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 for disposition in this case are whether Hamilton Downs violated section 550.01215(3), Florida Statutes (2013), by failing to operate all performances specified on its license on the date and time specified, and whether the Division should be estopped from prosecuting Hamilton Downs.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550, Florida Statutes. At all times material to the Amended Administrative Complaint, Hamilton Downs held a Quarter Horse Racing pari- mutuel permit issued by the Division, number 0000547-1000, that authorized Hamilton Downs to conduct pari-mutuel wagering on quarter horse races pursuant to chapter 550. On or about March 15, 2013, the Division issued a Permitholder Annual License & Operating Day License (the “operating license”), number 0000547-1001, to Hamilton Downs, which authorized Hamilton Downs to perform 20 regular quarter horse performances from June 18 through 22, 2014, at a rate of four performances a day. Each performance consisted of eight individual races. Thus, the operating license authorized a total of 160 races. In 2012 and 2013, Hamilton Downs conducted licensed quarter horse barrel match races at its facility. When the 2014 operating license was issued, Hamilton Downs intended to conduct a meet consisting of barrel match races. As a result of litigation that culminated several months before the commencement of the Hamilton Downs 2014 racing meet, the Division advised Hamilton Downs that it would not be able to conduct barrel match racing under its quarter horse racing operating permit. However, Hamilton Downs was permitted to conduct “flag-drop” racing during that period of time. From June 18 through 22, 2014, Hamilton Downs conducted the quarter horse “flag drop” racing meet pursuant to its operating license. Flag drop racing as performed at Hamilton Downs involved two horses racing2/ simultaneously on a crude dirt “track” approximately 110 yards in length. The track was straight for about 100 yards, with a pronounced rightward turn to the finish line, and was haphazardly lined with white stakes. The race was started by a person who waved a red cloth tied to a stick whenever it appeared that both horses were in the general vicinity of what the starter perceived to be the “starting line.” There was no starting box or gate. The track was in the middle of an open field. There was no grandstand, though there was a covered viewing area on “stilts” from which the state steward and track stewards could observe the races. The track had one betting window and tote machine in an on-site shed. The only window in the shed was, mercifully, occupied by a window-unit air conditioner. As stated by Mr. Haskell, “nothing about Hamilton Downs is real in terms of racetrack standards.” For several years prior to the 2014 meet, Hamilton Downs shared horses and riders with the racetrack in Gretna, Florida, and the North Florida Horsemen’s Association. Several weeks prior to the commencement of the Hamilton Downs 2014 meet, a schism developed between the groups. As a result, the Gretna racetrack and North Florida Horsemen’s Association prohibited its horses and riders from competing in Hamilton Downs meets. That action stripped Hamilton Downs of most of the horses and riders that it was relying upon to perform in its meet. Mr. Richards had the permitted dates, and was required to race on those dates to remain in compliance. He was able to make arrangements for horses “way down on the eligible list.” They were, for the most part, older horses of lesser quality. Nonetheless, Hamilton Downs did its best to fulfill its permitted slate of races. The pool from which the races were set included 19 horses and six riders. The horses and riders were supplied to Hamilton Downs by the Hamilton Downs Quarter Horse Association (HDQHA). The HDQHA believed it could provide enough horses to handle the meet. The horses, and their owners, were: Precious N Fritz -- Stardust Ranch, LLC Skippers Gold Tupelo -- Stardust Ranch, LLC Business Official -- Stardust Ranch, LLC Cutter With A Twist -- Stardust Ranch, LLC Dun It Precious Gal -- Stardust Ranch, LLC Heavens Trick -- Stardust Ranch, LLC Dancer Blue Ghost -- Amie Peacock Starpion N Skip -- Amie Peacock Twist N to Stardust -- Amie Peacock Docs Lil Jose -- Amie Peacock Dandees Bay Apache -- Amie Peacock Kings Hollywood Moon -- Amie Peacock Lassies Last Chance -- Elaine Tyre Sugars Daisy Bar -- Elaine Tyre Touch of Leaguer -- Elaine Tyre Joys Winning Touch -- Elaine Tyre Jazz Potential -- Emma McGee Sonney Dees Diamond -- Emma McGee Royal King Princess -- Richard McCoy The riders were: Amie Peacock Elaine Tyre Emma McGee Richard McCoy Nicholas McCoy Christine Bradley Each of the owners was licensed by the Division. The riders were mainly local riders. The breeds of the horses complied with state law regarding horses allowed to run in quarter horse races.3/ The horses had their ownership records and identifying tattoos, and their current Coggins forms, which are required to substantiate that they have tested negative for diseases. Mr. Stallings testified that there were no problems regarding the ages of the horses since “that is not