The Issue The issue is whether the proposed amendment to Florida Administrative Code Rule 61D-3.001 is an invalid exercise of delegated legislative authority.
Findings Of Fact The Division is the agency responsible for enacting administrative rules within the scope of its delegated legislative authority as set forth in chapter 550, Florida Statutes, as the statutes contained therein are amended from time to time. Petitioner, FHBPA, is a Florida not-for-profit corporation whose purposes, as set forth in its Amended and Restated Articles of Incorporation filed with the Secretary of State on December 5, 2005, include, but are not limited to, the following: A. to advance, foster, and promote, generally, the sport of thoroughbred horse racing and the thoroughbred horse racing industry in the State of Florida; * * * D. to establish standards for racetrack conditions and equine care, safety, health, treatment, and well-being; * * * to foster professional integrity among horsemen and the horse racing industry and to develop a code of ethics governing the behavior of those persons engaged therein; * * * to cooperate with equine and humane organizations and public and private agencies, regulatory authorities, racing associations, racing commissions and other organizations located in Florida including, for example, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the “Division”), and its departments and sub-divisions. and the public, in formulating fair and appropriate laws, rules, regulations and conditions that affect in any manner pari-mutuel wagering and awards, and are deemed to be in the best interests of horsemen, their employees, backstretch personnel, and the horse racing industry in general, and to ensure the enforcement of such rules is fair and equitable; * * * J. to represent the interests of its members, before any local, state, or federal administrative, legislative, and judicial fora including, but not limited to, the Division with regard to all matters affecting horsemen and the horse racing industry. Currently, the FHBPA represents more than 200 Florida licensed thoroughbred horse trainers and more than 5,000 Florida licensed thoroughbred horse owners. Pursuant to its Amended and Restated Articles of Incorporation and applicable law, the FHBPA has associational standing to file and prosecute this petition challenging the proposed amendment to rule 61D-3.001 on behalf of its members. Petitioner, Gulfstream Park, is the holder of a pari-mutuel permit issued by the Division authorizing thoroughbred horse racing at its permitted facility in Broward County. It is directly and substantially affected by the proposed amendment to rule 61D-3.001. Current rule 61D-3.001(2) provides that alleged violations of chapter 550 or chapter 61D in horseracing “shall be heard by a board of stewards. Each horseracing permitholder shall establish a board of three stewards, at least one of whom shall be the state/division steward selected and hired by the division.” Current rule 61D-3.001(19) provides, in relevant part: (19) Orders. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of 60 days or less, or a fine not to exceed $1,000 is sufficient to address the violation, the stewards or division judge shall enter an order within 14 days after the hearing. The order shall include a caption, time and place of the hearing, findings of fact, statement of rules or statutes violated, and a ruling stating the length of any suspension and the amount of the fine imposed for each violation. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of greater than 60 days, or a fine of greater than $1,000 should be imposed for the violation, the stewards or division judge shall forward a recommendation to the division stating their findings of fact, statement of statutes or rules violated, and recommended penalty within 14 days after the hearing. The recommendation shall be served to each party at the time it is forwarded to the division. A party shall have 14 days from the date the recommendation is issued in which to file a response with the division prior to the entry of a final order. Subsection (19) of the current rule plainly contemplates that the stewards may make factual findings sufficient to permit them to “determine a statute or rule has been violated.” The language of subsection (19) has been in place since June 26, 2011. Section 120.80 is titled “Exceptions and special requirements; agencies.” The statute sets forth various exceptions to the requirements of chapter 120 for specific agencies in specific situations. Section 120.80(4) sets forth the exceptions and special requirements for the Department of Business and Professional Regulation. Section 120.80(4)(a) is the provision cited by the Division as one of the statutes implemented by both the current rule and the proposed amendment to rule 61D-3.001. Section 120.80(4)(a) provides: (a) Business regulation.—The Division of Pari- mutuel Wagering is exempt from the hearing and notice requirements of ss. 120.569 and 120.57(1)(a), but only for stewards, judges, and boards of judges when the hearing is to be held for the purpose of the imposition of fines or suspensions as provided by rules of the Division of Pari-mutuel Wagering, but not for revocations, and only upon violations of subparagraphs 1.