The Issue The issue presented herein concerns whether or not Respondent unlawfully discriminated against Petitioner, Michael Brown, on the basis of his race.
Findings Of Fact At the outset of the hearing herein, Respondents moved to dismiss the Petition herein based on a claimed lack of jurisdiction over the Respondents because of Petitioner's failure to allege that the Respondents were employers within the meaning of Section 760.02(6), Florida Statutes. Additionally, Respondent, William B. Bryant Company, alleged that the Petition was untimely in that it was not filed within 180 days of the occurrence of the alleged unlawful employment practice as set forth in Rule 22T-9.01(2), Florida Administrative Code. Respondent, William B. Bryant Company, introduced payroll records for all times relevant herein. 1/ An examination of those records reveals that Respondent William B. Bryant Company has not employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Based thereon, Respondent William B. Bryant Company is not an employer within the meaning of the Human Rights Act of 1977, as amended. Section 23.162(6) and 23.167(10), Florida Statutes (1981). Additionally, an examination of the Station Agreement entered into by and between Greyhound Lines, Inc., a California corporation with offices at 431 Greyhound Tower, Phoenix, Arizona, and William Boyd Bryant, d/b/a William B. Bryant Company, which has a contractual agreement to provide services at Respondent Greyhound Lines, Inc., Ocala, Florida terminal, is not an employer of either Michael Brown, Petitioner, or William B. Bryant Company. Based thereon, it is determined that Respondent Greyhound Lines, Inc. is not an employer of Petitioner within the The meaning of the Human Rights Act of 1977, as amended. Sections 23.162(6) and 23.167(1), Florida Statutes (1981).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition filed herein. RECOMMENDED this 21st day of June, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.
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.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents held valid Pari-Mutuel Wagering occupational licenses as greyhound judges that had been issued by Petitioner. Respondent, Robert C. Crawford, holds license number 0131528-6035 and was, at all times pertinent hereto, the Presiding Judge at Biscayne Kennel Club. Respondent, Robert E. May, holds license number 0131748-6035 and was, at all times pertinent hereto, the Associate Judge at Biscayne Kennel Club. Biscayne Kennel Club is a pari-mutuel facility located in Dade County, Florida, that is licensed by Petitioner. Petitioner has duly enacted a rule 1/ which provides that three judges have general supervisory authority and responsibility over all facets directly involved in the running of pari-mutuel races, including other race officials. Two of these judges, the "presiding judge" and the "associate judge" are so designated by the pari-mutuel facility. The third judge, referred to as the "division judge", is designated by the Petitioner. At all times pertinent to these proceedings, the three judges, acting as a collegial body, had the responsibility and the authority to supervise the Racing Secretary, the Paddock Judge, the Chart Writer, and all other racing officials at Biscayne Kennel Club. During the evening performance of April 30, 1991, Biscayne Kennel Club conducted 13 separate greyhound races upon which wagering was permitted. For the evening performance of April 30, 1991, Respondent Crawford and Respondent May were serving at Biscayne Kennel Club in their official capacities as Presiding Judge and Associate Judge, respectively. At the times pertinent hereto, including the evening performance of April 30, 1991, Douglas D. Culpepper was the Division Judge at Biscayne Kennel Club. The 13th race was conducted without apparent incident, the three judges agreed on the order of finish, and the official results were posted as agreed by the three judges. The official results reflected that the greyhound wearing blanket number 8 finished first, the greyhound wearing blanket number 5 finished second, the greyhound wearing blanket number 6 finished third, and the greyhound wearing blanket number 4 finished fourth. The greyhound wearing blanket number 7 was officially charted as having finished eighth. The 13th race on April 30, 1991, concluded at approximately 11:12 P.M. and was the last race of the evening. At approximately 11:25 P.M., Norman T. Campbell, the general manager of Biscayne Kennel Club, telephoned Respondent Crawford and asked that Respondent Crawford, Respondent May, and Mr. Culpepper meet him in his office. This request from Mr. Campbell was in response to a report he had received that three greyhounds had been mis-identified when the greyhounds were blanketed under the supervision of the Paddock Judge immediately prior to the running of the 13th race. The three greyhounds that had been reportedly mis-identified were: NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION. The following trainers attended the meeting in Mr. Campbell's office that followed the 13th race: Maggie Spears, the trainer of STRIDDEN RITE; Joel Fries, the trainer of NY DAMASCUS; and Jeanne Ertl, the trainer of MPS SEBASTION. These three trainers were in agreement that their three greyhounds had been mis-identified. These three trainers agreed that the following errors occurred: (1) NY DAMASCUS was assigned the fifth post, but was wearing blanket number 7; (2) STRIDDEN RITE was assigned the sixth post, but was wearing blanket number 5; and (3) MPS SEBASTION was assigned the seventh post, but was wearing blanket number 6. These three trainers agreed that the official results were in error as follows: (1) NY DAMASCUS officially finished second, but he actually finished eighth, twenty lengths off the pace; (2) STRIDDEN RITE officially finished third, but he actually finished second by a nose; and (3) MPS SEBASTION officially finished eighth, but he actually finished third. The three trainers were in agreement that the prize money going to the trainer/owner of the greyhound should be redistributed to reflect the actual finish of the race. Instead of second place money, the trainer of NY DAMASCUS agreed to take nothing. Instead of third place money, the trainer of STRIDDEN RITE received second place money. Instead of no money, the trainer of MPS SEBASTION received third place money. The decision was made at the meeting of April 30, 1991, to redistribute the prize money awarded to the trainer/owner consistent with the agreement of the trainers. BISCAYNE KENNEL CLUB was closing and the public had disbursed by the time the alleged mis-blanketing was reported to Mr. Campbell. By the time the racing officials were made aware of the alleged mis-blanketing