., made a similar inquiry. By letter dated May 5, 1981, the Department of Business Regulation specifically advised Dervaes that it would be improper for Fountain to be in attendance at the track during the racing season or to participate in the management or operation of the track. Dervaes showed this letter to the Petitioner. On the first day of the racing season, Fountain was present at Seminole Greyhound Park solely to pick up some materials that he had left there. This visit to the park was expressly approved by Gary Rutledge, who was then the Director of the Division of Pari-Mutuel Wagering. It does not appear that Fountain was otherwise present at the track on that date or at any other time during the 1981 racing season. Despite the Respondent's admonishment that Fountain should not participate in management or operation of Seminole Greyhound Park, Petitioner continued to consult with Fountain on a frequent basis during the 1981 racing season. Fountain frequently contacted the Petitioner with regard to how well the track was performing. Petitioner specifically consulted with Fountain regarding publicity and promotional activities. Fountain had been instrumental in encouraging the use of a "Super 8" promotion whereby customers at the track would attempt to successfully place the order of finish of all eight dogs in a given race. When the promotion was less successful than had been anticipated, Petitioner consulted directly with Fountain about it. Fountain made various recommendations, some of which were followed and some which were not. During the course of the racing season, Fountain communicated with Petitioner with respect to certain persons who Fountain suggested be given special benefits, such as free meals, at the track. These were persons who were "good betters," i.e., persons who placed large bets. These recommendations were followed by Petitioner. On one occasion, Fountain was responsible for authorizing a "petty cash" expenditure for a wedding present for a member of the press. Petitioner approved the expenditure that had been authorized by Fountain. In addition to participating in operation of Seminole Greyhound Park in these specific instances, Fountain was in constant telephone communication with Petitioner and other persons at the park. In addition to communicating with Fountain about various facets of the business operation, Petitioner was in frequent contact with him on a personal basis. It appears that Fountain had more than a casual interest in the success of Seminole Greyhound Park. It appears, for example, that Fountain loaned large amounts of money directly to owners of the park for the express purpose of purchasing and renovating the facility. Although Fountain was employed by the Demetrees to accomplish the renovation of the facility, it appears that he was not compensated for that work. It further appears that no interest was paid to him on the loans that he made to park owners. These activities may reflect adversely upon the ownership of Seminole Greyhound Park. It does not, however, appear that Petitioner was aware of any financial interest that Fountain may have had in Seminole Greyhound Park. Petitioner was responsible for hiring a veterinarian to serve as the approved track veterinarian, and for seeing that the veterinarian was properly approved by the Respondent. Petitioner hired Dr. Bob Sindler as the track veterinarian, and Sindler was properly approved. Shortly before opening day, Petitioner learned that Sindler would not be able to be present at every racing session, and that he would send an associate, Dr. David Case, to serve as track veterinarian on those dates. Dr. Case actually served as track veterinarian on several occasions before he was properly approved by the Respondent. While Case was ultimately approved, and it does not appear that he performed his responsibilities other than properly, he did serve for at least a brief period as track veterinarian before he had been properly approved. Under the Respondent's rules, entries for all races must be drawn by lot, with certain exceptions. One of these exceptions is for "T" races. These races are made up by the track's racing secretary and can include dogs that are not in the same grade and more than one dog from the same kennel. The number of such races is limited to no more than three races per week. Considerably more than three "T" races were run at Seminole Greyhound Park during every week of its 1981 season until the Respondent advised the racing secretary of the violations by a memorandum. Personnel at Seminole Greyhound Park had not received any prior authorization from the Respondent to run more "T" races than allowed under the Respondent's rules. Petitioner was not directly responsible for developing racing programs. That task fell to the racing secretary. The racing secretary was, however, supervised by the Petitioner, and Petitioner knew, or should have known, that excessive "T" races were being run. Greyhound racing facilities are required to devote a portion of receipts to charitable endeavors and to the State Board of Regents. On Petitioner's advice, Bill Demetree prepared a list of institutions to which he wished to devote the funds from the Board of Regents' allotment. He sent checks to each specific institution, rather than a single check to the Board of Regents, which would have then been disbursed to the designated institutions. It appears that the Petitioner gave Demetree this advice after consulting by telephone with personnel of the Respondent. It appears that he misunderstood information that was conveyed to him. On or about August 21, 1981, the Respondent engaged in what was described at the bearing, depending upon the disposition of the witness, as a "raid" or an "investigative action." Agents of the Respondent and the Department of Law Enforcement appeared at Seminole Park during a racing session, seized documents, conducted tests on dogs, and interviewed track personnel. Petitioner was detained and questioned at length by Gary Rutledge, then the Director of the Division of Pari-Mutuel Wagering. Rutledge testified that Petitioner admitted during the course of an interrogation that Petitioner had made bets with bookies on football games. There was no recording device in operation during that portion of the interview, and no other person heard the statement. Rutledge did not testify as to the precise language used by Petitioner in making this asserted admission. The nature of these bets, when they were made and, indeed, whether they were legal or not cannot be gleaned from the evidence.