something DBPR worries about.” The animal detention areas checked out and were secure. Mr. Taylor inspected the track and found no violations of track setup under the current rules. The horses and riders had access to the track for the three days prior to the meet for purposes of training and acclimating the horses to the track. The races at Hamilton Downs during June 2014 were conducted in the presence of a state steward. The races must be seen to be believed. The 14 events for which video evidence was received show a series of races involving -- as a rule -- tired, reluctant, skittish, or disinterested horses moving at a slow pace down the dust-choked path. There was no marked starting line or finish line. The horses were often yards apart when the red rag-on-a-stick was waved. With one exception (performance 2, race 7), the gait of the “racing” horses ranged between a slow walk and a canter. Horses often simply stood at the starting line before slowly plodding down the track. In one instance, a horse actually backed up, until a bystander took it by the lead, thereafter giving the horse a congratulatory slap on the rump when it began to move in a forward direction. Mr. Haskell noted races in which riders fell off of their horses, or in which a horse left the course. He described numerous races, aptly, as non- competitive because one or both of the entrants walked, including one race (day 3, card 3, race 5) in which the racing steed took 1 minute and 45 seconds to cover the 110-yard course. The overall quality of the videotaped races was about what one would expect of an entry-level campers’ horse show held at the conclusion of a two-week YMCA summer camp. The interest in the series of races by the betting public was commensurate with the quality of the races. Wagers were of the $2.00 variety. Over the course of the 160-race meet, a total of 10 bets were placed, with two of those reportedly placed by a representative of a competing facility in an effort to substantiate wrongdoing on the part of Hamilton Downs. Given the competitive level of the races, a $20 handle seems about right. Mr. Haskell testified that the same horses just kept racing over and over. However, his steward’s report noted that he “refer[ed] to the ‘rule book’ numerous times in the five days pertaining to ages of horses, number of races a horse may race in a limited time, etc., but the rules just didn’t exist.” Mr. Taylor expressed similar concerns with the failure of the horses to “break” at the start of the races, their slow pace, and other issues. He did not make a point of them or bring them to the attention of Hamilton Downs because there was “no rule violation.” Despite the bemused, occasionally embarrassed expressions on the faces of the riders as their horses ambled slowly down the track, the witnesses, including Mr. Haskell and Mr. Taylor, uniformly testified that the riders tried to make sure the races were competitive. Thus, the poor quality of the races cannot be attributed to a lack of effort on their part. “Coupled entries” are those in which horses owned by the same owner compete against one another in the same race. On the second race of the meet, it was discovered that the two horses scheduled to race were both owned by Amie Peacock. Although the racing program had been distributed to all race officials involved, including the state steward, no one noticed the coupled entry. The preponderance of the evidence indicates that the coupled entry was discovered immediately before the start of the race. The racing secretary attempted to alert the starter, but was unsuccessful. Therefore, the race was run.4/ When the coupled entry was discovered, and before the race was made official, a post-race meeting of roughly 30 minutes was held to determine how to proceed. A preponderance of the evidence indicates that the meeting participants included, among others, the state steward, the track stewards, the state investigative specialist, the racing secretary, and the track owner. During the meeting, Mr. Richards offered that the race could be “re-run,” an option that was rejected since there is no authority for re-running a race. Mr. Richards also proposed calling a “no-contest,” which would allow Hamilton Downs to request an additional race from the Division. An additional race is not a re-run of the disputed race, but is a replacement race to be conducted at a different time during the meet. Mr. Richards was familiar with the procedure for requesting an additional replacement race, and was fully prepared to do so. It is not uncommon for such requests to be made in all types of pari-mutuel activities. Mr. Haskell acknowledged the possibility of declaring a no-contest for the coupled entry, and agreed that if he had declared a no-contest, Hamilton Downs could have requested a “make-up date” to be approved by the Division. At the conclusion of the meeting, Mr. Haskell did not declare a no-contest. Rather, he decided to make the race “official.” As a result, Hamilton Downs could not request a make-up race. Mr. Taylor discussed the incident with management of Hamilton Downs, and promised to keep an eye out to make sure a coupled entry did not recur. After the second race of the