on the night of April 30, 1991, it was too late to recall the official results or to redistribute the payoff that had been made to the public pursuant to the official results that had been posted. In addition to the three trainers, the other persons in attendance at the meeting in Mr. Campbell's office following the 13th race on April 30, 1991, were: Mr. Campbell, Respondent Crawford, Respondent May, Mr. Culpepper, Kay Spitzer, and Jerry Escriba. Ms. Spitzer was the president of Biscayne Kennel Club. Mr. Escriba was acting in the capacity as the Paddock Judge. Mr. Escriba was not, as of April 30, 1991, licensed by Petitioner to act in the capacity as Paddock Judge. Mr. Escriba had attempted to become licensed, but had been unable to do so because Petitioner was temporarily out of the forms necessary to process the application. However, the Division Director of the Division of Pari-Mutuel Wagering had given his permission for Mr. Escriba to serve as Paddock Judge for the meet at Biscayne Kennel Club that included the races on April 30, 1991. While Mr. Escriba had not previously served as a Paddock Judge, he was qualified by experience and training to serve in that capacity. Mr. Escriba had participated in pari-mutuel events for approximately 13 years and had held a variety of positions all related to the management and control of racing greyhounds. Mr. Escriba had observed the Paddock Judge perform his duties on thousands of occasions. Before Mr. Escriba was assigned the position of Paddock Judge, he was subjected to a two week training period under the supervision of Respondent Crawford and a former experienced Paddock Judge named Chris Norman. Respondent Crawford and Respondent May knew Mr. Escriba well and had confidence in his abilities. The Paddock Judge is a racing official who has the responsibility to ensure that the greyhounds participating in a pari-mutuel event are properly identified and that each greyhound runs its assigned race in its assigned post position. The Paddock Judge, in keeping with his responsibilities, is required to engage in a series of examinations of each greyhound which are designed to ensure proper identification. Each greyhound has what is referred to as a "Bertillon card", which contains measurements, markings, and other identifying information unique to each greyhound. The Paddock Judge also examines the greyhound identification tattoo which is inscribed upon the ear of each greyhound. After the Paddock Judge completes the identifying process, a tag which designates the race and the post position in which the greyhound is to participate is placed upon the greyhound's collar. Just prior to the race, when a greyhound that is about to race is on the viewing stand, the Paddock Judge executes his final check by ensuring that the tag upon the greyhound's collar corresponds to the race and the blanket number that has been assigned to the greyhound. At the meeting of April 30, 1991, and at the formal hearing, Mr. Escriba adamantly maintained that the alleged mis-blanketing of the greyhounds had not occurred. Mr. Escriba maintained that all identifying procedures had been properly followed and that the trainers were mistaken. Mr. Escriba's only explanation as to how such an alleged mis-identification could have occurred was that he was operating shorthanded, with only twelve leadouts instead of the usual complement of sixteen. Mr. Escriba asserted at the hearing that the twelve leadouts were enough to perform the work. Mr. Culpepper had little doubt after the meeting in Mr. Campbell's office broke up in the early morning hours of May 1 that the mis-identification had occurred and he believed that Mr. Escriba had not followed the rigid identification procedures. Because it was too late to redistribute the pay out to the public and because there was a conflict between the trainers and the Paddock Judge as to what had happened, Respondent Crawford, Respondent May, and Mr. Culpepper decided that the best course of action was to seek guidance from the highest state official available by telephone. The official contacted was Allen P. Roback, the Regional Supervisor of the Bureau of Operations of the Divisions of Pari-Mutuel Wagering. Mr. Roback had general supervisory authority over the operation of Biscayne Kennel Club and direct supervisory authority over the Respondents. Mr. Roback was contacted by telephone shortly after midnight, in the early morning hours of May 1, 1991. During the telephone call in the early morning hours of May 1, 1991, Mr. Roback talked with Mr. Campbell and Mr. Culpepper. Mr. Roback instructed them that the matter of the 13th race should be handled in the same manner as an incident generally referred to as the "photo finish" incident. The "photo finish" incident occurred at Biscayne Kennel Club in December of 1990 during a race for which Mr. Roback served as the Division Judge, Respondent Crawford served as the presiding Judge, and Respondent May served as the Associate Judge. Following the subject race, the judges declared the official results relating to the first and second place winners. A photo of the finish was provided the judges approximately eight minutes after the race concluded and revealed that the greyhound that had been declared the first place winner had actually been beaten by the greyhound that had been declared the second place finisher. Notwithstanding the undisputed photographic evidence that the official results were wrong, it was decided by the judges that the official results would not be changed. The pari-mutuel pay out to the public was made on the basis of the official results. However, the prize money to the trainers/owners of the greyhounds was distributed based on the actual finish of the first and second greyhounds as revealed by the photograph. Mr. Roback had been clear in his instruction not to change the official results following the "photo finish" incident. The two greyhounds that finished first and second in that race continued to race thereafter with their respective performance lines as indicated by the official and not the actual order of finish. After Mr. Culpepper had spoken with Mr. Roback, Respondent Crawford and Respondent May were advised that the Division of Pari-Mutuel Wagering would be conducting an official investigation into the events surrounding the conduct of the 13th race at Biscayne Kennel Club on April 30, 1991. Respondent Crawford and Respondent May were not directed to change the official results of the 13th race, nor were they told to withhold the three greyhounds involved in the dispute from further participation in pari-mutuel events pending the investigation. Respondent Crawford and Respondent May reasonably believed that the official results of the 13th race were final until otherwise