The Issue Whether Respondent violated Sections 550.235(1), 550.235(2), and 550.25415(8), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Dr. Michael J. Carinda (Dr. Carinda), is a veterinarian licensed in the State of Florida. He holds pari- mutuel wagering occupational license number 0906873 1081 97, first issued by Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), in 1989. Petitioner is the agency responsible for the regulation of the horse racing industry in Florida. At all times pertinent to this proceeding, Dr. Carinda was an employee of Plante & Associates and performed his duties under the direction of Dr. Paul R. Plante, a veterinarian. At all times pertinent to this proceeding, Dr. Carinda worked as a veterinarian at the Pompano Park Harness Track (Pompano Track) in Pompano Beach, Florida, as an employee of Plante & Associates. James Gabriel is and has been a detective with the Fort Lauderdale Police Department for 17 years. During 1993, Detective Gabriel worked undercover at the Pompano Track in an investigation of race fixing allegations at the Pompano Track. While undercover, Detective Gabriel posed as a convicted felon who was the owner in fact of the horse named Yankeeroughneck. A convicted felon is not allowed to register a horse in his name; therefore, Yankeeroughneck was registered under the name of Herman Berger, who was licensed by Petitioner. Mr. Berger, one of the targets of the undercover investigation, did not know that Gabriel was an undercover detective. Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Gabriel was a part were taped recorded without the knowledge of the other participants in the conversations. At all times relevant to this proceeding, Yankeeroughneck was a standard bred horse, racing at the Pompano Track. At all times relevant to this proceeding, Dr. Plante held an occupational license issued by Petitioner and provided veterinary care to horses racing at the Pompano Track. On the morning of May 24, 1993, Detective Gabriel engaged in the following conversation with Dr. Plante and Herman Berger. Plante: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible) Berger: He came, he raced but not the way he supposed to. Plante: I'll speak with Charlie tomorrow morning. Well, the only thing to do is to try it one start. Berger: Yes. Plante: Not that expensive to do. Berger: Exactly. Plante: If the horse improves. Berger: Alright. Gabriel: How long does it take before we do something like that for (Unintelligible.) Plante: Two and a half hours before the race. * * * Plante: Ok, the same thing that we used to, when used to pass the tube, you know, but now we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringes. Put it on the back of their tongue a hundred and eighty c.c. and (Unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him show on the box. Dr. Plante, Herman Berger, and Detective Gabriel agreed to milkshake Yankeeroughneck before the horse's next race for the purpose of enhancing the horse's performance. On the morning of May 27, 1993, Dr. Plante advised Dr. Carinda that Dr. Carinda was to deliver an ionic boost to Yankeeroughneck's groom that afternoon. The ionic boost, which is also called a milkshake, consisted of approximately eight ounces of baking soda, and two to three ounces of confectioner's sugar mixed with water to the consistency of paste. Dr. Plante told Dr. Carinda that he had given instructions to the groom on May 24, 1993, on how to administer the milkshake. Yankeeroughneck was scheduled to and did race at the Pompano Track on May 27, 1993. Dr. Carinda testified that approximately two and one half hours before Yankeeroughneck was scheduled to race on May 27, 1993, he delivered a milkshake to Yankeeroughneck's groom for the purpose of having the groom administer the milkshake to Yankeeroughneck on the same day. The mixture was delivered in a ziplock bag. Detective Gabriel, Herman Berger, and Michael Metcalf, the groom, were present at the racetrack at the time Dr. Carinda delivered the milkshake. Dr. Carinda told them to administer the milkshake as close as possible to the time that horse was placed in confinement. Once a horse is placed in confinement prior to a race, nothing can be administered to the horse. When Dr. Carinda arrived at the track, Detective Gabriel, Herman Berger, and Michael Metcalf had a dose syringe ready for the milkshake. Dr. Carinda testified that he did not consider the mixture of baking soda, sugar, and water to be a drug because it was not administered intravenously. He also testified that the purpose of administering the milkshake was to alleviate the pain and fatigue associated with a horse "tying up." Tying up refers to the pain and injury caused by tearing muscles due to exertion. By relieving the pain that would be caused by tying up, the milkshake would enhance the horse's performance. After delivering the milkshake and prior to leaving the track on May 27, 1993, Dr. Carinda engaged in the following conversation with Detective Gabriel: Carinda: (Unintelligible) now boys. Gabriel: Okay. Carinda: The rest is up to you. Gabriel: I certainly appreciate it Mikey. Carinda: Now if you come home as fast as you can leave. Gabriel: You know the horse, you know the horse. About a minute after Dr. Carinda left, Michael Metcalf used a dosing syringe to force the mixture that Carinda had delivered down the throat of Yankeeroughneck. After Mr. Metcalf administered the milkshake to Yankeeroughneck, Detective Gabriel retrieved the ziplock bag and transferred it to Detective Piroth. The bag contained the residue of the milkshake. On June 10, 1993, Dr. Carinda delivered a milkshake, containing sodium bicarbonate, confectioner's sugar, and water to Yankeeroughneck's groom. After Dr. Carinda left, Charles Giamanco and Michael Metcalf used a dosing syringe to force the milkshake down Yankeeroughneck's throat. Detective Gabriel retrieved the ziplock bag with the residue of the milkshake and transferred it to Detective Reubottom. Approximately two and one-half hours after the milkshake was administered on June 10, 1993, Yankeeroughneck raced at the Pompano Track. Dr. Carinda admitted that during the 1993 season he had participated in milkshaking race horses at the Pompano Track on at least 150 occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Michael