meet, there were no further instances of coupled entries. Over the course of the meet, Mr. Haskell declared all of the 160 races, including the coupled entry race, to be official, whereupon the winner of the race was determined and results were entered by an Amtote employee into the computer and transmitted to the “hub.” At that point, wagers (if any) were paid out, and the tote was allowed to roll over to the next race. During the June 2014 races at Hamilton Downs, a purse, stake, or reward was offered for the owner of each horse to cross the finish line first. Mr. Richards was frank in his admission that the 2014 race season was important because it allowed Hamilton Downs to qualify for a cardroom license and, if ultimately allowed, slot machines. However, the reason for conducting the meet is of no consequence to the outcome of this proceeding. Hamilton Downs has, subsequent to the 2014 meet, conducted flag drop races at its facility pursuant to operating permits issued by the Division. Within the past five years, the Division has never filed an administrative complaint, suspended a pari-mutuel permitholder, or fined a pari-mutuel permitholder due to a failure to conduct a race at any particular speed. Within the past five years, the Division has never suspended a pari-mutuel permitholder for a violation of section 550.01215 that pertained to a race or races that were made official by a state steward.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2016.
The Issue The Petitioner has accused the Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medi- cation, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that "The trainer shall he responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Joyce is accused under facts that allege that on October 16, 1978, the horse, Hawaiian Gardens, trained by the Respondent did race in the Second (2nd) race at Calder race course, finishing in the first (1st) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Hawaiian Gardens, and assigned sample number S 08484 A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on December 22, 1978, the Division of Pari-Mutuel Wagering laboratory reported the results of a test and that report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was the holder of license Nos. K-4547, K-4201 and K-2575 issued by the Petitioner to the Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in the body of rules are Rules 7E-1.00(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. These rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a horse trainer on October 16, 1978, at the Calder race course in Broward County, Florida. On that date, a horse for which he was the trainer, named Hawaiian Gardens, ran in the second race and finished in first place. Prior to the race, the horse, Hawaiian Gardens, had been in the custody and control of the Respondent in the sense that the horse was in the presence of the Respondent before the race. The horse was treated in the morning prior to the race by medications, ACTH, Steroids, Lasix and for Myopathy, as shown by the Petitioner's Exhibit No. 5 admitted into evidence, which is a copy of the invoice of the treating veterinarian, Carl J. Meyer, D.V.M. The first of the medications was given around eight o'clock and further medication was given around nine or nine thirty and that medication was Lasix, which is a substance given for horses who have tendencies to bleed. Around eleven thirty or twelve o'clock an injection was given by Dr. Meyer for a condition which Dr. Meyer later described as Myopathy. Joyce saw the injection administered but did not question Dr. Meyer about what was in the injection. The second race occurred around 1:15 p.m. and, subsequent to the race, Hawaiian Gardens was taken to the detention barn for purposes of taking a urine sample for testing to detect any narcotics. The horse entered the area of the detention barn around 2:00 p.m. The horse started a cooling down period and walk-off around 2:05 p.m. and was back in the stall at 2:25 p.m., at which point the urine sample was taken and the horse was out of the detention barn at 2:30 p.m. The next day, on October 17, 1978, the Respondent inquired of Dr. Meyer about the previous day's treatment for Hawaiian Gardens. Dr. Meyer replied that he gave the horse a treatment for Myopathy, attention to the horse's nervous system. Joyce made no further inquiry of Meyer about the treatment for Myopathy. The urine sample of the horse, Hawaiian Gardens, was examined by a series of tests and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl Citrate, a narcotic. This particular narcotic, Fentanyl Citrate, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fentanyl Citrate is Sublimaze. Under the circumstances, it is clear that the horse, Hawaiian Gardens, had run in the second race at Calder race course on October 16, 1978, at a time the horse had the substance, Despropionyl Fentanyl, in its system and this had resulted from Dr. Meyer's injection of Sublimaze around eleven thirty or twelve o'clock on October 16, 1978, which he fraudulently called a treatment for Myopathy. Joyce had no knowledge of Meyer's intentions nor the act of injecting the horse with Sublimaze.