The Issue The issues in this case are whether Respondent, owner/trainer of record of a greyhound that finished in first place, a greyhound that finished in second place, and a greyhound that finished in third place in three separate races, and two greyhounds that ran and finished out of the money in two separate races, is legally responsible for the prohibited substance found in the urine sample of each of the five greyhounds taken immediately after each race in violation of Section 550.2415(1)(a), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Gregory H. Mitchell, was the holder of a professional individual occupational pari-mutuel license, number 129829, issued by the Division on July 1, 2002, with an expiration date of June 30, 2002. At all times relevant and material to this proceeding, the Sarasota Kennel Club was a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida and was assigned track number 153 by the Division. The Division of Pari-Mutuel Wagering Form 503 identified the name and location of each race track where a greyhound's urine sample was collected. At all times relevant and material to this proceeding, Respondent was the owner/trainer of record for each of the greyhounds who were entered in races at the Sarasota Kennel Club on the following dates and who had urine samples immediately taken and examined: (1) March 1, 2002, "Fly Bye Pumpkint" finished third in the third race, and the urine sample collected was numbered 842141; (2) March 11, 2002, "Greys Ice Star" finished eighth in the eleventh race, and the urine sample collected was numbered 852361; (3) March 12, 2002, "Fly Bye Pumpkint" finished fifth in the fourth race, and the urine sample collected was numbered 852399; (4) March 13, 2002, "Twilite Hossplay" finished second in the third race, and the urine sample collected was numbered 852439; and (5) April 8, 2002, "Dia's- White-Tip" finished first in the fourth race, and the urine sample collected was numbered 852562. The hereinabove five urine samples were forwarded to the University of Florida Racing Laboratory. The Racing Laboratory tested the urine samples and found that each urine sample tested contained benzoylecognine, a metabolite that is found only in cocaine. Cocaine is a Class I drug according to the Association of Racing Commissioners International Classification System.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order in this matter revoking the occupational license of Respondent, Gregory H. Mitchell. It is further RECOMMENDED that the following fines be imposed upon Respondent in the amount of $1,000 for the first-place finish violation; $1,500 for the second-place finish violation; $2,000 for the third-place finish violation; $2,500 for the fourth-place finish violation; and $3,000 for the fifth-place finish violation, for a total fine of $10,000. It is further RECOMMENDED that the Division order the purses received by Respondent, as a result of the first-place finish, the second- place finish, and the third-place finish, be returned forthwith to the Division. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 22nd day of May, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Gregory H. Mitchell 1010 Villagio Circle Sarasota, Florida 34237 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent, as the trainer of record for a greyhound, Tony's Maradona, that finished first place in the thirteenth race on November 6, 2001, is legally responsible for the prohibited substance found in the greyhound's urine sample taken immediately after the race, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Sardar Ahmed, was the holder of a pari-mutuel license issued by the Division. The Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 6, 2001, Respondent was the trainer of record for a greyhound, Tony's Maradona, having registered with the Kennel Club Racing Secretary and having been listed in the November 6, 2001, racing program. On November 6, 2001, greyhound Tony's Maradona finished as first (place) winner in the thirteenth race of the evening at the Kennel Club. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel Club's veterinarian assistant and urine sample collector. On November 6, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, Tony's Maradona, and assigned, for identification purposes, number 738612 to Tony's Maradona's urine sample. Urine sample number 738612 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida, and qualified as an expert in forensic toxicology, it tested positive for illegal substance, cocaine. Respondent testified that he did not administer the drug cocaine to the greyhound, Tony's Maradona; he had never been cited for any prior drug violation while holding a Florida occupational license; and he was not the trainer of Tony's Maradona, but was the owner of the greyhound. While this testimony was not rebutted or challenged by Petitioner and it is considered by the undersigned as true, its evidentiary value regarding the allegations in the complaint is nil. Respondent's defense to the Administrative Complaint (Election of Rights) alleging a possible breach of the "chain of custody" (from the end of the race, to bringing the dogs to the ginny pit, for sample collection, for sample labeling, sample examination and sample results) due to a lack of security was not supported by material evidence of record.
The Issue Whether Rule 7E-1.02(43), Florida administrative Code, a rule of the Division of Pari-Mutuel Wagering, Department of Business Regulation, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact TROPICAL PARK holds a Winter Thoroughbred Horseracing permit issued pursuant to Sections 550.02, 550.04, 550.05 and 550.81, Florida Statutes, and operates a race course in Dade County, Florida. GULFSTREAM and Hialeah, Inc. ("Hialeah"), are the other holders of Winter Thoroughbred Horseracing permits within a 35-mile radius of TROPICAL. See, Section 550.081(1), Fla. Stat. (1983). GULFSTREAM operates a race course in Broward County; Hialeah operates one in Dade County. CALDER is the only holder of a Summer Thoroughbred Horseracing permit authorized by Sections 550.40 and 550.41, Florida Statutes. It owns and operates a racing facility in Dade County. TROPICAL, during its winter race meet, leases the CALDER facility. It has done so since 1972, when CALDER acquired TROPICAL and the two corporations, in light of Section 550.47, Florida Statutes, agreed to the lease arrangement. TROPICAL, GULFSTREAM and Hialeah, as the only three winter permit-holders, each operate one of the three winter racing seasons defined in Section 550.081, Florida Statutes, and are prohibited by law from operating their racing meets at the same time. Winter racing dates are allocated by the Florida Pari-Mutuel Commission under the provisions of Sections 20.16(4) and 550.081, Florida Statutes. Intervenor, FHBA, is a voluntary organization of over 1,500 owners and trainers of thoroughbred race horses. The majority of its members participate in year round racing in Florida. Many of its members stable their horses at CALDER and a majority of its members participate in the CALDER and TROPICAL racing meets. Respondent DIVISION, a state agency created by Section 20.16(2), is charged with exercising regulatory authority over Florida's pari-mutuel wagering industry. The Legislature has enacted strict controls over pari-mutuel wagering in general and horseracing in particular. See, Chapter 550, Fla. Stat. (1985). The Legislature established the DIVISION, invested it with broad powers necessary to regulate and supervise