Carinda violated Section 550.235(2), Florida Statutes, as set forth in Counts II and VII of the Second Amended Administrative Complaint, suspending his occupational license for a period of two years, assessing an administrative fine of $2,000, and dismissing Counts I, III, IV, V, VI, VIII, IX, and X of the Second Amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 11th day of December, 1997. COPIES FURNISHED: Madeline McGuckin Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 James G. Brown, Jr., Esquire Law Offices of Brown & Brown 2700 West Atlantic Boulevard Suite 215 Pompano Beach, Florida 33069 Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The Petitioner, Division of Pari-Mutuel Wagering, issued charges against the Respondent, Gulfstream Park Racing Association, Inc., alleging that Gulfstream violated Section 550.487, F.S., in its computation of purses awarded during its 1976 racing season. Respondent, Gulfstream Park Racing Association, Inc., is a corporation that operates Gulfstream Park Race Track, a thoroughbred horse racing establishment. The issues concerned in this proceeding were whether Gulfstream in fact incorrectly computed the amount of money it should have awarded in purses and if so whether it should suffer any penalty. Section 550.487, F.S., states: "Four-seventeenths of the commission authorized by s. 550.16 to be withheld by each of the winter thoroughbred licensees from its pari-mutuel pool, the same being equivalent to 4 percent of the pari-mutuel handle, shall be paid by each track for purses during its respective racing period. Computation of such 4 percent shall be based upon the previous year's average daily handle times the number of days authorized for the period operated by each respective permittee during its current racing year." According to the Petitioner, this statute requires each race track to compute its average daily handle for the previous year and multiply 4 percent of that figure by the number of racing days granted in a current season. The resultant figure would give the purse requirement. This system however was not used by the Respondent. Instead various estimates were used in an attempt to compute what was projected to be the average daily handle of Gulfstream for 1976. Since the race track had been granted different racing days, Gulfstream felt it would be unfair to use the 1975 average daily handle in computing the purse requirements for 1976. Using its own system, Gulfstream arrived at a figures of $2,536,000 to be awarded as purses in the 1976 season. The Petitioner, Division of Pari-Mutuel Wagering, on the other hand, calculated that $2,701,562.88 should have been awarded as purses during that 1976 season. That figure was arrived at by multiplying $1,184,896 (Gulfstream's 1975 average daily handle) by 57 days (Gulfstream's racing season for 1976). The resulting figure is then multiplied by 4 percent as required in Section 550.487, F.S. Gulfstream arrived at its lower figure by coming to the conclusion that the statutory requirement was unfair. After examining what the statute required and what the projected impact upon Gulfstream was, the management of Gulfstream decided they would recompute their purses based on their interpretation of what was fair under the circumstances. The difference between the amount computed by the Division of Pari-Mutuel Wagering and Gulfstream amounts to $165,562.88. After reviewing the statutory requirements it is clear that Gulfstream's computation of purses is in violation of the above quoted Florida Statute. That statute clearly and unequivocally computes purses for the current racing season by taking a percentage of the average daily handle of the previous year. Gulfstream thought this was unfair and purposefully devised its own computation which it believed to be more equitable. Whether or not it was more equitable depends on one's point of view. It is without a doubt, however, that Gulfstream's method did not follow the statutory requirements. It is equally clear that Gulfstream thereby avoided paying over $165,000 in purses to the thoroughbred owners. Since it is determined that Gulfstream did violate the above statutes, the question then becomes the imposition of the appropriate penalty. Section 550.07, F.S., states in part: ". . . the division after notice and hearing may impose a civil penalty against any licensee for violations of this chapter or chapter 551, or any rule or regulation promulgated by the division. No penalty so imposed shall exceed $1,000 for each count or separate offense " Gulfstream argues that the charges issued by the division contain only one count and therefore they are liable for a $1,000 civil penalty. On the other hand the division maintains that the act was violated each time a race was run by Gulfstream. After reviewing the charges filed it is clear that sufficient notice was given to Gulfstream that the Division of Pari-Mutuel Wagering contended that each purse awarded by it was in violation of the statute. The total amount actually awarded as racing purses by Gulfstream is the sum of every purse of every race for the year in question. The total is the sum of the parts. Where the entire amount is deficient by incremental steps each must be considered a separate cause of the violation. From the proof offered at the hearing of this proceeding it can be concluded that each time a purse was awarded by Gulfstream constituted a separate offense under the statute. Therefore, after reviewing all the evidence in the case and considering the amount by which Gulfstream has profited from its unilateral interpretation of the statute, it is recommended that a civil penalty be assessed against Gulfstream in the amount of $250,000.00. DONE and ENTERED this 25th day of February, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Staff Attorney Department of Business Regulation Division of Pari-Mutuel Wagering 725 South Bronough Tallahassee, Florida 32304 Leonard Romanik, Esquire P. 0. Box 1040 Hollywood, Florida 33022
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
The Issue Should Petitioner impose discipline against Respondent's Pari-Mutuel Wagering Occupational License, and other relief for alleged violation of Section 550.2415(1)(a), Florida Statutes (2005)?
