Findings Of Fact The Department is the state agency charged with the responsibility of regulating licensees in the pari-mutuel industry. Respondent, Albert P. Polito, holds a pari-mutuel wagering occupational license, license number 12037440-1081, and at all times material to this case was operating as a trainer at Pompano Park, a pari-mutuel wagering race grounds. In 1993, Respondent was employed by the Erenstoft family to train and race a standardbred horse named "Handy A." "Handy A" was purchased by Mrs. Erenstoft in 1992. Mrs. Erenstoft paid $4,500 for the horse. As is customary in the industry, "Handy A" was delivered to Respondent's care and custody. As the trainer Respondent was responsible for the stable fees, food, training, and care of the horse. In return, the owner paid Respondent a monthly trainer's fee. When "Handy A" sustained an injury in July, 1994, he was unable to continue racing. Respondent wanted to turn the horse out. Turning a horse out allows them recuperative time to determine whether the injury will heal sufficient to allow the horse to return to racing. In this case, the Erenstofts agreed that Respondent could turn out "Handy A." Respondent advised the Erenstofts that "Handy A" was turned out to a farm somewhere in central Florida. The Erenstofts paid all monies which were owed to Respondent for the care and training of "Handy A." The Erenstofts have not sold nor agreed to sell "Handy A." The Erenstofts have not seen "Handy A" since July, 1994. When Respondent did not return "Handy A" to Pompano Park after demands for same were made, the Erenstofts began inquiries to attempt to locate the horse. Since no attempt to register a new owner has occurred it is presumed the new owner does not race "Handy A" within the regulated pari-mutuel industry. One market available for such a horse is with the Amish. Typically buyers representing the Amish visit Pompano Park to acquire standardbred horses trained to pull carts. In this case, Respondent told Vic Papeo he had "Amished" the subject horse. If, in fact, "Handy A" was sold to the Amish it will be extremely difficult, if not impossible, to recover the horse. Respondent has not paid the Erenstofts for the sale of "Handy A." CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 550.105(6), Florida Statutes, provides, in pertinent part: The division may deny, revoke or suspend any occupational license if the applicant therefor or holder thereof accumulates unpaid obligations or defaults in obligations... Furthermore, Rule 61D-1.006(3)(a) states: The division may deny a license to or revoke, suspend or place conditions upon or restrictions on a license of any person, or rule off or declare ineligible any person who: 2. Has unpaid fines or financial obligations; In this case, there has been clear and convincing evidence presented that Respondent incurred a financial obligation to the Erenstofts and failed to return the horse, "Handy A." It is presumed Respondent disposed of the horse, by sale or otherwise, without the owner's permission. Respondent has failed to meet financial obligations and is, therefore, ineligible for licensure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Division of Pari-Mutuel Wagering enter a final order revoking the pari-mutuel wagering occupational license of Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. Darby, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Albert Polito 5440 Northwest 55th Boulevard Apartment 11-207 Coconut Creek, Florida 33073
The Issue Whether Petitioner is eligible for a waiver of his 1996 conviction for cruelty to animals in order to receive a pari- mutuel wagering occupational license.