Recommendation It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident on October 16, 1978, involving the horse, Hawaiian Gardens, be DISMISSED. DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Boulevard, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Francis Clifford Joyce 1015 South 17th Avenue Hollywood, Florida 33020 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-227 FRANCIS CLIFFORD JOYCE, Respondent. /
Findings Of Fact At hearing Petitioner produced the laboratory reports and other documentation related to the greyhounds "Lips Are Sealed" and "Red Eyed Fever," which on their face established the following: At times relevant to this inquiry Respondent held Pari- Mutuel Wagering occupational license number 1102016(1021) issued by Petitioner. On May 25, 2005, Respondent was the trainer of record for a racing greyhound named "Lips Are Sealed," whose identifying tattoo number was 93C2231. On that date "Lips Are Sealed" raced in the second race of the performance at Pensacola Greyhound Track, Inc. (Track 150). At the conclusion of the race a urine specimen was collected of "Lips Are Sealed," specimen 129287, using established procedures. The urine sample 129287 was forwarded and processed in accordance with established procedures, by the University of Florida, College of Veterinary Medicine, Racing Laboratory. On June 22, 2005, in a report prepared by the Director and the Associate Director of the racing laboratory, it was concluded "Sample 129287 has been analyzed by gas chromatography/mass spectrometry (GC/MS) and found to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Cocaine is a topical anesthetic and a Class I drug. The concentration of Benzoylecgonine is 20.4 ng/mL." On June 1, 2005, Respondent was the trainer of record of racing greyhound "Red Eyed Fever." The identifying tattoo for the greyhound was 32A11137. On that date "Red Eyed Fever" raced in the fourth race of the performance at Pensacola Greyhound Track, Inc. (Track 150). Following the race a urine sample was collected from the racing greyhound, using established procedures and assigned specimen number 12348. After the urine sample was collected from "Red Eyed Fever," it was forwarded to the University of Florida, College of Veterinary Medicine, Racing Laboratory for analysis. The Racing Laboratory at the University of Florida performed an analysis consistent with established procedures, as reflected in a report dated June 22, 2005, prepared by the Director and Associate Director of the Racing Laboratory. The report concluded "Sample 12348 has been analyzed by gas chromatography/mass spectrometry (GC/MS) and found to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Cocaine is a topical anesthetic and a Class I drug. The concentration of Benzoylecgonine is 22.3 ng/mL.” In his hearing testimony Respondent stated several times that he had never given his dogs, taken to mean racing greyhounds, drugs of any kind. No other explanation was offered concerning the circumstances related to "Lips Are Sealed" and "Red Eyed Fever," in which they raced and were found to have Benzoylecgonine (a metabolite of Cocaine) and/or a derivative thereof in their systems on the dates described.