Findings Of Fact Between May 24, 2005 and June 18, 2005, Respondent held a Pari-Mutuel Wagering Occupational License, number 1102016- 1021, issued by Petitioner. On May 25, 2005, Respondent was the trainer of record of a racing greyhound named "Lips Are Sealed." On May 25, 2005, "Lips Are Sealed" was entered, and finished first (1st), in the second (2nd) race of the performance at Pensacola Greyhound Track. Immediately following the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005, urine sample number 129287 was collected from "Lips Are Sealed." The University of Florida Racing Laboratory tested urine sample number 129287 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Lips Are Sealed" while participating in the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005. On June 1, 2005, Respondent was the trainer of record of a racing greyhound named "Red Eyed Fever." On June 1, 2005, "Red Eyed Fever" was entered, and finished first (1st), in the fourth (4th) race of the performance at Pensacola Greyhound Track. Immediately following the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005, urine sample number 129348 was collected from "Red Eyed Fever." The University of Florida Racing Laboratory tested urine sample number 129348 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Red Eyed Fever" while participating in the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005. On June 16, 2005, Respondent was the trainer of record of a racing greyhound named "Stubborn Kind." On June 16, 2005, "Stubborn Kind" was entered, and finished first (1st), in the first (1st) race of the performance at Pensacola Greyhound Track. Immediately after the first (1st) face of the performance at Pensacola Greyhound Track on June 16, 2005, urine sample number 129469 was collected from "Stubborn Kind." The University of Florida Racing Laboratory tested urine sample number 129469 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Stubborn Kind" while participating in the first (1st) race of the performance at Pensacola Greyhound Track on June 16, 2005. On June 17, 2005, Respondent was the trainer of record of a racing greyhound named "Drinktil Hescute." On June 17, 2005, "Drinktil Hescute" was entered, and finished first (1st), in the fifth (5th) race of the performance at Pensacola Greyhound Track. Immediately following the fifth (5th) race of the performance at Pensacola Greyhound track on June 17, 2005, urine sample number 129479 was collected from "Drinktil Hescute." The University of Florida Racing Laboratory tested urine sample number 129479 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Drinktill Hescute" while participating in the fifth (5th) race of the performance at Pensacola Greyhound Track on June 17, 2005.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the occupational license held by Respondent, imposing a $5,000.00 fine and requiring the return of the race purses. DONE AND ENTERED this 27th day of June, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of June, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas M. Dudley, Sr. 327 Northeast 434 Street Old Town, Florida 32680 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue This is a case in which the Petitioner, for reasons set forth in an Amended Administrative Complaint and Notice of Intent to Deny License, seeks to impose administrative fines against the Respondent, seeks to suspend or revoke the Respondent’s thoroughbred racing permit, and seeks to deny the Respondent’s application for another thoroughbred racing license.
Findings Of Fact The parties The Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), which is created by Section 20.165(2)(f), Florida Statutes. The Respondent has been the holder of a permit to conduct pari-mutuel wagering upon thoroughbred horse racing in Dade County, Florida, since 1978. Background facts The Respondent has between 1250 and 1350 stable stalls. Gulfstream, a nearby thoroughbred horse racing facility, has about 1450 stable stalls. Calder, another nearby thoroughbred horse racing facility, has about 1750 stable stalls. This larger number of stalls allows Calder to run races when other South Florida thoroughbred tracks are not running. The racing season of 1989-1990 was the first Florida thoroughbred horse-racing season after the statutory deregulation of racing dates. The 1989-1990 racing season was the first racing season during which the Respondent had other South Florida thoroughbred races competing with it on every date on which it was scheduled to race during that season. During the 1989-1990 racing season, the Respondent ran in direct competition with Tropical Park, which was a separate permit- holder owned by Calder. The Respondent’s annual license for the 1989-1990 racing season called for it to race on 141 days during that racing season, but it only raced on 28 days. The Respondent’s decision to cancel the remainder of its racing dates during the 1989-1990 season was due primarily to an insufficient number of available horses to field a full program of horses on a day-to-day basis on all of the days on which the Respondent was supposed to have races. Although the matter is not entirely free from doubt, it was believed by some horsemen at that time that the lack of a sufficient number of horses at Hialeah during the 1989-1990 racing season was due, at least in part, to alleged threats by functionaries of Calder to the effect that horses stabled at Calder that raced at the Respondent's race track that season would be evicted from the Calder stables.2 In 1989, Calder was owned by an individual named Bert Firestone. In 2002, Calder was owned by, and is still owned by, Churchill Downs, a public company. In 1989, Gulfstream was owned by the Donn family. In 2002, Gulfstream was owned by, and is still owned by, Magna Entertainment Corporation. In 1991, the deregulation legislation that permitted the competitive racing dates that first occurred during the 1989-1990 racing season was modified. The modification imposed tax penalties on race tracks that ran more than one of the three designated racing periods. The modification was, however, written to sunset in 2001. The effect of this