notified by the Division of Pari-Mutuel Wagering. On May 1, 1991, during normal business hours, the alleged mis- blanketing incident was assigned to Marilyn (Lyn) Farrell for investigation. Ms. Farrell is an investigator for Petitioner's Bureau of Investigations. One of Ms. Farrell's assignments was to make a determination of the actual order of finish of the 13th race. Ms. Farrell's investigative report was completed on May 9, 1991. In that report, Ms. Farrell correctly concluded that the mis- blanketing of the three greyhounds had occurred, that the official results were wrong, and that the actual order of finish was that agreed to by the three trainers of the greyhounds involved. Mr. Roback and Ms. Farrell each visited Biscayne Kennel Club during the course of the investigation. Mr. Roback first spoke with Gary Duell, the Racing Secretary, who told him to talk with Respondent Crawford. Respondent Crawford asked Mr. Roback how much trouble he was in and asked him to meet with Mr. Campbell. While the investigation was pending, Mr. Escriba told Respondent Crawford that on April 13 there was confusion in the area where the greyhounds who were to run the 13th race were being blanketed. Mr. Escriba said that he panicked and released the greyhounds to the track before checking all of their tags when the bell for the 13th race rang. Respondent Crawford passed this information on to Mr. Roback. There was no discussion between Mr. Roback and the Respondents as to whether the racing lines should differ from the official results of the race. In the period between April 30, 1991, the date of the incident, and May 9, 1991, the date Ms. Farrell completed her investigation, NY DAMASCUS, MPS SEBASTION, and STRIDDEN RITE continued to participate at pari-mutuel events at Biscayne Kennel Club. A racing line for each greyhound scheduled to run in a pari-mutuel event is published in the event's program. The program is distributed to the public. Members of the public then use the information contained in the racing line to determine their bets. A racing line gives certain information pertaining to the greyhound, including the greyhound's recent performance history. Because the information is used to formulate wagers, it is important that the information is accurate. The chart writer is the official with direct responsibility for the accuracy of the racing lines. The chart writer at Biscayne Kennel Club at the times pertinent to this proceeding was Mildred A. Ketchum. At Biscayne Kennel Club on May 3, 1991, MPS SEBASTION participated in the 6th race, STRIDDEN RITE participated in the 10th race, and NY DAMASCUS participated in the 15th race. The racing line for each of these greyhounds contained in the official racing program published by Biscayne Kennel Club for the races held May 3, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 7, 1991, MPS SEBASTION participated in the 4th race. The racing line for MPS SEBASTION contained in the official racing program published by Biscayne Kennel Club for the races held May 7, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 8, 1991, STRIDDEN RITE participated in the 1st race. The racing line for STRIDDEN RITE contained in the official racing program published by Biscayne Kennel Club for the races held May 8, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. On May 9, 1991, John Pozar, Petitioner's Bureau Chief for the Bureau of Investigation, called Respondent Crawford, indicated that the investigation had confirmed that the mis-identification had occurred, and instructed him to scratch NY DAMASCUS from a race that was scheduled for later that day. Mr. Pozar also instructed Respondent Crawford to change the racing lines for the three greyhounds to reflect their correct performances on April 30, 1991. This was the first direction from Petitioner as to the results of the investigation or as to the action that should be taken. Respondents took immediate action to comply with Mr. Pozar's instructions. The correct performance lines for NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION in the 13th race at Biscayne Kennel Club did not appear in any Biscayne Kennel Club Program until May 11, 1991. Respondent Crawford, Respondent May, and Mr. Culpepper, as the three judges, had supervisory responsibility and authority over the chart writer and could have ordered her to change the performance lines for the three greyhounds involved in the incident of April 30, 1991, at any time between April 30 and May 9. The three judges did not act to change the performance lines between April 30 and May 9 in deference to the investigation being conducted by Petitioner's investigators. In the matinee program for May 11 for the 12th race, the racing line for NY DAMASCUS accurately reflects that it finished eighth in the 13th race on April 30, 20 lengths off the pace. In contrast, the racing lines for NY DAMASCUS contained in the May 3 program erroneously reflected that NY DAMASCUS finished second by a nose. In the evening program for May 11 for the 13th race, the racing line for STRIDDEN RITE accurately reflects that it finished second by a nose on April In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 8 programs erroneously reflected that STRIDDEN RITE finished third. In the evening program for May 11 for the 2nd race, the racing line for MPS SEBASTION accurately reflects that it finished third, five lengths off the pace, on April 30. In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 7 programs erroneously reflected that MPS SEBASTION finished eighth, twenty lengths off the pace. Petitioner has adopted no rule which establishes the circumstances under which racing lines can vary from official results in a case such as this. The three judges have to use their judgment as to the appropriate course of action to take in resolving a charge of mis-blanketing. Official results of a race are not to be overturned by the judges in the absence of competent, substantial evidence that the official results are wrong. The record of this proceeding did not establish that these Respondents failed to act within the scope of their discretion in deferring to the investigation by Petitioner. Likewise, the record fails to establish that the Respondents failed to exercise their supervisory authority and responsibility by waiting to change the racing lines until after the official investigation was completed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the administrative complaint brought against Respondent, Robert C. Crawford, in Case No. 91-6682 and which dismisses the administrative complaint brought against Respondent, Robert E. May, in Case No. 91-8107. DONE AND ORDERED this 29th day of July, 1992, 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 29th day of July, 1992.