the industry, and directed it to: make rules and regulations for the control, supervision and direction of all applicants, permittees and licensees and for the holding, conducting and operating of all race tracks, race meets, and races held in this state; provided, such rules and regulations shall be uniform in their application and effect . . .. Section 550.02(3), Fla. Stat. (1983). Effective May 17, 1976, the DIVISION amended Rule 7E-1.02 by repealing the then existing 7E-1.02(43), and replacing it with "new" subparagraph (43), the rule which CALDER and TROPICAL now challenge. The "old" 7E-1.02(43), which had been in effect since the 1940s and, apparently, never challenged on legal grounds, read as follows: All horse tracks within a radius of fifty (50) miles of each other shall open their stables and racing strips by November 1 of each year and remain open until April 30 of the following year. 2/ "New" rule 7E-1.02(43) replaced this with the following: In the event of an emergency situation, after proper hearing before the Division of Pari- Mutuel Wagering, if it is determined to be in the best interest of thoroughbred racing in Florida that a track must close its stable and racing strip for a designated period of time, and the stabling facilities of the remaining tracks are sufficient to accommo- date those horsemen wishing to race at one of the other tracks meeting, and that no serious detriment to the meeting success is evident, permission may be granted for such closing by the Division of Pari-Mutuel Wagering and the conditions set for same. When the DIVISION repealed "old" Rule 7E-1.02(43) and adopted "new" Rule 7-1.02(43), it filed a summary and justification of the rule with the Department of State as required by Chapter 120, Florida Statutes. The summary states: This rule provides a method for a track to repair racing strip and insures adequate stabling and training facilities during repairs. The justification states: This rule change is to coordinate the closing of any racing stable to insure adequate stabl- ing of horses so that there would be no detri- mental effect on any other track. (Petitioners' Exhibit "E") When "old" Rule 7E-1.02(43) was amended in 1976 to its present form, the DIVISION proposed to adopt not only the rule as it now exists, but also the following language: All horse tracks within a radius of fifty (50) miles of each other shall open their stables and racing strips by October 1 of each year and remain open until ten (10) days beyond the closing date of the track opera- ting the last period of the winter racing season. The horse track running the first period of the winter racing season shall reimburse the track running the middle and last period for fifty (50) percent of the additional operating expenses caused solely by the opening of these tracks 30 days ear- lier than prior existing rule. The DIVISION, however--for reasons not explained in the record--did not adopt this provision. With the repeal "old" Rule 7E-1.02(43) and the DIVISION's failure to adopt, in connection with "new" Rule 7E-1.02(43), the proposed language (requiring that certain stables and racing strips be open during a specified time period without regard to the particular track's racing season) there was no longer a rule explicitly compelling any race track to open its racing strip and stables in advance of, or keep them open after the close of, its allotted racing season. In October 1976, the DIVISION, apparently mindful of this hiatus, proposed to adopt a rule requiring all thoroughbred race tracks (within 50-miles of each other) to open their stables and race strips by November 1, of each year and remain open until ten days beyond the closing date of the track operating the last period of the winter racing season. This proposal, similar to the provision inexplicably omitted when "new" Rule was adopted in April 1976, would have applied to TROPICAL, GULFSTREAM, and Hialeah--the three horse tracks within 50 miles of each other which conducted winter racing meets. On October 15, 1976, pursuant to a request filed by CALDER and TROPICAL, the Acting Director of the DIVISION conducted a public hearing on the proposed rule. During the hearing, counsel for CALDER and TROPICAL argued that the CALDER/TROPICAL facilities needed to close in order to make necessary repairs; that the DIVISION lacked legal authority to adopt a rule compelling a race track to open its facilities and stables prior to and after the close of its own racing season for the purpose of accommodating other race tracks in the area; and that decisions on such matters should be made by management based on business judgment and the spirit of mutual cooperation. He added: Every year, the same general factors come to being at subsequent times, so all we are saying is to let the management sit down and work out and present a plan back to you, so the state can be assured of their cooperation. I believe that under those circumstances, that you will be pleasantly surprised at the ability of the tracks to cooperate and come up with a reasonable compromise. (Petitioners' Exhibit D, p. 74) The corporate president of GULFSTREAM, urging adoption of the rule, responded: I want to respond just the opposite. I feel you should pass this proposed rule or what I understand it to be. I still think we need the rule. The only reason there is no rule now is there was a mistake made procedurally. That should not affect the fact it is a rule which is not on the books now. In my opinion it should be on the books now and should always be on the books. It is a mistake, but how you operate, I am not familiar with that. I hope we can compromise. I do not think the state should be left in the position with no rule at all and just on our talk here today that something is going to happen and you will assume that we will end up with a com- promise. It would not be beneficial to find in February or January that everybody is shutting down and opening up and trying to cut each other's throats. It could very well happen if this thing gets out of hand. (e.s.) (Petitioner's Exhibit D, pp. 74-75) Whether the DIVISION had legal authority to adopt the proposed rule, was the focus of some discussion at the public hearing. A day earlier, on October 14, 1976, Robert L. Shevin, then Attorney General of Florida, issued a formal four-page opinion that the DIVISION was without authority to adopt the proposed rule. Citing, Department of Business Regulation v. Vandervort, 273 So.2d 66 (Fla. 1973) and St. Petersburg Kennel Club v. Baldwin, 38 So.2d 436 (Fla. 1979), he found that the proposed rule would violate the statutory requirement of Section 550.02: that all rules of the DIVISION be uniform in application and effect: The horse racing season will commence with Tropical at Calder opening around November 13 to be succeeded by Gulfstream and Hialeah. Calder will commence its summer horseracing season on or about May 13 and close on or about November 10. The effect of the rule will have all three tracks open November 1 and remain open to on or about May 21. Calder would, of course, be the only track required to remain open the entire year. That track is effectively prevented from ever closing its facilities to even be able to rebuild or take other necessary steps to ensure the safety of the attending public. . . . (Petitioners' Exhibit G, p.4) He concluded the opinion with this summary: Absent subsequent judicial or legislative clarification, a rule proposed by the Divi- sion of Pari-mutuel Wagering to require all horse tracks within a 50 mile radius to