-6. The Division of Pari-mutuel Wagering shall adopt rules establishing alternative procedures, including a hearing upon reasonable notice, for the following violations: Horse riding, harness riding, greyhound interference, and jai alai game actions in violation of chapter 550. Application and usage of drugs and medication to horses, greyhounds, and jai alai players in violation of chapter 550. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses, greyhounds, and jai alai players in violation of chapter 550. Suspensions under reciprocity agreements between the Division of Pari-mutuel Wagering and regulatory agencies of other states. Assault or other crimes of violence on premises licensed for pari-mutuel wagering. Prearranging the outcome of any race or game. Section 120.569 is titled “Decisions which affect substantial interests.” Subsection (1) provides as follows: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under s. 120.573 [mediation of disputes] or s. 120.574 [summary hearings]. Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases. If a disputed issue of material fact arises during a proceeding under s. 120.57(2), then, unless waived by all parties, the proceeding under s. 120.57(2) shall be terminated and a proceeding under s. 120.57(1) shall be conducted. Parties shall be notified of any order, including a final order. Unless waived, a copy of the order shall be delivered or mailed to each party or the party’s attorney of record at the address of record. Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply. (emphasis added). Section 120.57 is titled “Additional procedures for particular cases.” Section 120.57(1) sets forth “additional procedures applicable to hearings involving disputed issues of material fact” and section 120.57(2) sets forth “additional procedures applicable to hearings not involving disputed issues of material fact.” Subsection (1)(a) provides: (a) Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection, except for hearings before agency heads or a member thereof. If the administrative law judge assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary. In the absence of an exception in section 120.80 or 120.81, a case involving a disputed issue of material fact must be heard by an ALJ or an agency head or member thereof. Section 120.57(2) gives agencies greater discretion in hearings not involving disputed issues of material fact to agency discretion: ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT INVOLVING DISPUTED ISSUES OF MATERIAL FACT.— In any case to which subsection (1) does not apply: The agency shall: Give reasonable notice to affected persons of the action of the agency, whether proposed or already taken, or of its decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor. Give parties or their counsel the option, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency or to its refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction. If the objections of the parties are overruled, provide a written explanation within 7 days. An agency may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority. The record shall only consist of: The notice and summary of grounds. Evidence received. All written statements submitted. Any decision overruling objections. All matters placed on the record after an ex parte communication. The official transcript. Any decision, opinion, order, or report by the presiding officer. Section 120.80(4)(a) exempts the Division from the hearing and notice requirements of sections 120.569 and 120.57(1) for hearings before stewards “when the hearing is to be held for the purpose of the imposition of fines or suspensions” for violations of subparagraphs 1.-6. Section 120.80(4)(a) does not exempt the Division from the hearing and notice requirements of sections 120.569 and 120.57(1)(a) for license revocations. The statute requires the Division to adopt rules establishing “alterative procedures” for the stewards’ hearings under subparagraphs 1.-6. It is notable that section 120.80(4)(a) does not under any circumstance exempt the Division from section 120.57(1)(b)-(n), which provides the procedural due process rights of parties to administrative hearings involving disputed issues of material fact. The narrow exemption provided by section 120.80(4)(a) allows the Division to retain jurisdiction over cases involving disputed issues of material fact rather than refer them to DOAH or have them heard by the agency head or a member thereof as would otherwise be required by sections 120.569(1) and 120.57(1)(a). Stewards may hold formal hearings that carry the penalty of fines or suspensions for the violations listed in section 120.80(4)(a)1.