The Issue Whether Respondent violated sections 550.105(4) and (7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 61D-2.005, as applicable, by engaging in the following conduct, as alleged in the First Amended Administrative Complaint: (1) assisting an unlicensed person in working in a restricted area at a licensed pari-mutuel wagering facility, in violation of section 550.105(4) and rule 61D-2.005; and (2) accumulating unpaid obligations directly related to the sport of pari-mutuel racing, in violation of section 550.105(7); and, if so, the penalty that should be imposed.
Findings Of Fact The Parties and Licensure Status Petitioner is the state agency charged with regulating pari-mutuel wagering in the state of Florida pursuant to chapter 550. At all times relevant to this proceeding, Respondent was the holder of Pari-Mutuel Wagering Individual Occupational License No. 2005775-1021, which authorizes him to own and train racing horses in this state pursuant to chapter 550. At all times relevant to this proceeding, Respondent trained and raced horses at Gulfstream Park ("Gulfstream"), a facility operated by a permitholder authorized to conduct pari- mutuel wagering in this state pursuant to chapter 550. The Administrative Complaint At all times relevant to this proceeding, Respondent was subject to chapter 550 and applicable rules codified in Florida Administrative Code Chapter 61D-2. On or about March 29, 2017, Petitioner served its Administrative Complaint on Respondent, charging him with two counts of violating statutes and rules governing pari-mutuel racing. Count I of the Administrative Complaint charges Respondent with "conspiring with, soliciting, aiding, abetting, counseling, hiring, or procuring" Salvador Domingo Ramos to work in a restricted area of Gulfstream on or about July 25, 2016. If proved, this conduct would violate section 550.105(4), which makes it unlawful to take part in any way at any pari-mutuel facility without first having secured an occupational license and paid the occupational license fee; and also would violate rule 61D-2.005, which, among other things, prohibits a licensee from conspiring with, aiding, abetting, counseling, hiring, or procuring any other person or persons to engage in a violation of chapter 550. Count II of the Administrative Complaint charges Respondent with "accumulating unpaid obligations that directly relate to the sport of racing at a pari-mutuel facility in Florida." If proved, this conduct would violate section 550.105(7), which, among other things, makes a sanctionable offense the accumulation of unpaid obligations that directly relate to the sport of racing being conducted at a pari- mutuel facility in this state. The Evidence Adduced at Hearing Count I On July 25, 2016, Julio Minaya, an investigative supervisor employed by Petitioner, engaged in an inspection of the "backside" of Gulfstream. Specifically, Minaya and the investigative team he supervised inspected barn nos. 21, 22, and 23 at Gulfstream. The "backside" is a secured area at a pari-mutuel facility that contains the barns and stables, where the racing horses are housed, and the race tracks. Only persons who hold occupational licenses or who are otherwise authorized are allowed to enter and engage in activities in the backside, and security officers are hired to guard the backside and ensure that unauthorized persons do not enter this area. As part of the inspection on July 25, 2016, Minaya requested each person encountered in barn nos. 21, 22, and 23 to provide his or her occupational license for inspection, in order to ensure that the person was licensed and that the license was valid. During the July 25, 2016, inspection of the backside at Gulfstream, a member of the Minaya's investigative team encountered a person in a storage room within barn no. 23. The man, who ultimately identified himself as Salvadore Domingo Ramos, told Minaya that he did not have his license with him. At that point, Minaya informed Ramos that he would have to leave the backside. As Minaya escorted him out of the backside, Ramos told Minaya that he worked for Respondent, that he did not have "any papers," and that he was just trying to work. Minaya interpreted Ramos's comments to mean that he (Ramos) was an undocumented immigrant, so would not have a valid occupational license. Minaya then contacted Respondent, who told him that Ramos had been working for him, exercising his horses, for approximately a month and a half. Respondent told Minaya that he did not know that Ramos was unlicensed, but that had seen Ramos exercising other trainers' horses, so assumed Ramos was licensed. At the final hearing, Respondent testified that Ramos had worked for him, for compensation, as an exerciser for the horses Respondent trained. Respondent further testified that he knew that unlicensed persons could not be hired to work in any capacity in the backside, and he acknowledged that he did not ask Ramos for his license before he hired him to exercise his