Findings Of Fact On or about November 9, 1983, the Respondents submitted applications to petitioner for the issuance of thoroughbred horse owner's licenses. On the application, Kourkoumelis represented that he owned 100 percent interest in Rozen, Inc., and further represented that Rozen, Inc., owned four thoroughbred race horses, including the horse "Hexgreave Star." The applications were processed by Petitioner, and Kourkoumelis was issued license Number 0171691, and Rozen, Inc., was issued license Number 0231210. The foal papers on Hexgreave Star, which are the official ownership papers of the horse, reflect that the horse was acquired by Rozen, Inc., from Cynthia Elliott on August 7, 1983. That date reflects the last transfer of the horse listed on the foal papers, up to and including the date of the hearing. Hexgreave Star was foaled in England and shipped to the United States sometime around November of 1982. A statement from the International Horse Services reveals that K. Richardson of Jubilee Farms was billed for the shipping expenses. However, there is no competent credible evidence of record to establish the identity of the true owner of Hexgreave Star at the time he was shipped from England. The horse was subsequently vaned from its port of entry in New York to Hialeah Race Track in the care of trainer Robert Elliott, the husband of Cynthia Elliott. On November 10, 1982, the Jockey Club issued foal papers to Robert Elliott, registering him as the first owner of the horse in the United States. Elliott was the owner of record of Hextreave Star until February 7, 1983, when ownership of the horse was transferred to his wife, Cynthia Elliott, for "$1.00 and other consideration." From that date forward, until August 7, 1983, Cynthia Elliott was the listed owner of Hexgreave Star. Financial support for Hexgreave Star was initially provided by a wire transfer into the Elliotts' joint bank account in the amount of $2,000 on or about November 22, 1982. This money was wired from an account in Liechtenstein maintained in the name of an organization known as "Fallig Finanz." There is no evidence of record in this cause to connect the operation of Fallig Finanz with either Kenneth Richardson, Kourkoumelis, or the Elliotts. A second $2,000 was wired into the Elliotts' account from Fallig Finanz at the end of the month of November, 1982. Part of this money was used to open a trainer's account for Hexgreave Star in Robert Elliott's name. Checks from that account were used to pay for the care of Hextreave Star in December, 1952, and January, 1953. During the months of November and December of 1982 and January of 1983, Hexgreave Star raced in Florida under Robert Elliott's name. The ownership of the horse was transferred to Cynthia Elliott on February 7, 1983, in anticipation of Robert Elliott's return to England. No money was exchanged between Mr. and Mrs. Elliott at the time of the transfer. After the transfer of the horse's ownership from Mr. Elliott to Mrs. Elliott, Kenneth Richardson and Cynthia Elliott opened a joint checking account at the Southeast Bank. Richardson initially deposited $2,000 into that account which was used for the upkeep and maintenance of Hexgreave Star. The account was generally used as a horseman's account from March until June, 1983. On April 1, 1983, an additional $2,000 was wired into the account from Liechtenstein. After February 7, 1983, Hexgreave Star raced under Cynthia Elliott's name in Florida; at Monmouth Park, New Jersey; Penn National Race Track in Pennsylvania; and Belmont Park in New York. The racing accounts of Hexgreave Star reflect that the horse earned in excess of $47,000 in purses during that time. Approximately $30,000 of that money was paid to Kenneth Richardson by Mrs. Elliott in two separate payments on July 28 and August 4, 1983. Cynthia Elliott met Peter Kourkoumelis through her husband, Robert Elliott, on January 31, 1982. Mrs. Elliott saw Kourkoumelis with Kenneth Richardson on two occasions at Gulfstream Park in 1983. Throughout the time that Cynthia Elliott was racing Hexgreave Star under her own name, she was frequently in contact with Kenneth Richardson. During the summer of 1983, beginning with the Hialeah meeting, questions regarding the identity and ownership of Hexgreave Star were raised with Cynthia Elliott by the Thoroughbred Racing Protective Bureau (TRPB) and the Jockey Club. Beginning in June of 1983, Mrs. Elliott notified Richardson of these inquiries, and continued to keep Richardson apprised as the TRPB continued its investigation. In the last week of July, 1983, Cynthia Elliott met with Kenneth Richardson, his son Andrew, and Peter Kourkoumelis at the Floral Park Motel in Belmont, New York, to discuss the fortunes of Hexgreave Star. In a subsequent meeting, Mrs. Elliott presented Kenneth Richardson with a list of expenses and deductions, and the remaining funds from the horse's winnings. Rozen, Inc., was incorporated in Florida on August 1983. Kourkoumelis was listed as the corporation's sole director and officer. On August 3, 1983, Cynthia Elliott signed a bill of sale purporting to transfer her interest in Hexgreave Star to Rozen, Inc. Also on August 3, 1983, an agreement was entered into between Cynthia Elliott and Rozen, Inc., for the care and training of Hexgreave Star. Present at the signing of the agreement were Cynthia Elliott; Peter Kourkoumelis, who signed the agreement as president of Rozen, Inc.; and Kenneth Richardson and Andrew Richardson. By the terms of the agreement, Cynthia Elliott was authorized to train Hexgreave Star, but Rozen, Inc., was to make major managerial decisions concerning the horse. The agreement provided that the horse ". . . is the sole property of Rozen, Inc.", and that all prize money won by the horse was payable to Rozen, Inc., less 10 percent in fees, $30 per day training fees, and blacksmith and veterinarian bills. After the execution of the August 3, 1983, agreement, Cynthia Elliott continued to pay for the care and upkeep of Hexgreave Star from funds left in the track account. On August 9, 1983, Mrs. Elliott purchased an insurance policy on Hexgreave Star in the amount of $50,000. The horse was insured in the name of Rozen, Inc., and the premium of $3,612.50 was paid by Mrs. Elliott from funds left in the track account. Through the middle of September, 1983, Mrs. Elliott provided for the care and maintenance of Hexgreave Star through funds that were left in the track account. She itemized her expenses and showed them to Richardson on August 19, 1983, in England. By separate letters dated September 22, 1983, Cynthia Elliott notified Kenneth Richardson and Peter Kourkoumelis of her decision to resign her position with Rozen, Inc. There is no evidence of record to establish what, if any, transaction occurred concerning Hexgreave Star between September 22, 1983, and November 9, 1983, the date on which Kourkoumelis and Rozen, Inc., allegedly falsified their license applications. There is no direct evidence, or, indeed, any credible evidence at all, to establish that Kourkoumelis was aware of the manner in which Hexgreave Star had been handled between Kenneth Richardson, and Robert and Cynthia Elliot. Further, there is no competent credible evidence of record to establish either that anyone other than Peter Kourkoumelis and Rozen, Inc., owned Hexgreave Star on November 9, 1983.