modification was to give the Respondent a ten-year reprieve from head-to-head competition with Gulfstream and Calder. The Respondent lobbied for the passage of legislation that would, in effect, have forgiven the Respondent for failing to run its licensed race dates in March, April, and May of 2002. The legislation was enacted into law in 2002. Gulfstream filed a lawsuit challenging the constitutionality of that legislation. The legislation that would have forgiven the Respondent’s failure to run its races was eventually found to be unconstitutional. In 2003, the Respondent proposed additional legislation that would have forgiven the Respondent for not operating in the future. Gulfstream successfully lobbied against the passage of the legislation. The Respondent has a very large and very high quality turf course. Horsemen prefer the quality of the turf at the Respondent’s track, but they run at Gulfstream because of the better purses. Gulfstream and Calder both enter into revenue sharing contracts (called “50-50 contracts”) with the horsemen. The Respondent has never agreed to revenue sharing and typically paid only the statutory minimums. The 2001-2002 thoroughbred racing season On December 12, 2000, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2001-2002 thoroughbred racing season. On February 13, 2001, the Division issued Respondent License Number 1300, for the 2001-2002 thoroughbred racing season. This license required Respondent to conduct 58 matinee thoroughbred performances from March 17, 2002, through May 22, 2002. The Respondent did not conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a fire. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a strike. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through Mary 22, 2002, was not the direct result of a war. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a disaster beyond the ability of Respondent to control. Annual licenses to conduct pari-mutuel operations at thoroughbred racing meets during the 2001-2002 thoroughbred racing season were also issued to Gulfstream and to Calder. The racing dates in these two racing licenses did not compete with each other, but they did compete with the racing dates in the annual license issued to the Respondent. The effect of the licenses issued by the Division for the 2001-2002 racing season was that the Respondent faced competing dates from Gulfstream from March 17 through April 24, 2002, and then faced competing dates from Calder from April 25 through May 22, 2002. The Respondent learned of the competing date applications filed by Gulfstream and Calder for the 2001-2002 racing season shortly after January 4, 2001. Upon discovering that the competing licenses had been requested, representatives of the Respondent attempted to contact representatives of Gulfstream and Calder to negotiate non-competing dates. Representatives of the Respondent also contacted race tracks outside of Florida to attempt to create a circuit comprised of northern horses that did not traditionally race in South Florida. Representatives of the Respondent did not make a significant effort to contact horsemen to obtain horses for the Respondent’s 2002 race dates. After learning that Gulfstream and Calder were not willing to change their dates, the Respondent’s Chairman of the Board, John J. Brunetti, asked the Respondent’s racing secretary, Sam Abbey, to inquire as to what horses could reasonably be expected to be shipped down to the Respondent’s stables for the 2001-2002 racing season. Mr. Abbey made only a half-hearted effort at such inquiries because it seemed to be pretty much a foregone conclusion that Hialeah was not going to race on its dates in the 2001-2002 season, and the few horsemen contacted by Mr. Abbey expressed no interest in coming to Hialeah for the 2001-2002 racing season. At all times material to this case, Kent H. Stirling has been the executive director of the Florida Horsemen's Benevolent and Protective Association. In that position, Mr. Stirling acts as a liaison between the race tracks and the horsemen, representing the interests of the horsemen. Among other things, Mr. Stirling negotiates purse contracts with the race track owners. Neither Mr. Brunetti nor Mr. Abbey contacted Mr. Sirling regarding the negotiation of a purse contract for the 2001-2002 racing season. In the normal course of events, purse contracts are negotiated six or seven months in advance of the race dates. Mr. Brunetti and the other people involved in the management of Hialeah never made a serious effort to conduct any races during the 2001-2002 racing season. Shortly after learning that they would have to run their races with direct competition that season, it appeared to be a foregone conclusion that Hialeah would not race that season because it did not want to race with direct competition.3 As early as May 22, 2001, Mr. Brunetti advised race fans in the program for Hialeah’s last racing day of the 2000-2001 season: “By now you have heard that Hialeah Park will probably end its racing career with our last racing day, May 22. This is sad, but true.” An early decision to not run any races during the 2001-2002 racing season is also evidenced by the fact that Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2001-2002 racing season. Mr. Brunetti’s decision not to race during the 2001- 2002 racing season appears to have been based largely on the notion that, because the 1989-1990 racing season with direct competition on race dates had been a total disaster, racing in 2001-2002 with direct competition would probably also be a disaster, so it was not worth doing.4 During the 2001-2002 and the 2002-2003 thoroughbred racing seasons, by reducing the number of horses per race to 8 or 9, or by reducing the number of races per day to 8 or 9, and by racing 5 days per week, the Respondent could have accommodated a sufficient number of horses in its own stables to have run all of its race dates during those two seasons.5 In the past, the Respondent has had racing programs where it ran only 8 races per day. With the exception of the opening and the closing days, the last year the Respondent ran its authorized dates, it ran 8 races each