-6., but must respect the procedural rights established by section 120.57(1)(b)-(n). Nothing about the interplay of sections 120.57 and 120.80 suggests that stewards lack the authority to resolve disputed issues of material fact in the hearings subject to their jurisdiction. The Legislature’s exemption of the Division from only subsection (1)(a) of section 120.57 strongly suggests the opposite. The Division’s current rule 61D-3.001 clearly anticipates that stewards will resolve disputed issues of material fact in order to determine whether a statute or rule has been violated. The text of the proposed rule amendment indicates that the Division has revised its view of the statutory authority conferred by section 120.80(4)(a). The following are the most problematic portions of the proposed amendment: Hearings Conducted by a Board of Stewards: All proceedings for alleged violations indicated in subsection (1)(b) of this rule shall be heard by a Board of Stewards unless the division indicates in its administrative complaint that it is seeking revocation of a licensee’s pari-mutuel license or the Board of Stewards relinquishes jurisdiction as required by the Florida Administrative Code and/or Florida Statutes. Allegations of the following violations shall be heard by a Board of Stewards: Horse riding and harness riding actions in violation of Chapter 550, F.S. Application and usage of drugs and medication to horses in violation of Chapter 550, F.S. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses in violation of Chapter 550, F.S. Suspensions under reciprocity agreements between the Division of Pari-Mutuel Wagering and regulatory agencies of other states involving horse racing. Assault or other crimes of violence on premises licensed for horse racing. Prearranging the outcome of any pari-mutuel horse racing event. * * * Procedures Applicable to Hearings by a Board of Stewards: * * * Conduct of Hearings Before a Board of Stewards The division shall have an opportunity to present to the Board of Stewards the undisputed facts of the alleged violation and any evidence of mitigation or aggravation for purposes of deciding a penalty. All parties shall have an opportunity to present evidence and witnesses regarding mitigation for purposes of deciding a penalty. All witnesses shall be sworn in by a member of the Board of Stewards and are subject to examination, cross-examination, and questioning by any member of the Board of Stewards. All parties shall have an opportunity to present legal arguments to the Board of Stewards, including interpretation of applicable division rules and statutes. * * * (4) Disputes of Material Fact: The Board of Stewards does not have jurisdiction to hear cases involving genuine issues of material fact. For purposes of this rule, a material fact is a fact that is essential to the determination of whether the respondent committed the alleged violation. Once a disputed issue of material fact is presented, the Board of Stewards must relinquish jurisdiction over the proceeding back to the division to be governed by Section 120.57(1), F.S., and referred to the Division of Administrative Hearings. The Division’s rationale for the proposed amendment is that section 120.80(4)(a) only allows stewards to impose fines or suspensions upon licensees, not to make factual determinations as to the underlying violations. The Division argues that if a matter requires anything more than a decision over the imposition of a fine or suspension when the violation is undisputed, then the exemption in section 120.80(4)(a) is no longer operative and the hearing and notice requirements of sections 120.569 and 120.57(1)(a) apply to force the stewards to refer the case to DOAH. The Division concludes that the proposed amendment does not limit the stewards’ jurisdiction but merely restates the limitations imposed by section 120.80(4)(a). The undersigned finds that the Division’s reading of the statute, while colorable if one considers the language of section 120.80(4)(a) narrowly and in isolation from the other provisions it cites, is fundamentally backward. As noted above, the only portion of section 120.57 that the Division is ever exempted from is subsection (1)(a). Thus, under section 120.80(4)(a), when the stewards go forward with their hearings to impose fines or suspensions, they remain subject to the provisions of section 120.57(1)(b)-(n). These provisions contain repeated specific references to the disputed issues of material fact that the Division argues stewards lack the jurisdiction to decide. For example: Section 120.57(1)(b) states that parties must be provided the opportunity “to submit proposed findings of facts and orders.” There would be no need to submit proposed findings of fact in the stewards’ hearings contemplated by the Division. Section 120.57(1)(c) sets forth the limitation on the use of hearsay in a section 120.57(1) hearing, a provision that would not be necessary in a proceeding with no disputed facts. Section 120.57(1)(d) provides, in relevant part, “Notwithstanding s. 120.569(2)(g), similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” (Emphasis added.) Again, this provision would not be necessary for a stewards’ hearing as contemplated by the Division, yet is fully applicable to the stewards’ hearings under section 120.80(4)(a). Section 120.57(1)(j) provides that “Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.” The jurisdictional authority of stewards is established by section 550.1155, the full text of which is as follows: 550.1155 Authority of stewards, judges, panel of judges, or player’s manager to impose penalties against occupational licensees; disposition of funds collected.