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on November 29, 1978 a horse trained by the Respondent was entered and ran in the sixth (6th) race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari-Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
The Issue The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, 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, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date. 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's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample. Urine sample 738627 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. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.
The Issue Whether the FHBPA, FTBOA, and OBS have standing to bring this unadopted rule challenge; and, if so, whether their petition was timely; and, if so, whether the Division’s determination that a new summer jai alai permit was made available and that Calder is eligible for a new summer jai alai permit pursuant to section 550.0745(1), Florida Statutes (2019), is based on unadopted rules.
Findings Of Fact Parties/Standing The Division is the agency charged with regulating pari-mutuel wagering and issuing pari-mutuel permits under the provisions of chapter 550, including section 550.0745 pertaining to summer jai alai permits, and rule 61D-4.002. Calder is a pari-mutuel permitholder authorized to operate thoroughbred horse racing and conduct pari-mutuel pools on exhibition sports in Miami-Dade County pursuant to chapter 550. Calder has been a pari- mutuel permitholder authorized to operate thoroughbred horse racing in Miami-Dade County since 1971. The Division issued a new summer jai alai permit to Calder on February 9, 2018. The Division did not provide FHBPA, FTBOA, or OBS with formal notice that Calder had applied for a new summer jai alai permit or that the Division intended to issue a new summer jai alai permit to Calder. The Division subsequently licensed Calder to operate this summer jai alai permit in fiscal years 2018/2019 and 2019/2020. Calder is currently licensed to operate both summer jai alai and thoroughbred racing at its Miami-Dade County facility pursuant to the permits and licenses issued by the Division to Calder for thoroughbred horse racing and summer jai alai. Calder is also currently licensed to operate slot machine gaming. Calder receives approximately $85,000,000 in annual gross revenues from slot machine gaming, making this the most profitable activity Calder conducts at its facility. FHBPA is not a pari-mutuel permitholder. FHBPA is a Florida not-for- profit corporation and an association whose membership consists of a majority of horse owners and trainers (approximately 5,000 to 6,000 "horsemen"), whose horses race at thoroughbred race meets operated by the licensed thoroughbred permitholders in South Florida. Pursuant to section 551.104(10)(a)1., Florida Statutes, no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari-mutuel permit unless the applicant has on file with the Division a binding, written agreement with FHBPA governing the payment of purses on live thoroughbred horse races conducted at the licensee’s pari- mutuel facility. FHBPA and Calder have a contractual agreement, whereby Calder must run 40 days of thoroughbred horse races under its thoroughbred license. Under the current agreement between Calder and FHBPA, Calder is required to pay FHBPA a sum equal to ten percent of Calder’s gross slot machine revenues to be used for purses. This amounts to approximately $9,000,000 that FHBPA receives from Calder on an annual basis. This contractual agreement expires in 2020. Since 2014, Calder has satisfied its obligation to run a 40-day thoroughbred racing schedule by contracting with a third party, Gulfstream Park, to run races between October and November of each year. FTBOA is not a pari-mutuel permitholder. FTBOA is a Florida not-for- profit corporation, and the statewide trade association representing the interests of Florida thoroughbred breeders and owners in Florida. Horses owned and/or bred by FTBOA members participate in the thoroughbred horse races at Calder’s race course. FTBOA is designated in section 550.2625(3)(h) as the administrator of the thoroughbred breeders’ awards program established by the Florida Legislature in sections 550.26165 and 550.2625(3). As part of this program, FTBOA is responsible for the payment of breeders’ awards on thoroughbred races conducted in Florida. Pursuant to section 550.26165(1), the purpose of breeders’ awards is to "encourage the agricultural activity of breeding and training racehorses in this state." Pursuant to section 551.104(10)(a)1., no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari- mutuel permit unless the applicant has on file with the Division a binding written agreement with FTBOA governing the payment of breeders’, stallion, and special racing awards on live thoroughbred races conducted at the licensee’s pari-mutuel facility. FTBOA receives approximately $1,500,000 from Calder each year in breeders’ awards as a result of the Calder racing handle and slot machine revenue. OBS holds a limited intertrack wagering pari-mutuel permit pursuant to section 550.6308 that authorizes it to conduct intertrack horse racing at its Ocala facility. OBS also holds a non-wagering horse racing permit pursuant to section 550.505, and a thoroughbred horse sales license pursuant to chapter 535, Florida Statutes. OBS sells thoroughbred horses at its facility located in Ocala. OBS is the only licensed Florida-based thoroughbred auction sales company in Florida, and it conducts five thoroughbred horse auctions annually. OBS has no pari-mutuel permits located in Miami-Dade County, Florida. On July 31, 2018, Calder filed a Petition for Declaratory Statement with the Division regarding whether it can discontinue the operation of its thoroughbred races and instead operate a full schedule of jai alai performances in order to maintain its eligibility to continue to conduct slot machine gaming. In its petition, Calder made clear its intention to discontinue live thoroughbred horse racing, stating: "Calder desires to discontinue live thoroughbred racing and to obtain a license to operate a full schedule of live jai alai