day. The 2002-2003 thoroughbred racing season On December 20, 2001, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2002-2003 thoroughbred racing season. On February 14, 2002, the Division issued the Respondent License Number 1300 for the 2002-2003 thoroughbred racing season. This license required the Respondent to conduct 89 matinee thoroughbred performances from February 1, 2003, through May 14, 2003. On March 28, 2002, the Respondent filed an application to amend License Number 1300 for the 2002-2003 thoroughbred racing season requesting a change of the number of performances and dates. On April 12, 2002, the Division issued the Respondent an amended license, Number 1300-Amendment A, to conduct pari- mutuel operations for the 2002-2003 thoroughbred racing season. The amended license required the Respondent to conduct 73 matinee thoroughbred performances from January 3, 2003, through April 13, 2003. The Respondent did not conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a fire. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a strike. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a war. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a disaster beyond the ability of the Respondent to control. The circumstances during the 2002-2003 were similar to those of the prior racing season. Racing licenses for the 2002- 2003 thorough bred racing season were again also issued to Gulfstream and to Calder. These two licenses did not compete with each other, but one of them did compete with the license issued to the Respondent. The effect of the combined racing licenses issued by the Division for the 2002-2003 racing season was that the Respondent faced competing dates from Gulfstream from January 3 through April 13, 2003. The Respondent’s racing dates did not compete directly with Calder in 2003. For essentially the same reasons as the season before, Mr. Brunetti made an early decision not to race during the 2002- 2003 thoroughbred racing season. Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2002-2003 racing season. Mr. Brunetti never made any serious efforts to attempt to attract horses to race at the Respondent's facility during the 2002-2003 season. The 2003-2004 thoroughbred racing season On January 2, 2003, the Respondent filed its application for an annual license to conduct pari-mutuel operations at a thoroughbred-racing meet during the 2003-2004 thoroughbred racing season. The Respondent’s application that was filed on January 2, 2003, seeks 81 thoroughbred performances from January 3, 2003, through April 24, 2004. On February 14, 2003, the Division issued an Administrative Complaint and Notice of Intent to Deny License based upon Respondent’s failure to conduct thoroughbred performances in the 2001-2002 and 2002-2003 thoroughbred racing seasons. On March 31, 2003, the Respondent filed a request to amend its application for an annual license to conduct pari- mutuel operations at a thoroughbred racing meet during the 2003- 2004 thoroughbred racing season.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case revoking the Respondent’s thoroughbred racing permit and denying the Respondent’s application for a racing license for the 2003- 2004 thoroughbred racing season. DONE AND ENTERED this 30th day of September, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of September, 2004.
The Issue The issues in the case are whether the licensee, Gene Ash, committed the violations described in the decision of the Judges/Stewards of Pompano Park Harness Track rendered on October 18, 1993, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the administration and regulation of the pari-mutuel wagering industry in the state of Florida pursuant to Chapter 550, Florida Statutes, and the rules promulgated thereunder. Respondent is a trainer of standardbred harness racing horses. Petitioner licensed Respondent to work as a trainer at pari-mutuel wagering facilities within the state of Florida pursuant to pari-mutuel occupational license number 0033544- 1081. Respondent has held such license at all times material to this proceeding. On August 20, 1993, Respondent was the trainer of record for Coast Express. Coast Express is a standardbred racing horse participating in harness racing at Pompano Park Harness Track (Pompano). Pompano is the holder of a valid permit to conduct harness racing for the purpose of conducting pari-mutuel wagering in Broward County, Florida. On August 20, 1993, Coast Express ran in the eighth race at Pompano. Coast Express won that race posting a time of 157.1, an individual best time for the horse. After the eighth race on August 20, 1993, Coast Express was taken to the detention barn at Pompano for collection of a urine sample to be analyzed by Petitioner's laboratory. Daniel Gogan, a groom working at Pompano, took Coast Express to the detention barn. Walter Mazur, Petitioner's veterinary assistant working in the detention barn, collected urine sample #908605 from Coast Express at 10:11 p.m. Daniel Gogan signed the sample card but Mr. Mazur was the only person in the stall at the time the sample was collected. Coast Express was the only horse under the care of Walter Mazur during the time the horse was in the detention area for collection of a urine sample. Samples are collected by placing the race horse in a stall with top and bottom doors. Generally, the Petitioner's veterinary assistant is the only person in the stall with the race horse. However, the trainer, or his groom, may observe the collection of the sample by watching through an open door. Trainers, or their grooms, are only allowed into the stall if invited by the veterinary assistant. After a sample has been collected, it is sealed and the sample tag is filled out. The sample tag records: (1) the date; (2) the sample number; (3) the horse's name, color, sex, and age; (4) the race in which the horse ran and its finishing position; (5) the track's name; (6) the name(s) of the horse's owner and trainer; and (7) the horse's tattoo number. The tag has three signature lines. The first line is for the veterinary assistant who collected the sample. The second line is for a witness to the sealing of the sample. The