horses. However, he noted that persons who go into the backside must pass through a security check at which they must show their license to gain entry. Because Respondent had seen Ramos on numerous occasions in the backside exercising other trainers' horses, he assumed that Ramos was licensed. The evidence, consisting of testimony by Petitioner's licensing administrator and supporting documentation from Petitioner's licensing computer database, confirmed that Ramos did not hold an occupational license on July 25, 2016, and had never held such a license. Count II Finish Line Feed, Inc. ("Finish Line"), is a business that sells animal food products. Ninety percent of its business is selling equestrian hand grain in Florida to race track facilities and to individuals who train and race horses at race tracks in Florida that hold pari-mutuel events. Doreen DeFonzono, office manager at Finish Line, is responsible for keeping records of all sales transactions for Finish Line. DeFonzono testified, and provided copies of customer account statements showing, that Respondent was a customer of Finish Line and that he purchased equestrian food products from Finish Line over a period of time. DeFonzono testified, credibly, that the food Respondent purchased was delivered to him at a pari-mutuel facility in Florida. The evidence shows that Respondent often was arrears in paying his account balance with Finish Line, but that he periodically would pay part of the outstanding balance. The customer account statements show on November 30, 2015, Respondent paid $500.00 toward his outstanding account balance. After this payment, Respondent's outstanding balance was $12,915.91. Thereafter, Respondent did not make any further payments toward his customer account balance. Finance charges on the outstanding balance accrued monthly, so that by July 31, 2016, Respondent's outstanding account balance was $13,986.06. Thereafter, Finish Line filed suit against Respondent to recover the amount Respondent owed. The court entered a Default and Final Judgment by Default ("Default Judgment") against Respondent in Case No. COCE-16-019754DIV 54, ordering Respondent to pay a total of $15,458.14 to Finish Line for the outstanding principal balance of $13,986.06, plus filing, process service, and attorney fees. The Default Judgment was recorded in the Broward County public records on December 14, 2016. DeFonzono credibly testified that to date, Respondent still owes Finish Line the amount of the Default Judgment, plus accrued interest, and that Finish Line and Respondent have not discussed or entered into any repayment agreements regarding the amount Respondent owes Finish Line. Respondent does not dispute that he did not fully pay off his balance with Finish Line or that a Default Judgment was entered against him. He testified that he had been a customer of Finish Line from 2004 to 2015. His credible testimony, supported by the customer account statements, showed that he made periodic payments in an effort to reduce his outstanding balance. He testified, credibly, that he fell on bad financial times, and that a number of unfortunate events and circumstances——including having an accident, breaking his hip, losing his driver's license, becoming unemployed, and being unable to pay workers' compensation insurance for any employees he may hire——rendered him unable to revive his horse training and racing business, so that he was, and remains, unable to pay the amount he owes Finish Line. Respondent currently is unemployed and does not train or race horses at Gulfstream or any other pari-mutuel facility. Findings Regarding Alleged Violations Based on the foregoing, Petitioner has shown, by clear and convincing evidence, that Respondent hired an unlicensed person to work for him in a restricted area of Gulfstream on or about July 25, 2016. This conduct violates section 550.105(4), which makes it unlawful to take part in any way at any pari- mutuel facility without first having secured an occupational license and paid the occupational license fee. This conduct also violates rule 61D-2.005, which, among other things, prohibits a licensee from hiring any other person to engage in a violation of chapter 550. Based on the foregoing, Petitioner has shown, by clear and convincing evidence, that Respondent accumulated unpaid obligations that directly relate to the sport of racing at a pari-mutuel facility in Florida. This conduct violates section 550.105(7), which, among other things, makes a sanctionable offense the accumulation of unpaid obligations that directly relate to the sport of racing being conducted at a pari- mutuel facility in this state. Aggravating or Mitigating Circumstances There was no evidence presented showing that Respondent previously violated any laws or rules regarding pari-mutuel wagering or pari-mutuel wagering facilities in Florida. Additionally, the evidence shows that Respondent did not knowingly or willfully hire an unlicensed person. As Respondent persuasively