open their stables and racing strips by November 1 and to remain open until ten days beyond the closing of the winter racing season, would appear to violate the necessary statutory authority requirements judicially expressed by the Florida courts. (Petitioners' Exhibit G, p. 4) The DIVISION employee, attending the hearing to give reasons for the proposed rule, did not understand why the DIVISION's legal authority for the rule was being questioned: I would like to ask Mr. Moore [counsel for the DIVISION] a question. I do not have legal background. I thought that all of our rules are in the book, and the rule here was previously in the book, about the opening and closing of the winter tracks. I do not have the rule number. We know what we are talking about. The rules come from Florida Statutes or law. That is where the rules come from. Where along the line did we lose our authority. The mere fact that we are trying to change a rule and what not does not mean that we do not have the authority. I do not understand where we lost our authority to make the rules. (Petitioners' Exhibit D, p. 77) The public hearing was adjourned, with the Division Director deferring his decision for ten days to give the parties an opportunity to present any additional information. There is no evidence that the DIVISION even took any further action on the proposed rule. No rule was adopted which expressly, as by necessary implication, reimposed the former requirement--in effect from the 1940s until the April 1976--which required race tracks to open their stables and racing strips in advance of their racing seasons, and keep them open beyond the close of their seasons. III. Since the 1976 repeal and adoption of "new" Rule 7E-1.02(43), the DIVISION has never applied the rule to any other race tracks in Florida other than CALDER and its winter season lessee, TROPICAL. No other race track, other than CALDER/TROPICAL has ever requested permission from the DIVISION to close its stables at any time. Nor has the DIVISION ever taken any action against any track--other than CALDER/TROPICAL--demanding that stables remain open or demanding that permission from the DIVISION be obtained before closing them. In January 1980, pursuant to Rule 7E-1.02(43), CALDER applied to the DIVISION--under protest--for permission to temporarily close its stables for necessary repairs during a specific period during the Winter Thoroughbred Horseracing season. The DIVISION, after hearing, granted permission. Because the CALDER facility is operated during a summer season (June to November 9) and TROPICAL's winter season (November 11 to January 7) and because Hialeah and GULFSTREAM operate their race meets during the period of time that the CALDER racing facility is not being used [January 8 to May 30] CALDER's is the only horse race track required--under the DIVISION's construction of Rule 7E- 1.02(43)--to keep its stables and race strip open, unless permission is granted to close in accordance with the conditions specified in the rule. No other horse race track in Florida, including GULFSTREAM and Hialeah, is required to keep its stables and racing strips open year round, absent permission to close being granted by the DIVISION. Both Hialeah and GDLFSTREAM open and close their stable areas in accordance with their business judgment. GULFSTREAM and Hialeah have never sought permission from the DIVISION to close their stable areas, nor has the DIVISION ever demanded that either keep their stables open year round, or during the period of time that both tracks are not conducting their individual racing meets. By notice dated July 29, 1985, Kenneth Noe, Jr., President of TROPICAL and CALDER, notified all horsemen stabled at the CALDER/TROPICAL facility that the barn area would close on Monday, January 13, 1986, for necessary improvements and repairs. He stated that the cost of keeping the stables open for the horsemen's benefit during the time that CALDER and TROPICAL were not operating race meets was getting "most prohibitive." This notice precipitated a letter dated August 2, 1985, from Richard Burroughs, Jr., Secretary and Head of the Department of Business Regulation, advising Mr. Noel, that CALDER could not close its facility at the conclusion of TROPICAL's winter race meet without first complying with the conditions of Rule 7E-1.02(43). (Petitioners' Exhibit K) Mr. Burroughs was unaware of the existence of Rule 7E-1.02(43) until after he learned of CALDER's intent to close its racing facility in January 1986, and sought advice from the DIVISION's legal counsel on the DIVISION's responsibilities. Mr. Burroughs is still not familiar with the rule, other than the fact that he has been advised by counsel that such a rule exists, and that it requires the CALDER stable area to remain open unless the DIVISION grants permission to close. It is his stated intention to enforce Rule 7E-1.02(43), or ask his legal staff to enforce the rule if he feels enforcement is "in the best interest of the State of Florida, the best interest of the thoroughbred racing industry in Florida, and the best interest to protect the State's revenue." (Petitioners' Exhibit K, p. 13) By letter dated August 23, 1985, addressed to Mr. Burroughs, CALDER specifically objected to the application of Rule 7E-1.02(43) to its facility for several reasons, including: If such rule is valid, it can only apply during a permit-holder's meet, as a [sic] jurisdiction of the Division over such permit- holders facilities extends to the conduct of its meet, and not beyond. If the rule is applied to extend beyond the permit-holder's meet, then such rule requires the use of Calder's private property for the benefit of the State, or some other private permit-holder without compensation to Calder, the same being in violation of the Florida Constitution. The rule since enactment in 1976, has never been applied to any permit-holder. The Division has never utilized or exercised any authority relating to the opening or closing of any permit-holder's stable area or racing facility. The rule in and of itself is vague, and the history of the enactment of the same, indicates clearly that the Division had re- cognized the lack of power to require stables to stay open for the period of the previous rule 7E-1.02(43). (Petitioners' Exhibit I) The ruled as construed by the DIVISION, requires a race track to keep its stable area open for the benefit of horsemen wishing to race at another race track, even though the race track whose stables are to remain open is not presently conducting its race meet. Under this construction, a horse race track must keep its stables open for the benefit of other race tracks, with no compensation from the affected race track. In the Division's view, such a requirement is necessary for the good of the pari-mutuel industry because a sufficient supply of stables is necessary to attract quality horses to Florida horse races. However, in practice and application, only CALDER is required to keep its stable area open year round, and it is the only race track in the state required to request permission to close its stables. 