Findings Of Fact At all times material hereto, Respondent, Richard Tortora (Tortora), held pari-mutuel wagering occupational license number 0066650, as a thoroughbred trainer. Tortora has been licensed since 1979, and has not previously been the subject of a disciplinary proceeding. Tortora was a participating trainer during the 1956 thoroughbred meet at Calder Race Course, an association authorized to conduct thoroughbred racing in the State of Florida. On August 2, 1986, Tortora was the trainer of the horse "Chief Again," the winner of the fourth race at Calder Race Course that day. Immediately following the race, the Division, consistent with its standard practice, took a urine sample from "Chief Again" for analysis by the Division's laboratory. The parties have stipulated that the chain of custody of the urine sample was not breached, and that the urine sample was properly taken, packaged and delivered to the Division's laboratory for testing. The parties have further stipulated that a portion of the urine sample was delivered to Dr. Richard Sams, Equine Testing Laboratory, College of Veterinary Medicine, Ohio State University, Columbus, Ohio, for testing on behalf of Tortora, and that such sample was properly taken, packaged, and delivered. Upon analysis, the urin sample taken from "chief Again" proved positive for the presence of the drug butorphanol, a schedule 3 narcotic. Butorphanol is a potent analgesic, traditionally used to control the intestinal pain associated with equine colic. In therapeutic dosage, butorphanol renders the animal immobile, however, at low dosages it will act as a stimulant. In reaching the conclusion that "Chief Again" was shown to have raced with the narcotic butorphanol in his system, the evidence offered on behalf of Tortora, through Drs. Sams and Maylin, has not been overlooked. Such evidence failed, however to detract from the credible and compelling nature of the Division's proof. The Division's analysis was composed of sequential screening procedures designed to initially identify the presence of an unusual substance and ultimately identify the compound. Throughout the Division's initial procedures, the urine taken from "Chief Again" was consistently identified as containing an opiate with characteristics consistent with those of butorphanol. Ultimately the Division subjected the sample to gas chromatographic/mass spectral analysis. This refined analysis confirmed the presence of butorphonal. The consistency of the Division's findings at all levels of its testing provides compelling evidence that the urine sample taken from "Chief Again" did contain the narcotic butorphonal. Following the Division's testing, Tortora requested that it furnish the balance of the urine sample taken from "Chief Again", approximately 2om1, to Dr. Richard Sams for analysis. Dr. Sams subjected the sample to gas chromatographic/mass spectral analysis and found no evidence of butorphanol. While finding no evidence of butorphanol, Dr. Sams did not conclude that the sample did not contain the narcotic, but merely that he was unable to detect its presence. According to Dr. Sams, the limited volume of urine available for testing compromised his ability to detect the presence of butorphanol. He affirmatively concluded, however, that the Division's data was properly prepared and adequate to support a positive finding of butorphanol in the sample. Dr. Maylin's testimony was premised on a review of Dr. Sams' and the Division's written test reports, he undertook no independent analysis, and was not privy to any testimony offered at hearing. Dr. Maylin opined that if butorphanol were present Dr. Sams should have detected it and, based on certain assumptions, that the Division reported a false finding because of laboratory contamination. Dr. Maylin's opinions are rejected. Dr. Sams is familiar with the equipment and procedures he utilized. He of all people is most familiar with the capabilities and reliability of that analysis. Dr. Maylin's opinion that the analysis ran by Dr. Sams had more import than Dr. Sams ascribed to it is not credible. Dr. Maylin's opinion that the Division reported a false finding is likewise not credited. Dr. Maylin's opinion was predicated on the assumption that proper testing procedures were not followed. Dr. Maylin's assumptions were incorrect. While "Chief Again's" urine was found to test positive for butorphanol, Tortora denies any knowledge of how the narcotic could have been introduced into the horse's system. According to Tortora he was unfamiliar with this narcotic until these charges were brought, and "Chief Again" was not under any medical treatment. Tortora offered no evidence, however, of what provisions he took, if any, to supervise or otherwise protect "Chief Again's" integrity.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) is a state agency charged with the duty and responsibility for regulating the pari-mutuel wagering industry in Florida and those licensed under Chapter 550, Florida Statutes. At all times material hereto, Respondent, Jack J. Garey, held pari-mutuel wagering license number 1470144-1081, was a licensed thoroughbred owner, and was a permitholder authorized to conduct horseracing at permitted facilities in the State of Florida. Calder Race Course (Calder) was, at all times material hereto, a permitholder authorized to conduct horseracing in the State of Florida. Incident to the operation of that business, Calder extended check cashing privileges to trainers, owners and other pari-mutuel wagering licensees. On or about November 3, 1997, Respondent endorsed and presented to Calder for payment two checks, each in the amount of $500.00, which were payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. Both checks, which Calder paid, were returned unpaid because the account was closed. On or about November 12, 1997, Respondent endorsed and presented to Calder for payment a check in the amount of $1,600.00 which as payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The check, which Calder paid, was, as the previous check drawn on such account, returned unpaid because the account was closed. In late November 1997, Michael Abes, the vice president of finance at Calder, spoke with Respondent regarding the returned checks and demanded repayment. In turn, Respondent acknowledged the debt and promised to repay it; however, no payments were forthcoming. On or about December 27, 1997, Respondent endorsed and presented to Calder two more checks for payment. One check was in the amount of $2,000.00 and the other in the amount of $500.00, and each was payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The checks, paid by Calder, were, as with the previous checks drawn on the same account, returned unpaid because the account was closed. Given the return of the previous checks and his discussion with Mr. Abes, it cannot be subject to serious dispute that Respondent knew when he presented the checks to Calder for payment, that the account on which the checks were drawn had been closed and that they would not be honored by the bank. Despite numerous demands, Respondent did not pay any portion of the outstanding obligation owed Calder until February 1998, when a payment of $300.00 was remitted. Subsequently, on June 5, 1998, the balance of the outstanding obligation due Calder was paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of Subsection 550.105(6), Florida Statutes, as alleged in Count I of the Administrative Complaint and imposing, as a penalty for such violation, an administrative fine of $300.00, a 30-day suspension, and exclusion from all pari-mutuel facilities in the state for the period of suspension. DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1999.