Findings Of Fact Petitioner is an applicant for a pari-mutual wagering occupational license who wishes to be licensed as a greyhound owner in Florida. Respondent is the Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, an executive agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes. Petitioner's application, filed June 27, 2002, candidly disclosed a previous felony conviction of cruelty to animals. On or about June 20, 1996, Petitioner was, in fact, found guilty of a third degree felony (cruelty to animals: refusing medical care to a greyhound) under Section 828.12(2), Florida Statutes, by a jury in the Seventh Judicial Circuit in and for Volusia County in Case No. 96-30581CFAES. He was 26 years old at the time. Petitioner's conviction for cruelty to animals arose from the death of a greyhound puppy named "He's My Denny." The puppy was in Petitioner's care at the Daytona Beach Kennel Club. "He's My Denny" was bred and raised to be a racing greyhound. As a result of his aforementioned felony conviction, Petitioner served 57 days in the Volusia County Jail and the balance of five years via out-of-state probation. Petitioner entered into a Consent Order with the Division, whereby he was declared to be ineligible for any pari- mutuel occupational license under Section 550.105, Florida Statutes, for three years. On July 1, 2002, after his three-year suspension had run, Petitioner requested a waiver of his conviction of cruelty to animals, for the purpose of re-licensure. Stephen Toner, an Investigator for the Division, interviewed Petitioner on August 5, 2002, regarding his request for a waiver. During the interview, Mr. Toner completed a waiver interview form. Each page, with the exception of the last page of the form which contained Mr. Toner's comments, was initialed and dated by Petitioner. In commenting upon the interview and its form at hearing, Petitioner expressed concern that Mr. Toner had misunderstood him during the interview when he said something to the effect of "If I had known there would be this much trouble with such serious consequences, I would have just put the dog down." I accept that Petitioner meant, by this, or similar language, that he would have humanely euthanized "He's My Denny," rather than allowing the beast to suffer. However, this information is largely irrelevant. Petitioner received the Division's letter of license denial on September 20, 2002. The National Greyhound Association will not permit Petitioner to register a greyhound for racing purposes in any state unless the State of Florida will re-license him. Therefore, Petitioner is effectively precluded from his chosen line of work throughout the United States, by Florida's denial of his occupational license application. After being denied re-licensure by the Division, Petitioner received a Certificate of Restoration of Civil Rights, dated October 25, 2002. The Certificate states, in pertinent part: "grants [Petitioner] restoration of civil rights, except the specific authority to possess or own a firearm for any and all felony convictions in the State of Florida." Petitioner testified, without refutation, that, except for his cruelty to animals conviction, he has had no other trouble with the law except that when he was 19 years old, he was caught driving without a license and represented himself to police as his older brother, who did have a driver's license. At hearing, Petitioner did not list, or elaborate on, any signs of good moral character or rehabilitation since his 1996 Florida conviction for cruelty to animals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a Final Order denying Petitioner's application for a pari-mutuel occupational license. DONE AND ENTERED this 15th day of May, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 15th day of May, 2003. COPIES FURNISHED: David J. Gibby 6278 Stanleyville Drive Rural Hill, North Carolina 27045 Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 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 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in this case are whether Respondent violated Section 550.2415(1)(a), Florida Statutes (1996)1 by allowing a greyhound with a drug, medication, stimulant, depressant, hypnotic, narcotic, or local anesthetic, in its system to enter and complete a race and, if so, what, if any, disciplinary action should be taken against Respondent's pari-mutuel wagering occupational and business licenses.
Findings Of Fact Petitioner is the state agency responsible for regulating the pari-mutuel industry in the state, including the regulation and discipline of licensees such as Respondent. Respondent holds an Unrestricted "U1 " Professional individual pari-mutuel wagering occupational license, number 0526562-1081, and a business occupational pari-mutuel wagering license, number 1364008-1080, for Ron Runge Kennel. Respondent is the trainer of record for Prunella Scales ("Prunella"), a greyhound. On February 22, 1997, the Respondent entered Prunella in the thirteenth race at Sanford-Orlando Kennel Club (the "race") and allowed Prunella to complete the race. Prior to the start of the race, urine sample number 267912 was taken from Prunella. The urine analysis conducted by the Bureau of Laboratory Services revealed the presence of ecgonine methyl ester in sample number 267912. Ecgonine methyl ester is a metabolite of cocaine. Cocaine is a topical anesthetic and a class 1 drug. Respondent violated Section 550.2415(1)(a) by entering Prunella in the race with an impermissible drug in its system and allowing Prunella to complete the race in such a condition. As the trainer of record, Respondent is responsible for of the condition of a greyhound that he or she enters in a race. Respondent has an extensive disciplinary history. In August 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug and redistributed the purse money. In September 1994, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, Petitioner redistributed the purse money. In November 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug. Respondent's pari-mutuel occupational license was suspended until he paid the fine. In September 1995, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, the purse money was redistributed. In January 1996, Petitioner fined Respondent $100.00 for racing a greyhound on an impermissible drug and suspended Respondent's pari-mutuel occupational license until Respondent paid the fine. In March 1996, Petitioner fined Respondent $50.00 for racing a greyhound on procaine, an impermissible substance. In March 1997, Petitioner summarily suspended Respondent's licenses and denied Respondent all access to pari-mutuel grounds during the period of suspension. In addition to the foregoing drug violations, Respondent was found guilty of improperly using rabbits in the training of racing greyhounds in November 1991. He was fined $250.00 for that violation. On March 11, 1995, Respondent was fined $50.00 for presenting the wrong greyhound at the weigh-in, and on July 30, 1996, he was fined $50.00 for failure to present the proper greyhound at the weigh-in. Prior disciplinary action has been ineffective in rehabilitating Respondent. Respondent persists in the prohibited practice of racing animals on impermissible substances. License suspension and fines have no deterrent effect on Respondent. Respondent is not a viable candidate for rehabilitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein find Respondent guilty of violating Section 550.2415(1)(a) by racing an animal with an impermissible drug in its system and revoke Respondent's licenses. DONE AND ENTERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings DANIEL MANRY Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 9th day of January, 1998.