games under its summer jai alai permit. Calder intends on conducting live jai alai games at the same physical location or piece of property where it currently conducts thoroughbred racing." On October 23, 2018, the Division issued its Final Order Granting Declaratory Statement, concluding that Calder may substitute jai alai games in lieu of live horse racing. In its Final Order, the Division also granted FTBOA’s and OBS’s motions to intervene, concluding that FTBOA met its burden of demonstrating associational standing, and that OBS demonstrated its standing pursuant to Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). The Division’s Final Order was affirmed on appeal in Florida Thoroughbred Breeders’ Association, Inc. v. Calder Race Course, Inc., 283 So. 3d 843, 845 (Fla. 1st DCA 2019). Calder intends to replace its thoroughbred permit with its jai alai permit as the predicate for maintaining its slot machine gaming permit. An incentive for Calder to substitute its jai alai permit for its thoroughbred permit is that if it stops racing horses after December 2020, Calder will be under no obligation to share the millions of dollars in revenue it receives through its slot machines with FHBPA or FTBOA. FHBPA, FTBOA, and their members will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing to qualify for the continued operation of its slot machine facility. Millions of dollars that would otherwise be available to FHBPA, FTBOA, and their members through the payment of purses and awards from thoroughbred racing will be lost if Calder is permitted to substitute its underlying pari- mutuel activity from racing thoroughbreds to conducting jai alai games. FHBPA’s and FTBOA’s substantial injury is of a type or nature which this proceeding is designed to protect. Likewise, OBS will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing. The demand to breed and purchase racehorses, and the value of breeding and selling thoroughbred horses, will decrease significantly as a consequence of Calder discontinuing thoroughbred horse racing and replacing the races with summer jai alai games. In addition, as a guest track, OBS retains seven percent of the wagers placed at OBS on thoroughbred races in Florida. OBS intertrack wagering generally handles approximately $1,000,000 on thoroughbred races conducted at Calder and Tropical Park, which directly results in revenue to OBS. OBS’s substantial injury is of a type or nature which this proceeding is designed to protect. Calder’s Summer Jai Alai Permit Application and the Division’s Proper Calculation of "Play or Total Pool" Under Section 550.0745 On August 31, 2017, Calder submitted an application to the Division for the issuance of a new summer jai alai permit pursuant to section 550.0745(1). The parties stipulate that, at all times material hereto, Calder was a qualified applicant as to all statutory requirements, but for the dispute as to whether a summer jai alai permit was "made available" pursuant to the second sentence in section 550.0745(1). Section 550.0745(1) provides in pertinent part as follows: 550.0745 Conversion of pari-mutuel permit to summer jai alai permit.- The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari- mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutual play from the operation of such pari- mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May 1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such county. If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements. Accompanying Calder’s application was a cover letter stating that the application was for the summer jai alai permit associated with state fiscal years 2005/2006 and 2006/2007. The determination of whether the Division properly granted Calder a new summer jai alai permit pursuant to section 550.0745(1) turns on whether a new summer jai alai permit was "made available" for issuance in Miami- Dade County associated with state fiscal years 2005/2006 and 2006/2007. Whether a new summer jai alai permit was made available, in turn, centers on whether there was a single pari-mutuel permitholder with the "smallest play or total pool" within the county for the two consecutive fiscal years of 2005/2006 and 2006/2007. FHBPA, FTBOA, and OBS maintain that no new summer jai alai permit was made available for issuance in Miami-Dade County for state fiscal years 2005/2006 and 2006/2007, because there was no single Miami-Dade permitholder that had the "smallest play or total pool" in Miami-Dade County during those two consecutive fiscal years. The disagreement between the parties concerning the existence of an available permit with the "smallest play or total pool" in Miami-Dade for the fiscal years 2005/2006 and 2006/2007 centers on their different methods of interpreting section 550.0745(1) and disagreement regarding the types of wagers the Division must use in its calculation of a permitholder’s "play or total pool" pursuant to section 550.0745(1). For purposes of this case, the various types of wagers are summarized as follows: Wagers placed at a permitholder’s facility into the pool conducted by the permitholder on its own live performance are called "live on-track wagers." In addition to wagers placed at a particular facility on its live races or games, bettors may place wagers on races or games occurring offsite through intertrack wagering, which allows bettors at a guest-permit facility in Florida to bet on a race or game transmitted from and performed live at another host- permit facility in Florida. The facility holding the live event is referred to as the "host" track, and the facility taking the wager on the event being held elsewhere is referred to as the "guest" track. Wagers placed at the facility of an out-of-state entity on a live event conducted by a Florida host-permitholder are called "simulcast export wagers." Wagers placed at the facility of a Florida permitholder on a live event occurring at an out-of-state facility are called "simulcast import wagers." Wagers placed at the facility of a Florida guest permitholder on a live event, conducted at an out-of-state facility that is being rebroadcast through a Florida host permitholder’s facility to the Florida guest-permitholder’s facility, are called "intertrack simulcast