3/ The current Director of the DIVISION does not know what various provisions of Rule 7E-1.02(43) mean or were intended to mean, and is unable to construe the rule or apply it. He thinks, however, that it means that while either GULFSTREAM or Hialeah is operating, TROPICAL is obligated (to these winter thoroughbred permit-holders) to maintain its backside open; similarly Hialeah and GULFSTREAM are obligated to open while TROPICAL is operating. He is not sure, however, whether Hialeah and GULFSTREAM have ever complied with the rule. Neither Hialeah nor GULFSTREAM has ever requested permission to close their stables. There have been occasions, however, when Hialeah and GULFSTREAM may have opened or closed a little before the season, or opened a little bit later than the DIVISION though they should; when this occurred the DIVISION discussed the matter with them. However, no other DIVISION action was taken towards GULFSTREAM or Hialeah under the rule. The Division Director was aware that Hialeah opened its stables late in 1984, somewhere near the end of November, when only about 35 racing days were left in TROPICAL's race meet. (Testimony of Rosenberg) IV. The CALDER race facility has approximately 1,850 stables; GULFSTREAM and Hialeah each have approximately 1,300 stables. During both CALDER's and TROPICAL's race meet, all of the horses stabled at CALDER's stabling area, except for approximately 10 to 15 percent, actually run in a CALDER or TROPICAL race. In 1984-85, the horses stabled at Hialeah during its race meet, only 50 percent of the horses actually ran in a Hialeah race. Of the horses stabled in GULFSTREAM's barns during its meet, only 75 percent of the horses actually ran in a GULFSTREAM race. Almost 40 percent of the horses stabled at GULFSTREAM and Hialeah--1,016 horses out of 2,600--failed to run in a race at either. The DIVISION has never conducted a specific study as to the expense incurred by the race tracks in keeping their stables open during the period of time they are not operating, or when they are conducting a race meet. Nor has the DIVISION conducted a specific study on the number of stables needed by any affected race track to conduct a successful race meet. CALDER has a sufficient number of stables at its facility to operate its 120 day summer racing meet, or any one of the periods of winter racing. The cost of operating the stable area and racing strip at CALDER is approximately $8,000 per calendar day. (Horsemen are not charged for use of the stables at any of the affected race tracks.) If Hialeah and GULFSTREAM were to allocate their stable space to horses that would actually run during their race meets, both Hialeah and GULFSTREAM should have sufficient stable space. However, the management of GULFSTREAM feels that in order to attract the quality of horses necessary for a successful race meet, it must provide stable space to other horses which it knows will not run at its race meet. The decision on which horses will be allowed to stables will be assigned to horses which will not actually run a race, is made by management. 1984-85 "starter books" show that 1,016 horses stabled at Hialeah and GULFSTREAM during their meets did not run in a race at either. However, during GULFSTREAM's 1984-85 meet, 874 horses were stabled at CALDER but ran in a race at GULFSTREAM. Likewise, during Hialeah's 1984-85 race meet, approximately 418 horses were stabled at CALDER but ran in a race at Hialeah. Thus during the Hialeah and GULFSTREAM race meets, approximately 1,292 horses were stabled at CALDER, but started a race at either Hialeah or GULFSTREAM. Hialeah and GULFSTREAM, however, did not start a total of 1,016 horses stalled at their own facilities. Subtracting the 1,016 figure from the 1,292 figure leaves a total of 276 as the maximum number of stalls that might have been necessary to accommodate horse trainers intending to race at a horse race meet. However, if GULFSTREAM and Hialeah were to allocate their stall space only to horse trainers intending to run at their respective track facilities, both Hialeah and GULFSTREAM would have sufficient stall space. GULFSTREAM did not build more than 1,300 stalls because many of the horses that were going to run at its race track were stabled at the former TROPICAL racing facility, and after 1972 (when TROPICAL leased the CALDER facility), at the CALDER racing facility. Consequently, there was no reason for GULFSTREAM to build additional stables (as CALDER did) because it used CALDER stables in connection with the operation of its race meet. However, nothing under the pari-mutuel laws and rules would prohibit GULFSTREAM from building additional stable space at its facility, should it feel such action is warranted. (GULFSTREAM has not added a new stable in 15 years.) For several years, GULFSTREAM has come to rely on the availability of CALDER's stables and racing strip to augment its own stables during the operation of its racing meet. With CALDER's stables available to it, GULFSTREAM could allocate numerous stables and stalls to horsemen who were bringing horses to GULFSTREAM which GULFSTREAM knew would not run in its meet. GULFSTREAM's stated reason for its stable management practice is that such allocation of stalls is necessary in order to attract better horses to its race meet. Mr. Donn, GULFSTREAM's corporate president, explained it in this way: Q. [By Mr. Brewton] You made several com- ments relating to different trainers and so forth that you were discussing, and I don't recall who in particular, but you made com- ments relating to people bringing down cer- tain prize horses, then the statement, are we to deny stalls to those people? A. [By Mr. Donn] Right. Q. We must offer that luxury? A. Right. Q. It's worth it if we get that horse? A. Right. Q. We have to accept other horses in order to get prime horses? A. Un huh. Sometimes. Q. It's worth it to see those horses run? A. It's worth it to Florida racing. Q. Is that the statements you made? A. Right. Q. Is that not a management decision you have made by Gulfstream Park, in your refer- ences to your business? A. It's a management decision that has been made at most other tracks in the country. If you got a prize horse, you write your ticket and that's the nature of the beast. Q. But that's management decisions you have made as to whether or not you have to do it? A. It's a management decision that he wants to increase the quality and quantity of racing. Q. At your race meet? A. Right. (Transcript of Hearing, pp. 230-231. In effects CALDER must keep its stables open in order to (in light of GULFSTREAM's stall allocation practice) assure adequate stables for the conduct of GULFSTREAM's meet. This requires CALDER and TROPICAL to bear the expense of keeping CALDER's stables open for the sole benefit of GULFSTREAM, whose need for CALDER's stables is created by its own stall allocation decisions; CALDER is vitally affected by those decisions but plays no part in them.
The Issue The first issue is whether the Greyhound Veterinary Assistant Procedures Manual published by the Division of Pari- Mutuel Wagering ("Division Manual") constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes (2014).1/ Petitioner further contends that the agency materially failed to follow applicable rulemaking procedures with respect to the Division Manual; that it is vague, fails to establish adequate standards for agency decisions, invests unbridled discretion in the agency; and is arbitrary and capricious, in violation of sections 120.52(8)(a), (d), and (e). A second issue is whether Florida Administrative Code Rule 61D-6.002 is an invalid exercise of delegated authority because it enlarges, modifies, or contravenes the provisions of section 550.0251(3), Florida Statutes; is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or is arbitrary and capricious, in violation of sections 120.52(8)(c), (d), and (e). Petitioner further contends that rule 61D-6.002 violates Petitioner's due process rights and is therefore unconstitutional.