testified, he had seen Ramos on the premises in the backside of Gulfstream working for other trainers, so assumed that he was licensed. Respondent did not know Ramos was unlicensed when he hired him. The evidence further shows that due, at least in part, to a series of significant, unfortunate events and setbacks, Respondent is unemployed, so is not in a financial position to purchase the insurance necessary for him to be able to restart his horse training business. These hardships have rendered Respondent unable to pay Finish Line the balance owed pursuant to the Default Judgment. The evidence does not show that Respondent is, or has been, financially able to pay Finish Line the balance he owes but has simply chosen not to do so.2/ The evidence also does not show that Respondent bought products from Finish Line, intending not to pay for them or knowing that he was not going to pay for them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding and concluding that Respondent violated sections 550.105(4) and 550.105(7), Florida Statutes, and Florida Administrative Code Rule 61D-2.005; imposing a fine of $100.00 to be paid over a period of six months of the date of the final order; and suspending Respondent's occupational license until such time as either: (1) Respondent has repaid his debt to Finish Line in full, or (2) Respondent has entered into an agreement with Finish Line to repay his debt and he has been in compliance with that agreement for a period of six months. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018.
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
The Issue Whether Respondent is responsible for three violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering which is created by Section 20.165(2)(f), Florida Statutes. The Division regulates pari-mutuel wagering in the State of Florida. Respondent, Donald S. Abbey, was the holder of a pari-mutuel occupational license, License No. 2013666-1081, that was issued by the Division during the month of May 2001. Hialeah Park is a facility operated by a permit holder authorized to conduct thoroughbred racing and pari-mutuel wagering in the State of Florida. Hialeah Park was so authorized in May 2001. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named “Savahanna.” The horse Savahanna finished second in the first race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Savahanna. The urine sample was assigned sample No. 748428 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748428 and found it to contain Terbutaline. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Hada Clue." The horse Hada Clue finished second in the third race at Hialeah Park on May 16, 2001. Immediately after the race, a urine sample was collected from Hada Clue. The urine sample was assigned sample No. 748440 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748440 and found it to contain Terbutaline. On May 18, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Sounds Like Scott." The horse Sounds Like Scott finished second in the fifth race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Sounds Like Scott. The urine sample was assigned sample No. 748536 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748536 and found it to contain Terbutaline. Terbutaline is a bronchodilator and a Class 3 drug according to the Association of Racing Commissioners International classification system. In his Election of Rights, Respondent indicated that he was not the trainer of record. Specifically, he indicated that he had hired a person named Dimitrius Monahas as the trainer with the knowledge of the stewards of Hialeah Park. State Steward Walter Blum testified at the hearing that Respondent was, in fact, the trainer of record for the horses Savahanna, Hada Clue, and Sounds Like Scott. At Hialeah, the trainer of record is determined at the time stall spaces are assigned at the beginning of a meet. Respondent’s name appears in the official programs as both the trainer and the owner of the horses at issue. There is a procedure at Hialeah to notify the stewards of a change in trainer. However, Respondent did not notify the stewards of any change. Dimitrius Monahas signed sample tags for sample Nos. 748440 and 748536 as the owner’s witness. The sample tags list Respondent as both the trainer and owner of the horses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this matter suspending Respondent’s occupational license for a period of ten (10) days and imposing a fine of $850.00. It is further recommended that the Division of Pari-Mutuel Wagering order that any purse received as a result of the second-place finishes of two of the races in question be returned. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. 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 16th day of October, 2002. COPIES FURNISHED: Donald S. Abbey Post Office Box 1199 Pilot Point, Texas 76258-1199 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 Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