as a guest." The Florida facility rebroadcasting the out-of-state signal is the intertrack simulcast in-state host. The Division’s calculations of "smallest play or total pool" of permit holders in Miami-Dade County for the two consecutive fiscal years of 2005/2006 and 2006/2007 included the following three types of wagers, only: (1) live wagers; (2) intertrack wagers (a/k/a intertrack wagers as a host); and (3) simulcast export wagers. The Division did not include intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers in its calculations. In the state fiscal years 2005/2006 and 2006/2007, five or more pari- mutuel permitholders were authorized and licensed by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County. None of them applied to convert their permits to summer jai alai permits. The Division initially determined that West Flagler had the "smallest play or total pool" of permit holders in Miami-Dade County for the state fiscal years 2005/2006 and 2006/2007; and, therefore, concluded that a summer jai alai permit was made available in Miami-Dade County. On February 9, 2018, based on the Division’s determination that Calder was a qualified applicant under chapter 550, and the rules promulgated thereto, and that a permit was available in Miami-Dade County, the Division approved Calder’s application and issued Calder a summer jai alai permit. On November 18, 2018, Calder received an operating license to conduct a full schedule of summer jai alai performances in May and June 2019. On December 9, 2018, the Division received an e-mail from FHBPA’s counsel regarding "Bet Miami," a greyhound dog racing permitholder located in Miami-Dade County, which was authorized to conduct pari-mutuel pools on exhibition sports in both Miami-Dade and Broward Counties in the state fiscal year 2005/2006, and in Miami-Dade County in the state fiscal year 2006/2007. In response to this e-mail, the Division reviewed its records, confirmed the dates that "Bet Miami" operated in Miami-Dade County in the state fiscal year 2005/2006, and calculated the amount that "Bet Miami" pooled in Miami-Dade County in this fiscal year. The Division also reviewed the operating licenses for each of the permitholders in Miami-Dade and Broward Counties and confirmed that "Bet Miami" operated in Miami-Dade County during the entire fiscal year of 2006/2007.1 The Division corrected its data to reflect that "Bet Miami," in fact, had the "smallest play or total pool" in Miami-Dade County for the fiscal years 2005/2006 and 2006/2007. The Division now takes the position that "Bet Miami" had the "smallest play or total pool" in Miami-Dade County for the fiscal years 2005/2006 and 2006/2007. "Bet Miami" declined to convert its greyhound dog racing permit to a summer jai alai permit. The "Bet Miami" permit was never converted nor was an application to convert the "Bet Miami" permit to a summer jai alai permit pursuant to section 550.0745 ever received by the Division. Calder built a jai alai fronton in Miami-Dade County and conducted its first jai alai meet in May and June 2019, pursuant to its operating license. On May 15, 2019, Calder received an operating license to conduct a full schedule of jai alai performances in August and September 2019. FHBPA, FTBOA, and OBS contend that the Division erred in failing to consider all the various types of wagers in its calculation of "smallest play or total pool." According to FHBPA, FTBOA, and OBS, had the Division considered all the various types of wagers, no permit would be available for the fiscal years 2005/2006 and 2006/2007. 1 There is no dispute over the authenticity and accuracy of the financial information supplied by the Division’s annual reports or of the authenticity and accuracy of the "simulcast export" figures supplied by the Division. As set forth in the Recommended Order issued by the undersigned in DOAH Case No. 19-1617, the persuasive evidence presented at hearing established that the Division properly considered only live on-track wagers, intertrack wagers, and simulcast export wagers in its calculations of"smallest play or total pool" under section 550.0745(1). This is because pari-mutuel pools are only formed at the host permitholder’s track where the live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county. Had the Division included the other types of wagers (i.e., intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers) in its calculations, the handle for these various wager types would be counted twice--at the host and guest tracks. Double-counting the wagering handle would result in the Division substantially overstating the amount of handle received by permitholders.2 As set forth in the Recommended Order in DOAH Case No. 19-1617, the Division properly found that "Bet Miami" had the "smallest play or total pool" based on its calculation of the permit holders’ in Miami-Dade County live wagers, intertrack wagers as a host, and simulcast export wagers for the two consecutive fiscal years 2005/2006 and 2006/2007.3 2 All wagering data is compiled by a totalizator system, such as AmTote, which calculates the overall amount of "handle" collected by each pari-mutuel facility for each transaction. The Division utilizes a sub-system called "Central Monitoring System" ("CMS"), which captures the totalizator wagering data and applies it to a racing monitoring system to calculate the overall handle from each pari-mutuel facility. The Division uses the CMS report to calculate the total amount of wagering handle pooled by a facility in state fiscal years, and together with a review of the pari-mutuel licenses, determines whether a summer jai alai permit was "made available" in that county for the purpose of section 550.0745(1). "'Handle' means the aggregate contributions to pari-mutuel pools." § 550.002(13), Fla. Stat. Handle is not equivalent to revenue or profitability, and a facility’s revenue has no impact on the calculation of a facility’s "play or total pool." 3 As discussed more fully in the Conclusions of Law below, the Division’s method of calculating the "smallest play or total pool" for purposes of section 550.0745(1) is consistent with the clear, unambiguous, and plain language of section 550.0745(1), and Florida appellate decisions.