Findings Of Fact Petitioner, Mr. Robert Dawson, is the holder of an Unrestricted U-1 Professional Pari-Mutuel License authorizing him to train racing greyhounds pursuant to section 550.105, Florida Statutes. Mr. Dawson is subject to chapter 550 and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), is a state agency delegated the responsibility for the implementation and enforcement of Florida's pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in Florida. In the past, the Division used to take urine samples from dogs after a race, usually from the winner. The dogs to be tested would be announced, and the owner or his representative could then witness the sample collection and sign indicating that he had witnessed the sample being taken. In late 2008, the Division changed the procedures that it follows and began to take pre-race samples. Mr. Jorge Callejas testified that many dogs tend to urinate prior to the race, and it was noted that, after a race, they were tired and not as interested in urinating. The Division had monitored statistics and found that with post-race collections, the number of samples that did not have a sufficient quantity for testing was very high. After switching to pre-race testing, the number of untestable samples went down significantly. At that time, they began using an earlier version of the Division Manual, which sets forth procedures to be followed by veterinary assistants employed by the Division working with the racing greyhound program. The Division now conducts random pre-race urine sample collections at all of its licensed greyhound race tracks. The Division uses the Division Manual at all greyhound racing facilities in the state of Florida. The Division provides the Division Manual to its veterinary technicians working at the licensed greyhound race tracks. The Division Manual was last amended on March 31, 2010. The Division Manual is properly attributable to the Division as an institution. The Division filed two administrative complaints against Mr. Dawson for violations of section 550.2415, which are pending before DOAH with case numbers 14-4450PL and 14-4719PL. Trainers of dogs with a positive urine test can face severe sanctions. As a greyhound trainer, Mr. Dawson's responsibilities include feeding the dogs, examining them for injuries, keeping them at the proper weight, preparing them for weigh-in before each race, and keeping them healthy. Occasionally, he also personally takes the dogs to the track. On a race day, the dogs are typically walked, cleaned up by a kennel helper, weighed-in, and then given to the "leadouts." Leadouts are not employed by the individual kennels, but are employed by the track. The leadouts place the dogs in the ginny pit area, sometimes called the lock-up, an area where the dogs stay until their scheduled race. Trainers and kennel helpers are not allowed in the ginny pit area. Trainers and helpers therefore have no access to their dogs for an extended period of time until the race begins and have no control over the employees of the track (leadouts and kennel master) who do have access to the dogs during that time. Pre-race urine specimens are randomly taken from dogs in an outdoor, fenced area adjacent to the ginny pit building by veterinary assistants employed by the Division. This area is open to view by the public, including trainers or their helpers, but only track employees and Division personnel are allowed access to the area. The area where trainers have to be to pick up their dogs is on the opposite side of the building, and from this location, the view of the open area where samples are taken is blocked by the building. Trainers and helpers are routinely occupied with their other dogs and do not have time to watch the pre-race sample collection, especially since they do not know if one of their dogs will be sampled or not. The Division does not individually notify each trainer of record or kennel worker for racing animals when random pre- race urine collection will occur. Trainers and kennel workers are not advised that their greyhounds are going to be tested on a particular day. The Palm Beach Kennel Club does not have video cameras in place that would allow trainers or their helpers to view the dogs while they are in the ginny pit area. Mr. Arthur Agganis, as president of the Palm Beach Greyhound Association, petitioned the general manager to put in some cameras, at the association's expense, but no cameras have been installed. There is a camera in the open area where samples are collected, but trainers and helpers cannot view the feed from this camera. In horseracing, horse trainers are not prohibited from physically accessing their horses prior to the start of each horse's race. As the southern regional manager of greyhound tracks, Mr. Callejas visits the tracks under his responsibility and ensures that each track is following the Division Manual's sampling and testing procedures, including the chain-of-custody procedures. Ms. Jill Blackman testified that the Division Manual was a guideline used for training veterinary assistants in the field. Section 3 of the Division Manual ("Section 3") consists of nine subsections: 3.1 Greyhound Sampling Priority; 3.2 The Collection Process; 3.3 Meeting and Identifying the Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample; 3.6 Completing the Required Forms; 3.7 Storing the Sample; 3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples. After the veterinary assistant identifies the dog and collects the sample, the sample is sealed in the cup with evidence tape, labeled, and taken to a freezer in the veterinary assistant's office, where it is locked up. Section 3 does not require the Division to advise trainers of when urine sample collection occurs. Section 3 does not require the Division to ensure that the trainer witness the urine sample collection process or to ensure that the Division obtain the trainer's signature on the specimen card. The Division Manual states on page six that one of the primary duties of the veterinary assistant is to "study and put into practice the procedures outlined in this manual." It goes on to emphasize the importance that all those collecting urine samples understand the proper procedures, and "follow those procedures EACH AND EVERY TIME." Section 3 states at page ten, "Those collecting samples must follow strict chain-of-custody procedures in order to stand as credible evidence in a judicial proceeding." It then goes on to prescribe a "strict sequence of events" that must be followed to ensure that samples are properly collected, sealed, and secured to avoid tampering or alteration. It sets forth procedures to correctly identify a greyhound by the numbers tattooed on its ear, prepare required forms, store collected samples, prepare them for shipment, and maintain the security of the backside areas. Division employees do not have discretion not to follow the Division Manual; its provisions are mandatory and enforced by the Division. The integrity of greyhound racing in Florida is important to citizens betting on the outcome of races and to the dog owners, trainers, and other employees who earn their livelihood in the industry. The procedures followed to collect samples and otherwise ensure the integrity of the sport are important to dog trainers and to the public. A notice of rule development for existing rule 61D- 6.005, entitled Procedures for Sampling of Racing Animals, has been published. Mr. Dawson, as a dog trainer subject to possible discipline under the "absolute insurer" rule, 61D-6.005, is substantially affected by the sample collection and testing procedures of Section 3. He has alleged a real and sufficiently immediate injury in fact. Chapter 550 contains procedures such as "split sampling" to protect trainers and ensure integrity of the testing process, and Mr. Dawson comes within the zone of interest of chapter 550. In his petition, Mr. Dawson sufficiently alleged that Section 3 of the Division Manual was an unadopted rule and attached a copy of it to his petition. Section 3 constitutes a rule within the definition of section 120.52(16). Section 3, or a substantially similar statement reflecting the Division's sample collection process for racing greyhounds, has not been adopted as a rule under chapter 120. It is practicable and feasible to adopt Section 3 as a rule. Rule 61D-6.005 is uniform in its application and effect. The rule is not vague, does not fail to establish adequate standards for Division decisions, or vest unbridled discretion in the Division. The rule is not arbitrary or capricious.
The Issue Whether Jefferson County Kennel Club, Inc.’s, pari-mutuel wagering and operating license should be disciplined, and if so, the penalty that should be imposed.