third line is for an owner's witness. The time required to collect a sample and seal it in its container is approximately two to five minutes. The sample tag for sample #908605 indicates that the sample was taken from Coast Express on August 20, 1993. The card shows that Coast Express finished first in the eighth race at Pompano. The card indicates that the horse was owned by Coast Express Stable and the trainer is Respondent. The card bears the signatures of: (1) Walter Mazur, veterinary assistant who took the sample; (2) Jim Meirs, supervisor of the detention area who witnessed the sealing of the sample; and (3) Daniel Gogan, witness for the owner. After the sample is collected it is stored in a locked freezer until it is packed for shipping to the Petitioner's laboratory in Tallahassee, Florida, the next working day. On August 23, 1993, Walter Mazur packed sample number 908605 into a sealed and locked box which was shipped to the Petitioner's laboratory via U.S. Air Mail. The record indicates that a total of sixteen samples were taken on August 20, 1993. Fourteen of these samples were urine samples. The record is not clear whether sample numbers 908607 and 908608 were blood only or urine only or both. Neither of them were logged on Petitioner's laboratory Report of Samples Logged dated August 23, 1993. There is no explanation in the record for a discrepancy between the number of samples taken on August 20, 1993 and the number of samples received by the laboratory on August 23, 1993. In any event, there is clear and convincing evidence that sample number 908605 was one of fourteen (14) urine samples received in Respondent's laboratory on August 23, 1993, with its seal intact in the sealed and locked box. On its receipt in the laboratory, sample number 908605 was assigned laboratory number 58511F. Petitioner's Bureau of Laboratory Services conducts screening tests of all samples received for analysis unless there is an insufficient sample or the sample is not properly secured. The first screening tests performed on laboratory sample number 58511F were a thin layer chromatography (TLC) analysis and an immunoassay screening known as an ELISA analysis. Both of these tests indicated that the sample was "suspicious" of containing a drug in the promazine family. When a sample is deemed suspicious by one of the screening tests, it is sent to the confirmation section of the laboratory for testing on an instrument called a gas chromatograph/mass spectrometer (GC/MS or GC/Mass Spec). This instrument is used to confirm the presence of metabolites of drugs which are present in the urine sample. In the instant case, the test was qualitative only even though the state chemists could have performed a quantitative analysis. Quantitative analysis is not done when the sample is "suspicious" of containing a drug in the promazine family because any amount of such drug in a urine sample is prohibited. The state laboratory file contains a copy of a Mass Spectrometry Method Sheet dated August 31, 1993, which states that the initial GC/MS test could not confirm for any promazine. The file also contains an undated hand written document entitled Suspicious HU Promazine Sample which states that, after ion-pair screening, the IP3 plate did not reveal promazines where they are normally indicated. These documents record the results of some of the initial screening and testing, and in no way detract from the reliability of the final testing and analysis. On September 9, 1993, Carrie Delcomyn, Petitioner's Confirmation Chemist II, requested that David Tiffany, Petitioner's SA/MD Chemist Administrator, run appropriate ELISA screening on the two (2) hour and four (4) hour promazine administrations, numbers 45595B and 45596B, because they were to be used for a possible confirmation of a promazine metabolite seen in the suspect sample. That same day, David Tiffany responded that promazine was not detected using the IDS promazine assay. Mr. Tiffany's response does not imply that the subsequent testing for confirmation of a promazine metabolite in the suspect sample failed to identify 3-hydroxypromazine. In the final analysis, testing and retesting of laboratory sample number 58511F with the GC/MS confirmed the presence of 3-hydroxypromazine, a metabolite of promazine (a tranquilizer and class 3 drug). Someone would have to administer promazine to a horse for it to produce a urine sample containing 3-hydroxypromazine. A chemist administrator reviews the file of a positive sample to ensure the integrity of the chain of custody before a sample is conclusively labeled "positive." A proper chain of custody is an integral part of the positive sample review process. In this case, David Tiffany reviewed the file for sample number 58511F and found it to be in proper order. On October 22, 1993, a Report of Positive Results was generated by Patrick T. Russell, Petitioner's Bureau Chief, Bureau of Laboratory Services. This report was sent to William E. Tabor, Director of the Division of Pari- Mutuel Wagering, and states that sample number 908605 (laboratory number 58511F) contained 3-hydroxypromazine (a tranquilizer and Class 3 drug). The record contains no explanation for the discrepancy in the date of the report and the date the Judges/Stewards issued their ruling on October 18, 1993. On November 3, 1993, Respondent requested a split sample analysis pursuant to Section 550.2415(5), Florida Statutes and Rule 61D-1.010, Florida Administrative Code. The split sample was sent to and analyzed by Center for Tox Services, an independent laboratory. Testing of the split sample confirmed the result of the state laboratory. A letter dated November 17, 1993, from the independent laboratory states that: . . .the laboratory was able to detect the 3-OH promazine utilizing both ELISA and GC/MS techniques. We had no difficulty in detecting the substance using GC/MS. The primary reason for easy detection was due to the fact that the metabolite was present at a concentration that exceeded our detection limit or met our criteria for full scale analysis. There is no doubt that 3-OH promazine was present in the sample we analyzed. The GC/MS operator did not set-up his analysis