The Issue Whether Petitioners are entitled to exceed the twenty percent cap on simulcasts.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating pari-mutuel facilities within the State of Florida. The Department also regulates, pursuant to Chapter 550, Florida Statutes, simulcast broadcasts of pari-mutuel events which are imported into the state at pari-mutuel facilities located within Florida. Such broadcasts are permissible and are subject to statutory taxes depending on the type of event and the applicable percentages of tax on the wagers received. Such amounts may vary depending on facility and type of event. Thoroughbred racing permit holders may simulcast thoroughbred races conducted at out-of-state thoroughbred tracks. Similarly, a harness racing facility may simulcast harness races conducted at out-of-state harness tracks. Theoretically, greyhound clubs may simulcast greyhound races conducted out-of- state and jai alai may simulcast jai alai matches from out-of-state. In each instance, the Florida pari-mutuel permit holder may send the simulcast signal to any pari-mutuel permit holder within the state. Historically, the number of the races which could be imported from out- of-state to be broadcast at a Florida permit holder location was capped at twenty percent. A permit holder could exceed this limitation with approval from the Department when it was in the best interests of racing and would promote live racing and purse distribution. Petitioner, Calder Race Course, Inc. (Calder), is a thoroughbred racing pari-mutuel permit holder fully authorized by the Department to conduct live races during its racing meet. Its racing facility is located in Miami, Florida. In June, 1995, Calder first requested permission to conduct full card simulcasting pursuant to Section 550.3551(6), Florida Statutes. That request, covering racing dates remaining for the 1995-1996 racing season, was denied. Moreover, Calder's request for an administrative hearing to challenge the denial was also denied. Calder's successful appeal to the district court of appeal ultimately resulted in this matter, DOAH case no. 95-6180, being referred to the Division of Administrative Hearings for formal proceedings. In December, 1995, Calder again filed an application to exceed the twenty percent full card simulcast limitation for its 1996-1997 racing season. Again, the Department denied the request. Having the benefit of the appellate decision, the Department referred the matter, DOAH case no. 96-1348, to the Division of Administrative Hearings for formal proceedings. Petitioner, Tampa Bay Downs, Inc. (TBD), is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Its racing facility is located in Oldsmar, Florida. In September, 1995 and January, 1996, TBD applied for full card simulcasting for its racing meet. Consistent with its response to Calder's request, the Department denied the TBD applications and referred the matter to the Division of Administrative Hearings for formal proceedings, DOAH case nos. 96-0025 and 96-1351. Petitioner, Tropical Park, Inc. (Tropical), is a thoroughbred racing pari-mutuel permit holder that is fully authorized to conduct live races during its racing season. It shares the Calder facility in Miami but has a different racing meet. Like Calder, Tropical filed for full card simulcasting for its 1996- 1997 racing meet and was denied by the Department. Its petition for formal proceedings has been designated DOAH case no. 96-1349. Petitioner, Gulfstream Park Racing Association, Inc. (Gulfstream) is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Gulfstream is located in Hallandale, Florida. On or about January 3, 1996, Gulfstream filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for the 1996-1997 racing season with a race meet running from January 3, 1997 through March 16, 1997. The Department denied Gulfstream's application. Such denial, DOAH case no. 96-1350, was timely opposed by Gulfstream. Petitioner, PPI, Inc., d/b/a Pompano Park Racing (Pompano), is a harness racing pari-mutuel permit holder that is fully authorized to conduct live harness races during its racing season. Pompano is located in Pompano Beach, Florida. On or about December 20, 1995, Pompano filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for Pompano's 1996-1997 racing season. The Department denied Pompano's application. Such denial, DOAH case no. 96-1392, was timely opposed by Pompano. Petitioner, the Florida Thoroughbred Breeders' Association, d/b/a the Florida Thoroughbred Breeders' and Owners' Association (Breeders), is a nonprofit corporation with its principal place of business located in