Findings Of Fact JCKC holds a pari-mutuel wagering license, number 0000146-1000, and a pari-mutuel operating dates license numbered 0000146-1001. Under those licenses, Respondent operates a dog track and poker room at its race track facility in Jefferson County, Florida. On certain dates, Respondent offers matinee and evening dog races. For each race, Respondent is required to have a licensed veterinarian on the premises before, during, and after the race. The purpose of the veterinarian is to ensure the racing dogs are healthy and fit enough to race and to provide care for any racing dog injured during a race. In general, the veterinarian examines or observes all dogs during the dogs’ weigh-in and after the dog is placed in the lock-out kennel before and after a race. The lock-out kennel or Jenny Pit is a holding area where each dog is held in a separate cage. Access to the area is limited. On September 17 and 19, 2005, February 6, 18, 24, 25, March 4, 10, 11, 18, 30, and April 1, 8, 15, and 22, 2006, Respondent conducted races at its track. During 2005 and 2006, Dr. David Jordan, now deceased, was the licensed veterinarian at Respondent’s track. At the time, Dr. Jordan was dying from cancer, and with little notice, sometimes could not be present on race days due to his illness. On those days, and because of the limited number of qualified veterinarians in the Jefferson County area, attempts to locate another veterinarian were not successful. As a consequence, no track veterinarian was present for the matinee races held on September 17, 2005. Similarly, no track veterinarian was present for the evening races held on September 19, 2005, February 6, 2006, February 18, 2006, February 24, 2006, February 25, 2006, March 4, 2006, March 10, 2006, March 11, 2006, March 18, 2006, April 1, 2006, April 8, 2006, April 15, 2006, and April 22, 2006. Additionally, no track veterinarian was present for the weighing in before the greyhounds entered the lock-out kennel prior to the evening races held on March 30, 2006. However, a veterinarian was present to observe the race dogs during and after the evening races on March 30, 2006. Respondent does not dispute that a veterinarian was not present on the days listed above and does not dispute that such failure was a violation of the Division’s rules. Respondent does dispute the maximum amount of the fine sought by Petitioner. Clearly, Respondent’s license is subject to discipline under Chapter 550, Florida Statutes (2008). The law in effect from September 2005 though April 2006 allowed JCKC to operate its cardroom only on the days that it was conducting live greyhound racing. The revenues from JCKC’s cardroom operations for the dates at issue are as follows: DATE GROSS RECEIPTS TOURNAMENT GROSS RECEIPTS TOTAL GROSS RECEIPTS TAX DUE STATE 09/17/05 $4,558.00 $1,620.00 $6,178.00 $617.80 11/19/05 4,220.00 0.00 4,420.00 422.00 02/04/06 6,852.00 0.00 6,852.00 685.20 02/18/06 5,452.00 0.00 5,452.00 545.20 02/24/06 3,862.00 0.00 3,862.00 386.20 02/25/06 5,154.00 0.00 5,154.00 515.40 03/04/06 5,404.00 0.00 5,404.00 540.40 03/10/06 2,971.00 0.00 2,971.00 297.10 03/11/06 3,949.00 0.00 3,949.00 394.90 03/18/06 4,254.00 918.00 5,172.00 517.20 03/30/06 898.00 1,600.00 2,498.00 249.80 04/01/06 3,494.00 1,224.00 4,718.00 471.80 04/08/06 3,782.00 1,440.00 5,222.00 522.20 04/15/06 4,204.00 1,386.00 5,590.00 559.00 04/22/06 3,235.00 1,440.00 4,675.00 467.50 TOTALS $62,289.00 $9,628.00 $71,917.00 $7,191.70 Even with this revenue, the track operates at a loss. Moreover, this is the only disciplinary action against Respondent. On the other hand, Respondent did have multiple times when a veterinarian was not present to observe the dogs at the track. However, the veterinarian’s absences were unpredictable and not within Respondent’s control. Given these factors, it is unreasonable to fine Respondent the maximum amount accorded under Chapter 550, Florida Statutes (2008). In this case, a reasonable fine would be $500 for each day the track veterinarian was not present as required.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Florida Administrative Code Rule 61D-6.009(2), and imposing a $7500 fine. DONE AND ENTERED this 5th day of June, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 5th day of June, 2009. COPIES FURNISHED: Charles T. “Chip” Collette, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Steve Andris Post Office Box 400 Monticello, Florida 32345 Tim Vaccaro, 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
The Issue Whether Petitioners are entitled to exceed the twenty percent cap on simulcasts.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating pari-mutuel facilities within the State of Florida. The Department also regulates, pursuant to Chapter 550, Florida Statutes, simulcast broadcasts of pari-mutuel events which are imported into the state at pari-mutuel facilities located within Florida. Such broadcasts are permissible and are subject to statutory taxes depending on the type of event and the applicable percentages of tax on the wagers received. Such amounts may vary depending on facility and type of event. Thoroughbred racing permit holders may simulcast thoroughbred races conducted at out-of-state thoroughbred tracks. Similarly, a harness racing facility may simulcast harness races conducted at out-of-state harness tracks. Theoretically, greyhound clubs may simulcast greyhound races conducted out-of- state and jai alai may simulcast jai alai matches from out-of-state. In each instance, the Florida pari-mutuel permit holder may send the simulcast signal to any pari-mutuel permit holder within the state. Historically, the number of the races which could be imported from out- of-state to be broadcast at a Florida permit holder location was capped at twenty percent. A permit holder could exceed this limitation with approval from the Department when it was in the best interests of racing and would promote live racing and purse distribution. Petitioner, Calder Race Course, Inc. (Calder), is a thoroughbred racing pari-mutuel permit holder fully authorized by the Department to conduct live races during its racing meet. Its racing facility is located in Miami, Florida. In June, 1995, Calder first requested permission to conduct full card simulcasting pursuant to Section 550.3551(6), Florida Statutes. That request, covering racing dates remaining for the 1995-1996 racing season, was denied. Moreover, Calder's request for an administrative hearing to challenge the denial was also denied. Calder's successful appeal to the district court of appeal ultimately resulted in this matter, DOAH case no. 95-6180, being referred to the Division of Administrative Hearings for formal proceedings. In December, 1995, Calder again filed an application to exceed the twenty percent full card simulcast limitation for its 1996-1997 racing season. Again, the Department denied the