to quantitate the amount of 3-OH promazine in the urine sample. It was not requested. The above quoted passage from the Center for Tox Services letter clearly does not contain any implications as to the quantity of promazine administered to Coast Express. The testimony of Dr. Mark Phillips, the horse's veterinarian, implied that a quantity of promazine administered could be established by virtue of the positive tests reported by the state and independent laboratories. His opinion regarding the quantity and effect of a dosage of promazine which would test positive on a GC/MS instrument is rejected because it is based on technology which is no longer up to date with current testing standards. Additionally Dr. Phillips testimony is contrary to the testimony of Petitioner's expert, David Tiffany, which is more persuasive. Promazine is a drug used as a tranquilizer. It is possible for a horse to race well after having been administered a very small dose of promazine. This would be particularly true if the horse had a history of being "hot." "Hot" is a term commonly used in the standardbred horse racing industry for a horse that is nervous and difficult to handle. A very small dose of promazine could enhance the performance of a "hot" horse by calming it down. Under those circumstances, the horse might not exhibit behavioral changes which would be noticeable, i. e. the horse might still appear to be "hot." On the other hand, a normal dose of promazine would cause a horse to be too sluggish to race. Coast Express was typically a "hot" horse. On August 20, 1993, there was no discernible difference in his behavior. He was "hot", hard to handle, and the opposite of calm or sluggish. It was apparent that Coast Express had not been given a normal tranquilizing dose of promazine. However, there is clear and convincing record evidence that some amount of promazine was in his system on August 20, 1993, which could have enhanced his performance and enabled him to set a record time of 157.1. Respondent's experts testified that Coast Express's individual best time of 157.1 on August 20, 1993, is consistent with his immediate racing history of 157.3 on August 13, 1993, and September 3, 1993. This testimony is rejected to the extent it implies that the horse's system was free of promazine on August 20, 1993, because it is contrary to more persuasive evidence. Promazine is a prescription drug. Dr. Mark Phillips, Coast Express's veterinarian, testified that he never prescribed promazine for the horse. Promazine is normally fed to a horse. Coast Express is a very picky eater and probably would not eat feed with a drug in it. However, promazine can also be injected. There is no evidence that Respondent or anyone under his control administered promazine to Coast Express. There is no evidence that either of the owners, Nellie Hammel and Fred Segal, administered the drug. However, record evidence indicates that for a period of time on race day, Coast Express was left unsupervised. Someone could have given the drug to Coast Express during that time. Respondent presented positive testimony relative to his character and good reputation in the harness racing industry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Petitioner issue a Final Order finding that Respondent, as trainer of record for the horse Coast Express, is responsible for a violation of Section 2415(1)(a), Florida Statutes, occurring on August 20, 1993, at Pompano. Additionally, the undersigned recommends that said Final Order: (1) suspend Respondent's occupational license for forty-five (45) days; (2) deny Respondent use of the Pompano stable area during his suspension; (3) declare any horse Respondent owns or trains ineligible to race during his suspension; (4) redistribute the purse of $2,750 won in the subject race; (5) disqualify and replace Coast Express in the subject race; and (6) disallow Coast Express from holding the lifetime mark of 157.1 RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of February, 1995. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5018 The following constitute specific rulings, pursuant to Section 120.59(2) Florida Statutes, on the parties' respective proposed findings of fact: Petitioner's Proposed Findings of Fact: 1-7 Accepted in substance and incorporated in paragraphs 1-7 pursuant to the parties' stipulation of facts. 8-20 Accepted in substance and incorporated in paragraphs 8-20. Accepted in paragraph 23. Accepted in paragraph 24. 23-24 Accepted in paragraph 25. Accepted in paragraph 26. Accepted in paragraph 27. Accepted in paragraph 29. Accepted in paragraph 30. Accepted in paragraph 28. Respondent's Proposed Findings of Fact: 1-5 Accepted in paragraphs 1-5. Accepted in part in paragraph 6 and rejected in part in paragraph 32. Except for subordinate information, accepted in paragraphs 7-9 and 15-16. Accepted in paragraphs 19 and 21-22. 9-10 Not included in Respondent's proposed findings of fact. Accepted in paragraph 20. Accepted in paragraph 27. Accepted in paragraphs 30-31 as modified. Accepted in part in paragraph 31 but last sentence rejected as contrary to more persuasive evidence. Accepted in paragraph 26 as modified. Accepted in paragraphs 33-34. Accepted in paragraph 36 for consideration only as to appropriate discipline. COPIES FURNISHED: Joseph M. Helton, Jr. Senior Attorney Dept. of Business & Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tim A. Shane, Esquire 2455 East Sunrise Blvd. Suite 905 Fort Lauderdale, Florida 33304 George Stewart, Acting Secretary Morthwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
The Issue Whether Respondent's policy of treating "Gretna-style" barrel match racing as the legal equivalent of traditional quarter horse racing, i.e., a legitimate pari-mutuel wagering event for which a quarter horse racing permitholder can obtain an annual operating license, constitutes an agency statement of general applicability that implements, interprets, or prescribes law or policy in violation of section 120.54(1)(a), Florida Statutes (2012).1