Ocala, Florida. This Petitioner represents Florida owners and breeders of thoroughbred race horses. The Breeders maintain that denying simulcasting in excess of the twenty percent limitation adversely impacts the amounts which must be paid as the breeder's percentage of the wagers made at pari-mutuel facilities. Thus, Florida breeders lose income which simulcasting in excess of the cap would contribute to breeders' awards. The Intervenors are greyhound pari-mutuel permit holders who opposed full card simulcasting in excess of the statutory twenty percent limitation. Such Intervenors did not oppose the importation of the broadcast signals to a specific pari-mutuel location, but opposed its unbridled rebroadcast to pari- mutuel facilities within the state as allowed by law. Before the hearing in this cause was completed and on the last day of the 1996 regular session, the Legislature enacted CS/HB 337. Such bill became law without the Governor's signature and went into effect on July 1, 1996. The new law made numerous amendments to Chapter 550, Florida Statutes. Among the changes was the removal of the twenty percent limitation on simulcast wagering for pari-mutuel permit holders. On May 16, 1996, the Department issued a letter to all pari-mutuel wagering permit holders that provided, in pertinent part: In light of this omnibus legislation which addressed the concerns of the entire pari- mutuel industry including the issues surrounding full-card simulcasting, the Division of Pari-Mutuel Wagering (Division) believes it is in the best interest of Florida racing to immediately allow full- card simulcast wagering until June 30, 1996 pursuant to the Division's discretion set forth in subsection six of Section 550.3551, Florida Statutes. Accordingly, any pari-mutuel wagering permitholder whose annual license currently authorizes them to conduct live performances at any time during the period of May 17, 1996 through June 30, 1996 may receive broadcasts of like-kind events conducted at facilities outside this State at the race- track, dog track, or jai-alai enclosure of the licensee during any live performance authorized by the permitholder's annual license. On June 30, 1996 the privilege granted by this letter terminates; thereby, ending any authorization to exceed the twenty-percent limitation on simulcast wagering for all permitholders within the State. Full-card simulcast wagering authorized and regulated pursuant to the provisions in the Committee Substitute for House Bill 337 becomes effective on July 1, 1996. Thereafter, the Department filed a motion to dismiss Petitioners' requests for formal administrative hearing due to mootness. The Intervenors have supported the Department's motion to dismiss. The Petitioners, with the exception of Gulfstream which wanted the hearing and the administrative process to be completed, filed a motion to abate so that the 1996-1997 racing season may be completed before a determination is made as to the mootness of the issue.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving all full card simulcasting applications for which days remain in the Petitioner's racing meet. All other applications are deemed moot as the racing meets have expired. DONE AND ENTERED this 30th day of October, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October 1996. COPIES FURNISHED: Alexander H. Twedt, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harry R. Detwiler, Jr., Esquire John M. Alford, Esquire ALFORD & DETWILER 1106-6 A Thomasville Road Tallahassee, Florida 32303 Wilbur E. Brewton, Esquire Lee M. Killinger, Esquire Gray, Harris & Robinson, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 (Attorneys for Calder Race Course, Inc. and Tropical Park, Inc.) Howell L. Ferguson, Esquire Cindy L. Bartin, Esquire LANDERS & PARSONS Post Office Box 271 Tallahassee, Florida 32302 (Attorneys for Tampa Bay Downs, Inc.) Gary R. Rutledge, Esquire Harold F.X. Purnell, Esquire Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302 (Attorneys for the Intervenors) David S. Romanik, Esquire ROMANIK, LAVIN, HUSS & PAOLI 1901 Harrison Street Hollywood, Florida 33020 (Attorneys for Gulfstream Park Racing Association, Inc.) Warren H. Husband, Esquire Messer, Caparello, Madsen, Goldman & Metz, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 (Attorneys for Florida Thoroughbred Breeders' Association) Alan B. Koslow, Esquire David H. Reimer, Esquire BECKER & POLIAKOFF, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 (Attorneys for PPI, Inc.) Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Royal H. Logan Acting Director Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