request. Having the benefit of the appellate decision, the Department referred the matter, DOAH case no. 96-1348, to the Division of Administrative Hearings for formal proceedings. Petitioner, Tampa Bay Downs, Inc. (TBD), is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Its racing facility is located in Oldsmar, Florida. In September, 1995 and January, 1996, TBD applied for full card simulcasting for its racing meet. Consistent with its response to Calder's request, the Department denied the TBD applications and referred the matter to the Division of Administrative Hearings for formal proceedings, DOAH case nos. 96-0025 and 96-1351. Petitioner, Tropical Park, Inc. (Tropical), is a thoroughbred racing pari-mutuel permit holder that is fully authorized to conduct live races during its racing season. It shares the Calder facility in Miami but has a different racing meet. Like Calder, Tropical filed for full card simulcasting for its 1996- 1997 racing meet and was denied by the Department. Its petition for formal proceedings has been designated DOAH case no. 96-1349. Petitioner, Gulfstream Park Racing Association, Inc. (Gulfstream) is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Gulfstream is located in Hallandale, Florida. On or about January 3, 1996, Gulfstream filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for the 1996-1997 racing season with a race meet running from January 3, 1997 through March 16, 1997. The Department denied Gulfstream's application. Such denial, DOAH case no. 96-1350, was timely opposed by Gulfstream. Petitioner, PPI, Inc., d/b/a Pompano Park Racing (Pompano), is a harness racing pari-mutuel permit holder that is fully authorized to conduct live harness races during its racing season. Pompano is located in Pompano Beach, Florida. On or about December 20, 1995, Pompano filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for Pompano's 1996-1997 racing season. The Department denied Pompano's application. Such denial, DOAH case no. 96-1392, was timely opposed by Pompano. Petitioner, the Florida Thoroughbred Breeders' Association, d/b/a the Florida Thoroughbred Breeders' and Owners' Association (Breeders), is a nonprofit corporation with its principal place of business located in Ocala, Florida. This Petitioner represents Florida owners and breeders of thoroughbred race horses. The Breeders maintain that denying simulcasting in excess of the twenty percent limitation adversely impacts the amounts which must be paid as the breeder's percentage of the wagers made at pari-mutuel facilities. Thus, Florida breeders lose income which simulcasting in excess of the cap would contribute to breeders' awards. The Intervenors are greyhound pari-mutuel permit holders who opposed full card simulcasting in excess of the statutory twenty percent limitation. Such Intervenors did not oppose the importation of the broadcast signals to a specific pari-mutuel location, but opposed its unbridled rebroadcast to pari- mutuel facilities within the state as allowed by law. Before the hearing in this cause was completed and on the last day of the 1996 regular session, the Legislature enacted CS/HB 337. Such bill became law without the Governor's signature and went into effect on July 1, 1996. The new law made numerous amendments to Chapter 550, Florida Statutes. Among the changes was the removal of the twenty percent limitation on simulcast wagering for pari-mutuel permit holders. On May 16, 1996, the Department issued a letter to all pari-mutuel wagering permit holders that provided, in pertinent part: In light of this omnibus legislation which addressed the concerns of the entire pari- mutuel industry including the issues surrounding full-card simulcasting, the Division of Pari-Mutuel Wagering (Division) believes it is in the best interest of Florida racing to immediately allow full- card simulcast wagering until June 30, 1996 pursuant to the Division's discretion set forth in subsection six of Section 550.3551, Florida Statutes. Accordingly, any pari-mutuel wagering permitholder whose annual license currently authorizes them to conduct live performances at any time during the period of May 17, 1996 through June 30, 1996 may receive broadcasts of like-kind events conducted at facilities outside this State at the race- track, dog track, or jai-alai enclosure of the licensee during any live performance authorized by the permitholder's annual license. On June 30, 1996 the privilege granted by this letter terminates; thereby, ending any authorization to exceed the twenty-percent limitation on simulcast wagering for all permitholders within the State. Full-card simulcast wagering authorized and regulated pursuant to the provisions in the Committee Substitute for House Bill 337 becomes effective on July 1, 1996. Thereafter, the Department filed a motion to dismiss Petitioners' requests for formal administrative hearing due to mootness. The Intervenors have supported the Department's motion to dismiss. The Petitioners, with the exception of Gulfstream which wanted the hearing and the administrative process to be completed, filed a motion to abate so that the 1996-1997 racing season may be completed before a determination is made as to the mootness of the issue.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving all full card simulcasting applications for which days remain in the Petitioner's racing meet. All other applications are deemed moot as the racing meets have expired. DONE AND ENTERED this 30th day of October, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of October 1996. COPIES FURNISHED: Alexander H. Twedt, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harry R. Detwiler, Jr., Esquire John M. Alford, Esquire ALFORD & DETWILER 1106-6 A Thomasville Road Tallahassee, Florida 32303 Wilbur E. Brewton, Esquire Lee M. Killinger, Esquire Gray, Harris & Robinson, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 (Attorneys for Calder Race Course, Inc. and Tropical Park, Inc.) Howell L. Ferguson, Esquire Cindy L. Bartin, Esquire LANDERS & PARSONS Post Office Box 271 Tallahassee, Florida 32302 (Attorneys for Tampa Bay Downs, Inc.) Gary R. Rutledge, Esquire Harold F.X. Purnell, Esquire Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302 (Attorneys for the Intervenors) David S. Romanik, Esquire ROMANIK, LAVIN, HUSS & PAOLI 1901 Harrison Street Hollywood, Florida 33020 (Attorneys for Gulfstream Park Racing Association, Inc.) Warren H. Husband, Esquire Messer, Caparello, Madsen, Goldman & Metz, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 (Attorneys for Florida Thoroughbred Breeders' Association) Alan B. Koslow, Esquire David H. Reimer, Esquire BECKER & POLIAKOFF, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 (Attorneys for PPI, Inc.) Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Royal H. Logan Acting Director Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