— The stewards at a horse racetrack; the judges at a dog track[3]; or the judges, a panel of judges, or a player’s manager at a jai alai fronton may impose a civil penalty against any occupational licensee for violation of the pari-mutuel laws or any rule adopted by the division. The penalty may not exceed $1,000 for each count or separate offense or exceed 60 days of suspension for each count or separate offense. All penalties imposed and collected pursuant to this section at each horse or dog racetrack or jai alai fronton shall be deposited into a board of relief fund established by the pari-mutuel permitholder. Each association shall name a board of relief composed of three of its officers, with the general manager of the permitholder being the ex officio treasurer of such board. Moneys deposited into the 3 References to dog racing in this section have been eliminated by section 13, CS/SB 8A, approved by the Governor on May 25, 2021. As of the writing of this Final Order, the bill has not been codified. Therefore, the statute has been quoted in its 2020 form. board of relief fund shall be disbursed by the board for the specific purpose of aiding occupational licenseholders and their immediate family members at each pari-mutuel facility. When section 550.1155 is read in conjunction with section 120.80(4)(a), it is clear that the Legislature contemplated racetrack stewards having full authority to hear cases and impose the limited discipline of fines and suspensions against occupational licensees for violation of the pari-mutuel laws or Division rules, including cases involving disputed issues of material fact. Section 120.80(4)(a) does not extend that authority to cases seeking license revocation, which is consistent with the provisions of section 550.1155. The proposed amendment to rule 61D-3.001 provides that stewards may conduct only hearings not involving disputed issues of material fact. The board of stewards’ jurisdiction is expressly limited to hearings in cases with “undisputed facts” as to the violation. Evidence may be presented only as regards to mitigation or aggravation of the penalty for the violation. The proposed amendment requires the board of stewards to relinquish jurisdiction of the case to DOAH whenever a disputed issue of material fact arises, meaning that it strictly follows section 120.57(1)(a) in the face of the express exemption from that provision set forth in section 120.80(4). The authority of an agency to conduct hearings not involving disputed issues of material fact without resort to DOAH is codified in sections 120.569(1) and 120.57. The proposed amendment purports to implement section 120.80(4), but in fact ignores the exemption provided therein. In this, the proposed rule clearly contravenes the provisions of the statute it purports to implement. The Division’s reasoning, while erroneous, does not rise to the level of being arbitrary or capricious. The language of section 120.80(4)(a), restricting the exemption to hearings “held for the purpose of the imposition of fines or suspensions,” standing alone, could reasonably lead to the conclusion reached by the Division that the stewards’ hearings should be limited to instances in which the facts of the violation are undisputed and the only question is the level of discipline to be imposed. It is when section 120.80(4)(a) is placed in the context of sections 120.569(1), 120.57(1)(a), and 550.1155 that the Division’s error becomes apparent. The Division should have made the observation that sections 120.569(1) and 120.57(1)(a) require the agency to send disputed fact hearings to DOAH, and that section 120.80(4) provides an exemption from that requirement. The Division then should have asked, “If the stewards are already precluded from hearing cases involving disputed issues of material fact by section 120.569(1), then what does the exemption in section 120.80(4)(a) do?” It being impermissible for an executive branch agency to read a statute as mere surplusage, the exemption must mean that certain defined disputed fact hearings may be conducted by the agency without the need to refer the matter to DOAH.4 4 This reading is supported by the fact that section 120.80 exempts several other entities from section 120.57(1)(a): section 120.80(2)(b) exempts the Department of Agriculture and Consumer Services from section 120.57(1)(a) for hearings held pursuant to the Florida Citrus Code, chapter 601, Florida Statutes; section 120.80(7) exempts the Department of Children and Families from section 120.57(1)(a) for certain social and economic programs; section 120.80(8)(a) exempts the Department of Highway Safety and Motor Vehicles from section 120.57(1)(a) for hearings regarding driver licensing pursuant to chapter 322, Florida Statutes, and section 120.80(8)(b) exempts the same agency from section 120.57(1)(a) for hearings to deny, suspend, or remove a wrecker operator from participating in the wrecker rotation system established by section 321.051, Florida Statutes; section 120.80(10)(c) exempts the Department of Economic Opportunity from section 120.57(1)(a) for hearings held under the Reemployment Assistance Program law, chapter 443, Florida Statutes; section 120.80(12) generally exempts the Public Employees Relations Commission from section 120.57(1)(a); and section 120.80(15) provides that the Department of Health is exempt from section 120.57(1)(a) for hearings conducted “in execution of the Special Supplemental Nutrition Program for Women, Infants, and Children; Child Care Food Program; Children’s Medical Services Program; the Brain and Spinal Cord Injury Program; and the exemption from disqualification reviews