The Issue Whether the Respondent committed the violations set forth in the Administrative Complaint dated February 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: 1. The Division is the state agency charged with regulating pari-mutuel wagering pursuant to Chapter 550, Florida Statutes. 2. At all times material to this proceeding, Mr. Haber held an Unrestricted "U1" General pari-mutuel wagering occupational license, number 0097388-1081, issued by the Division. Mr. Haber has held this license for 20 years, and has never been subject to discipline by the Division. 3. Mr. Haber is the owner, with his two brothers, of Haber Kennels, Inc., which was started by his father and has been in business for 30 years. 4. At the times material to this proceeding, Mr. Haber kept in the Palm Beach Kennel Club compound in Palm Beach County, Florida, greyhounds both that he owned and that were owned by others; Mr. Haber trained these greyhounds for racing at the Palm Beach Kennel Club. Mr. Haber and Dale Wilson, his helper, took care of the greyhounds, and Mr. Haber was responsible for feeding and caring for the dogs, as well as for maintaining them in "racetrack form." 5. The greyhounds were kept in two kennels in the compound, Kennel Number 11 and Kennel Number 24. Both kennels have a "turnout area" where the greyhounds are kept when they are let outside the kennel. There is no shade cover in the turnout area of Kennel 24. 6. On August 5S, 2000, Mr. Haber was responsible for caring for the greyhounds housed in Kennel 24. The dogs were let out into the turnout area after they were fed, around 10:00 a.m. The female and male greyhounds were separated, and, after a time, the females were let back into the kennel, while the males were switched to the pen that the females had just vacated. 7. After letting the female greyhounds back into the kennel, Mr. Haber and Mr. Wilson left the compound to pick up some carpet. Mr. Haber thought that Mr. Wilson had put the male greyhounds back in the kennel. 8. Mr. Haber received a telephone call at about 2:00 p.m. from Stacy McClellan, who also trains racing greyhounds at the Palm Beach Kennel Club, and she told him that there had been an accident at the kennel. Mr. Haber rushed back to Kennel 24 and found two greyhounds dead, one greyhound in convulsions and dying, and one greyhound apparently in good health. When he arrived at the kennel, Ms. McClellan and two others were pouring water on the dog that was having convulsions. Ms. McClellan described Mr. Haber as "hysterical" and "upset" when he arrived at the kennel and saw the dead greyhounds. 9. Mr. Haber moved the greyhound that was having convulsions into the air-conditioned kennel, but the dog died while he was trying to cool him down. A fourth greyhound in Mr. Haber's care was found dead in another kennel, which he reached by jumping two fences; this greyhound was named Positive Thought .? 10. Mr. Haber cut off the ears of the dead greyhounds. The ears were tattooed with marks that identified the greyhounds, and Mr. Haber kept the ears until they rotted and the tattoos were illegible. Mr. Haber attributed his actions to panic and fear, and he admitted that it was a mistake to cut the ears off the dogs. 11. Mr. Haber also buried three of the greyhounds, named Haberfield, Mask of Courage, and Tiebreak Winner, on the grounds of the compound, near a sprint track.? 12. The Division was notified of the incident by an official of the Palm Beach Kennel Club on August 30, 2000, and an investigator was sent to look into the incident. 13. As a result of the death of the greyhounds, Mr. Haber was charged in an Information with four misdemeanor counts of cruelty to animals pursuant to Section 828.12(1), Florida Statutes, and four misdemeanor counts of abandonment of an animal pursuant to Section 828.13(3), Florida Statutes. Mr. Haber plead guilty to the four counts of cruelty to animals, and, pursuant to the pleas, the court adjudicated him guilty of Count 1 of the Information and withheld adjudication on Counts 2 through 4. Counts 5 through 8 of the Information, in which Mr. Haber was charged with abandonment of an animal, were disposed of by nolle prosequi. 14. Mr. Haber was sentenced to one year's probation for Count 1 and to six month's probation for Counts 2 through 4, to run consecutively, for a total of 18 month's probation. 15. Mr. Haber was also given six-month's probation by the National Greyhound Association for cutting the ears off of the greyhounds. 16. Mr. Haber expressed remorse at the hearing for the death of the greyhounds, and he testified that leaving the greyhounds outside was accidental. He further testified that he plead guilty to Counts 1 through 4 of the Information because he wanted to get past the incident and to go on with his life. 17. Mr. Haber also testified that he plead guilty on the advice of his attorney and in reliance on her assurance that she had been told by an employee of the Division that the Division would take no action against Mr. Haber for the incident. 18. Mr. Domanic Esposito testified that Mr. Haber trained several greyhounds that he owned and that, in his dealings with Mr. Haber, Mr. Haber was very concerned with the welfare of Mr. Esposito's two greyhounds and put the best interest of the dogs before other considerations. 19. The evidence is uncontroverted that Mr. Haber plead guilty to four misdemeanor counts of cruelty to animals pursuant to Section 828.12(1), Florida Statutes, that he was adjudicated guilty of one count, and that adjudication was withheld on three other counts of cruelty to animals pursuant to Section 828.12(1), Florida Statutes. 20. The uncontroverted evidence is also sufficient to support a finding of fact that the death of the four greyhounds on August 5, 2000, was the result of a miscommunication between Mr. Haber and his helper. The evidence presented by Mr. Haber is sufficient to establish that he did not intentionally leave the greyhounds outside and without shade on a very hot day in August, and no evidence was presented by the Division to dispute Mr. Haber's contention that he had never "had a problem before this incident of losing dogs." The evidence is also sufficient to establish that Mr. Helton used poor judgment after the greyhounds died when he tried to conceal the death of the greyhounds and their identities.
Conclusions Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ann Porath, Esquire 12773 Forest Hill Boulevard Suite 209 Wellington, Florida 33414
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking Mitchell Haber's pari-mutuel wagering occupational license. DONE AND ENTERED this 4 Fh aay of June, 2001, in Tallahassee, Leon County, Florida. . yi Ahh beg. L/ DYiloae PATRICIA HART MALONO 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 49/4 day of June, 2001.