The Issue Whether the Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, is arbitrary and capricious and thus constitutes an invalid exercise of delegated authority?
Findings Of Fact The Petitioner, Hialeah, Inc., operates a race track (hereinafter referred to as the "Track") located in Dade County, Florida. The Petitioner is licensed by the Respondent. In December, 1981, the Petitioner was granted permission by letter from Bob Smith, then Director of the Respondent, the Department of Business Regulation, Division of Pari-Mutuel Wagering, to operate Tel-A-Betting. Robert Rosenburg, Director of the Respondent after Mr. Smith, also approved Tel-A- Betting in a letter to the Petitioner. The Petitioner has continuously operated Tel-A-Betting for more than six years. The Petitioner instituted Tel-A-Betting in reliance on the Respondent's approval of Tel-A-Betting. If approval had not been granted to the Petitioner from the Respondent, the Petitioner would not have established Tel-A-Betting. Tel-A-Betting is a procedure for placing wagers on races at the Petitioner's Track. Persons utilizing this system (hereinafter referred to as "Account Holders"), open an account with the Petitioner by making a deposit of $100.00 or more with the Petitioner and paying a $25.00 fee. The funds deposited with the Petitioner are received and accounted for in accounts maintained at the Track. Once an account is opened, a plastic card which contains, among other information, an account number and an "800," toll-free, telephone number is issued to the Account Holder. Wagers may then be placed with the Petitioner by the Account Holder calling the "800" number and placing a wager with a telephone operator/pari-mutuel clerk located at the Track. The Account Holder identifies himself or herself by giving the operator the account number and a code name designated by the Account Holder when the account is opened. The account number is programmed into a computer to determine whether the Account Holder has sufficient funds in the account to make the wager. If the funds in the account are sufficient to cover the wager, the wager is entered into the computer. If the Account Holder wins the wager, the payoff is entered into his or her account. Calls to place wagers through the Tel-A-Betting program can be made from anywhere in Florida and the person making the call and wager need not be physically present at the Track to make the wager. Wagers taken through Tel-A-Betting are only made on races at the Track. Tel-A-Betting allows the Petitioner to receive wagered funds as part of its pari-mutuel pool from persons located anywhere in the State of Florida. When a wager is made through Tel-A-Betting, the operator/pari-mutuel clerk cannot establish the age or identity of the person placing the wager. The Petitioner is the only race track permit holder in the State of Florida which employs Tel-A-Betting. The Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, if valid, will prohibit the Petitioner from continuing the use of Tel-A-Betting. The Respondent has not received any complaints about the use of Tel-A- Betting by minors or any other abuses. No evidence was presented that minors have made, or attempted to make, wagers through the use of Tel-A-Betting. The Respondent has not received any objections to Tel-A-Betting or complaints about unfair competition from other racetrack permit holders.
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: Petitioner, Charles W. Ward, Jr., is a co-owner, with other members of his family, of a cattle ranch in south Hendry County known as Ward Farms. Respondent, Maddox Brothers Produce, Inc., is a licensed agriculture dealer engaged in the business of brokering agriculture products in the State of Florida. As an agriculture dealer, respondent is subject to the regulatory jurisdiction of the Department of Agriculture and Consumer Services (Department). One such requirement of the Department is that all dealers post a surety bond with the Department's Division of Licensing and Bond. To this end, respondent has posted a $50,000 surety bond with Fireman's Fund Insurance Company as the surety. In addition to raising livestock, petitioner also grows watermelons on his property. Pursuant to an agreement by the parties, between April 16 and May 15, 1990, respondent harvested and then transported petitioner's watermelons to other destinations outside the state. The parties have stipulated that respondent still owes petitioner $53,980.92 as payment for the watermelons. Respondent has agreed to pay petitioner the above sum of money on or before February 15, 1991, or within fifteen days after the agency's order becomes final, whichever is later. Otherwise, payment shall be made from respondent's bond posted by the surety, Fireman's Fund Insurance Company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent, a licensed agriculture dealer, is indebted to petitioner in the amount of $53,980.92, and that such debt be satisfied in accordance with the time limitations set forth in this recommended order. Otherwise, Fireman's Fund Insurance Company shall be obligated to pay over to the Department the full amount of the bond, or $50,000. DONE and ENTERED this 24th day of January, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of January, 1991. COPIES FURNISHED: Charles W. Ward, Jr. Star Route, Box 72 LaBelle, Florida 33440 Patricia Maddox Harper 4253 Kingston Pike Knoxville, Tennessee 37919 Barbara J. Kennedy, Esquire Fireman's Fund Insurance Company Post Office Box 193136 San Francisco, California 94119-3136 Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire General Counsel Department of Agriculture 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March 1996.
Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