for certified nurse assistants program.” The language of these exemptions is not uniform. In most instances, the statute states that the agency may conduct the hearings in-house “notwithstanding s. 120.57(1)(a).” In some instances, the language appears to give the agency the option of sending the case to DOAH or keeping it in-house. In none of the exemptions is there any indication that the hearing to be conducted by the agency may not resolve disputed issues of material fact. As explained above, the Division’s reasoning went in another direction. The undersigned finds the Division’s reasoning wrong but not irrational, or completely lacking in logic, and therefore not arbitrary or capricious. In light of the findings above, it is unnecessary to make extensive findings as to Petitioners’ other main contention, i.e., that the proposed amendment too closely mirrors DOAH procedures to be considered an “alternative procedure” under section 120.80(4)(a). The undersigned is persuaded that the Division had the better argument on this point. The statute does not define “alternative procedures.” The “alternative procedures” the Division adopts in its rule would still have to be consistent with administrative due process and thus would be expected to bear at least some passing similarity to the procedures of the Administrative Procedure Act. How similar the alternatives may become before they cease to be “alternative” under the statute is a question for another day.
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.
The Issue Whether Lawrence Phelps' Pari-Mutuel Wagering Occupational License should be disciplined?
Findings Of Fact On May 19, 1986, Lawrence Phelps executed and filed an application with the Division for a Pari-Mutuel Wagering Occupational License. The Division approved Mr. Phelps' application for license and issued license number 0053382 on May 28, 1987. Mr. Phelps was requested to inform the Division in question number four of the application whether, among other things, he had "ever been convicted of . . . Bookmaking?" Mr. Phelps answered this question by placing an "X" next to the response "No." On November 16, 1978, Mr. Phelps was adjudicated quality by the State of New York, County of Columbia County Court, of the offense of "possession of gambling records second degree" a violation of Section 225.15 of the New York State Penal Code. Mr. Phelps was fined five hundred dollars. On March 6, 1979, Mr. Phelps was convicted by the City of Hudson, New York, City Court, of "gambling second degree" a violation of Section 225.05 of the New York State Penal Code, and "possession of gambling records second degree." Mr. Phelps was fined $250.00 and $150.00, respectively, for these offenses. On March 26, 1980, Mr. Phelps was adjudicated guilty by the State of New York, County of Columbia County Court, of the offense of "possession of gambling records second degree." Mr. Phelps was again fined five hundred dollars. Mr. Phelps did not inform the Division of his three convictions in New York of possession of gambling records in the second degree or his conviction of gambling in the second degree. Mr. Phelps' convictions involving gambling all relate to a "policy (numbers) operation." Mr. Phelps believed that he properly answered the question concerning whether he had been convicted of the offense "bookmaking" when he completed his May 19, 1986, application for a Pari-Mutuel Wagering Occupational license. Mr. Phelps believed that "bookmaking" pertains to a particular type of gambling which he has not been convicted of engaging in. Mr. Phelps moved to Florida from New York and began employment with a greyhound dog race track located in Jacksonville, Florida. Mr. Phelps has been licensed by the Division since 1981. Mr. Phelps has been barred from employment at the track for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that Mr. Phelps has been convicted of an offense connected to wagering in violation of Rule 7E- 2.005(6), Florida Administrative Code. It is further RECOMMENDED that the Department suspend Mr. Phelps' Pari-Mutuel Wagering Occupational license, number 0053382, for a period of twelve (12) months from the date that Mr. Phelps was first barred from race tracks in Florida. DONE and ENTERED this 11th day of July, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1297 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 3. 3 6. The fact that Mr. Phelps did not apply for a hearing on readmittance is not relevant to this proceeding. 4 4. 5 5. 6 Except for the fact that Mr. Phelps associated with a man by the name of Nicky Laperia, these prosed findings of fact are not supported by the weight of the evidence and are based upon hearsay. 7 Irrelevant. 8 5. 9 Irrelevant and argument. COPIES FURNISHED: Thomas A. Klein Deputy General Counsel Department of Business Regulation The Johns Building 125 South Bronough Street Tallahassee, Florida 32399-1000 Lawrence Phelps 6024 Highway 17 South Green Cove Springs, Florida 32043 Billy Vessel, Director Department of Business Regulation Pari-Mutuel Wagering Rhode Building 401 Northwest 2nd Avenue Suite N - 1026 Miami, Florida 33128-1705 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent’s termination for alleged misconduct should be upheld based on the reasons stated in the termination letter dated July 25, 2005.
Findings Of Fact Respondent, Gregory V. Black was employed as an assistant football coach at FAMU from July 1, 1998 to July 25, 2005. Head Football Coach William (Billie) Joe was Mr. Black’s supervisor. During his employment, Coach Black received excellent to superior evaluation ratings. Coach Black was employed under an annual contract with FAMU. Until his termination, Coach Black was paid his regular salary and received the normal and customary retirement benefits and perks for his position. The last fully executed contract with the University ran from January 1, 2004, to December 31, 2004. However, a printout generated from the University’s personnel department indicates a beginning date of August 8, 2004, and an ending date of August 7, 2005. Additionally, there was a partially executed contract signed by the University’s interim president, Castell Bryant. The term of the partially executed contract ran from January 1, 2005 to June 30, 2005. The contract incorporated NCAA regulation 11.2 regarding contractual agreements between coaches and an NCAA member institution. The incorporated provisions state, in relevant part: Stipulation That NCAA Enforcement Provisions Apply. Contractual agreements . . . shall include the stipulation that a coach who is found in violation of NCAA regulations shall be subject to disciplinary or corrective action as set forth in the provisions of the NCAA enforcement procedures. Termination of Employment. Contractual agreements . . . shall include the stipulation that the coach may be suspended for a period of time, without pay, or that the coach’s employment may be terminated if the coach is found to be involved in deliberate and serious violations of the NCAA regulations. FAMU is a member of the NCAA. Member institutions of the NCAA are obligated to apply and enforce NCAA regulations and are responsible for operating their intercollegiate athletics program in compliance with the regulations of the NCAA. As part of that responsibility, FAMU has adopted the NCAA By-Laws as part of its rules and regulations governing the University. Member institutions also are responsible for governing staff members involved with athletics. Penalties for violations of NCAA regulations generally apply to member institutions and their programs. Occasionally penalties can apply to individual staff members who are directly involved in violations of NCAA regulations. In cases where an individual is the subject of an NCAA investigation, the NCAA issues a Notice of Allegations. In this case no Notice of Allegations was issued to Coach Black or any other member of the football coaching staff. In fact, the NCAA did not conclude or find that Coach Black committed any NCAA rule violation and the NCAA report only mentions his name in reference to being interviewed. There is no mention of Coach Black in reference to being involved in or knowing about any of the NCAA violations referenced in the report. Indeed Coach Black has never been the subject of an NCAA rule violation. Coach Black was primarily responsible for coaching and developing the offensive line. He ran practices and monitored the progress of his players. Coach Black did not generally monitor his player’s academics, unless the athletic office advised him of a problem. Likewise, Coach Black was not generally responsible for ensuring various student eligibility forms were completed and on file with the University. Nor was he generally responsible for recruitment activities. He was required to have general knowledge of NCAA regulations and responsible for reporting any violations of those regulations that he had knowledge of to the proper authorities at the University. The evidence showed that Coach Black did have such knowledge of the NCAA regulations and that he understood the reporting requirements of those regulations. It was Coach Black’s practice to be present when the offensive line was practicing. Generally, if he was on the field, the offensive line was out there with him. At some point FAMU became aware that their were allegations of NCAA violations at FAMU and that an NCAA investigation might occur. In light of those allegations, FAMU completed a Self-Report concerning violations of NCAA regulations. The Self-Report identified multiple alleged violations, of which the University’s football program allegedly constituted the bulk of the violations. No one who was involved with the Self-Report testified at the hearing. There was no competent evidence introduced at the hearing corroborating the allegations of the report. Uncorroborated hearsay statements made in the report about alleged violations cannot be used to prove that Coach Black violated NCAA regulations or knew about such alleged violations and failed to report those violations. In addition to the Self-Report, the NCAA conducted an investigation and issued a report concerning such alleged violations. The NCAA investigated numerous violations of NCAA regulations, including exceeding the daily practice time limitation, exceeding the weekly practice time limitation and not observing the day-off requirement regarding its football program. No NCAA official or investigator testified at the hearing. No corroborating evidence was offered at the hearing. As with the Self-Report, uncorroborated hearsay statements made in the report about alleged violations cannot be used to prove that Coach Black violated NCAA regulations or knew about such alleged violations and failed to report those violations. As a result of the NCAA conducting an investigation, the University retained a consultant, Mr. Nelson Townsend, to assist in interpreting exactly what the NCAA findings meant to the University. Mr. Townsend generally recommended the University make staff changes in the football program. There was no evidence that Mr. Townsend considered The University’s personnel rules in making his recommendation. On July 25, 2006, FAMU issued a letter of termination to Coach Black terminating his employment “contract” with FAMU. The termination was based on alleged NCAA violations regarding daily and weekly hours of practice, not permitting a day off to the players and failure to report such violations. The letter treated Coach Black as if he had a contract with FAMU and provided him rights under FAMU’s personnel rules regarding just cause and a right to a hearing. The letter, also, clearly had the effect of stigmatizing Coach Black in his profession as an assistant football coach. The allegations and termination were on the news. Indeed, Coach Black had difficulty finding suitable employment equivalent to what he possessed at FAMU after his termination. However, FAMU, in this proceeding, has admitted that Coach Black did not commit any NCAA violations. Indeed, there was no competent evidence that Coach Black was aware of or should have been aware of any alleged violations. Given this lack of evidence FAMU has failed to establish just cause for terminating Coach Black, and he is entitled to be reinstated for the remaining term of his contract, if any. The University’s interim president decided to withhold the employment contracts of all of the assistant football coaches. The evidence showed that there were many times that Coach Black’s employment contracts were executed after the start date of the contract period. However, the employment contract clearly states: . . . Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President or President’s designee, . . . and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority . . . . Irrespective of the language and terms of the contract, FAMU treated this matter as one arising under employment that can only be terminated for just cause. For purposes of this action, FAMU is estopped from claiming that Coach Black was an at-will employee. Additionally, the issue of whether Coach Black had an employment contract with FAMU need not be addressed since Coach Black was not terminated based on the expiration or absence of his contract. It is the reasons regarding NCAA violations stated in the termination letter that are at issue here. As noted, there was an absence of proof to support those allegations. Therefore, Coach Black is entitled to reinstatement and to have his name cleared of the stigma that termination for those allegations have caused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered by FAMU reinstating Respondent and clearing his name from the allegations made in the termination letter. DONE AND ENTERED this 24th of July, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2006. COPIES FURNISHED: H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 Antoneia L. Roe, Esquire Florida A&M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Robert E. Larkin, III Allen, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Castell V. Bryant, Interim President Florida A & M University 400 Lee Hall Tallahassee, Florida 32307-3100
The Issue The issues are whether Respondent violated section 550.2415(1)(a), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact The Division is the agency of the State of Florida charged with regulating pari-mutuel wagering pursuant to chapter 550, Florida Statutes. At all times relevant to this proceeding, Respondent held a pari-mutuel wagering thoroughbred trainer license, number 260970-1021, issued by the Division in 2001. On August 29, 2008, and at all times material hereto, Respondent was the trainer of record for "Cardiac Output," a thoroughbred racehorse. On August 29, 2008, Cardiac Output was entered, and finished second, in the fifth race at Calder Race Course. Approximately thirty minutes after the conclusion of the race, and in accordance with established procedures, a Division employee collected urine and blood samples from Cardiac Output. The blood and urine samples were assigned numbers 421716B and 421716U, respectively. Cardiac Output's race day specimens were analyzed by the University of Florida Racing Laboratory (the lab), which is retained by the Division to test urine and blood samples from animals racing at pari-mutuel facilities in Florida. The Lab, following applicable procedures, found that the blood and urine specimens contained caffeine, which acts as a central nervous system stimulant and is categorized as a Class Two drug pursuant to the Uniform Classification Guidelines for Foreign Substances.1 In addition, the Lab detected oxilofrine, a cardiac stimulant, in the urine sample. Although oxilofrine is a non-classified drug, it has the potential to cause injury to racehorses, particularly when administered in combination with caffeine. Subsequently, pursuant to section 550.2415(5)(a), the Division split Cardiac Output's race day specimens into primary samples and secondary ("split") samples. The split samples were then forwarded to the Louisiana State University (LSU) School of Veterinary Medicine for confirmatory testing. On July 15, 2009, LSU submitted a report confirming the presence of caffeine and oxilofrine. During the final hearing, Respondent testified that he did not knowingly administer any prohibited substances to Cardiac Output. The undersigned finds Respondent's testimony to be credible. Nevertheless, the "absolute insurer rule," which is described in detail below, requires the undersigned to find as a matter of ultimate fact that Respondent violated section 550.2415(1)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding that Respondent violated section 550.2415(1)(a), as described in this Recommended Order; suspending Respondent's license for a period of 30 days from the date of the final order; and imposing a fine of $500. DONE AND ENTERED this 11th day of January, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 11th day of January, 2011.
The Issue The issues in this case are whether Respondent, owner/trainer of record of a greyhound that finished in first place, a greyhound that finished in second place, and a greyhound that finished in third place in three separate races, and two greyhounds that ran and finished out of the money in two separate races, is legally responsible for the prohibited substance found in the urine sample of each of the five greyhounds taken immediately after each race in violation of Section 550.2415(1)(a), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Gregory H. Mitchell, was the holder of a professional individual occupational pari-mutuel license, number 129829, issued by the Division on July 1, 2002, with an expiration date of June 30, 2002. At all times relevant and material to this proceeding, the Sarasota Kennel Club was a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida and was assigned track number 153 by the Division. The Division of Pari-Mutuel Wagering Form 503 identified the name and location of each race track where a greyhound's urine sample was collected. At all times relevant and material to this proceeding, Respondent was the owner/trainer of record for each of the greyhounds who were entered in races at the Sarasota Kennel Club on the following dates and who had urine samples immediately taken and examined: (1) March 1, 2002, "Fly Bye Pumpkint" finished third in the third race, and the urine sample collected was numbered 842141; (2) March 11, 2002, "Greys Ice Star" finished eighth in the eleventh race, and the urine sample collected was numbered 852361; (3) March 12, 2002, "Fly Bye Pumpkint" finished fifth in the fourth race, and the urine sample collected was numbered 852399; (4) March 13, 2002, "Twilite Hossplay" finished second in the third race, and the urine sample collected was numbered 852439; and (5) April 8, 2002, "Dia's- White-Tip" finished first in the fourth race, and the urine sample collected was numbered 852562. The hereinabove five urine samples were forwarded to the University of Florida Racing Laboratory. The Racing Laboratory tested the urine samples and found that each urine sample tested contained benzoylecognine, a metabolite that is found only in cocaine. Cocaine is a Class I drug according to the Association of Racing Commissioners International Classification System.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order in this matter revoking the occupational license of Respondent, Gregory H. Mitchell. It is further RECOMMENDED that the following fines be imposed upon Respondent in the amount of $1,000 for the first-place finish violation; $1,500 for the second-place finish violation; $2,000 for the third-place finish violation; $2,500 for the fourth-place finish violation; and $3,000 for the fifth-place finish violation, for a total fine of $10,000. It is further RECOMMENDED that the Division order the purses received by Respondent, as a result of the first-place finish, the second- place finish, and the third-place finish, be returned forthwith to the Division. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Gregory H. Mitchell 1010 Villagio Circle Sarasota, Florida 34237 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