Findings Of Fact Parties Respondent Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division"), is the state agency responsible for implementing and enforcing Florida's pari-mutuel laws. Its duties include the licensing and regulation of all pari-mutuel activities in Florida. Petitioner Florida Quarter Horse Racing Association ("FQHRA") is a nonprofit Florida corporation located in Tallahassee, Florida. FQHRA's main function is to promote the ownership, breeding, and racing of quarter horses, a function which includes representing individuals who have an interest in racing quarter horses in Florida. FQHRA, moreover, is assigned functions by statute related to quarter horse racing in Florida, which include representing quarter horse owners in negotiating purse agreements with quarter horse permitholders, pursuant to section 849.086(13)(d)3, Florida Statutes, and setting the schedule of racing at quarter horse racetracks, pursuant to section 550.002(11). Petitioner Florida Quarter Horse Breeders and Owners Association ("FQHBOA") is a nonprofit Florida corporation located in Tallahassee, Florida. FQHBOA's main functions are to receive and distribute breeder and owner awards for quarter horse races in Florida. Section 550.2625(5)(a), Florida Statutes, designates FQHBOA to be the recipient of a portion of the racing revenues from all quarter horse races conducted in Florida, which funds are to be used for the promotion of racing quarter horses in Florida. FQHBOA administers the accredited Florida-bred program and breeders' awards for quarter horses. Gerald Keesling is an owner, breeder, and trainer of race horses competing in quarter horse racing. He has been involved with quarter horse racing for more than thirty years and has raced quarter horses at various tracks around the country, including Pompano Park and Hialeah Park in Florida. Intervenor is an entity formed and operated for the purpose of advancing the interests of "new" quarter horse permitholders in the legislature and before administrative agencies. According to its corporate representative, Intervenor was formed "to advocate for the elimination of the restrictions" facing new quarter horse permitholders in order "to allow these new permitholders to secure the gaming rights that all of the other permitholders around the state had secured." Pari-mutuel Wagering Gambling is considered to be inherently dangerous to society.3 This societal disapprobation is reflected in the widespread prohibitions on gambling activities found in Florida law. Indeed, an entire chapter of the Florida Statutes——chapter 849——is devoted to criminalizing many forms of gambling. This case involves a species of gambling known as lotteries, and a specific kind of lottery referred to as pari-mutuel wagering. In pari-mutuel wagering, bets placed on the outcome of a race or game are pooled, and the payout to the winners is drawn from that pool, so that the winners divide the total amount bet (the "handle"), less management expenses and taxes. See § 550.002(13),(22), Fla. Stat. The Florida Constitution categorically prohibits lotteries such as pari-mutuel pools, but makes an exception for certain types of pari-mutuel activities, which the legislature may permit in the exercise of its police powers. See Art. X, § 7, Fla. Const.4 Pursuant to chapter 550, Florida Statutes, which is known as the Florida Pari-mutuel Wagering Act (the "Act"), the legislature has legalized pari-mutuel wagering on dog racing, jai alai, and three distinct types of horseracing, namely harness racing, in which standardbred horses pull two-wheeled "sulkies" guided by a driver; thoroughbred horse racing; and quarter horse racing. The Act empowers the Division to regulate and closely supervise pari-mutuel wagering, which is a criminal activity if not conducted in compliance with the Act. See, e.g., § 550.255, Fla. Stat. Any person who desires to conduct pari-mutuel operations on one of the five types of authorized pari-mutuel activities must apply to the Division for a permit. Such a permit is a necessary, but not sufficient, condition of conducting pari-mutuel performances; a license, too, is required. Before a permit can become effective, however, it must be approved by a majority of the voters in the county in which the applicant proposes to conduct pari-mutuel wagering activities. See § 550.054(2), Fla. Stat. After the Division has issued a permit and the permit has been approved in a ratification election, the permitholder must apply to the Division for an annual license to conduct pari-mutuel operations. See § 550.0115, Fla. Stat. This permitholder license——sometimes also called an "annual license," "operating license," "dates license," or simply a "license"——is "an annual license issued by the division to conduct pari-mutuel operations at a location specified in the permit for a specific type of pari-mutuel event specified in the permit." See Fla. Admin. Code R. 61D-2.001(12). The annual license gives a permitholder authority to conduct the pari-mutuel wagering activity authorized under its permit on the dates identified in the license. The Act mandates that the Division exercise its regulatory power to "adopt reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees and for the holding, conducting, and operating of all racetracks, race meets, and races held in this state," which "rules must be uniform in their application and effect." See § 550.0251(3), Fla. Stat. Quarter Horse Racing Quarter horse racing is widely known as a type of horse racing in which multiple horses——specifically, American Quarter Horses——compete head-to-head in short-distance races, running at high speed. The American Quarter Horse breed took its name from the length of the race in which its members excel, i.e., the quarter mile. The American Quarter Horse Association ("AQHA") is an organization of quarter horse owners, breeders, and trainers. It publishes the official breed registry for quarter horses. In addition, AQHA issues rules and standards for quarter horse racing conducted throughout the United States and abroad, and it keeps official records relating to all quarter horse races registered with AQHA. AQHA publishes an Official Handbook of Rules and Regulations, which includes a section devoted to Racing Rules and Regulations setting forth the standards and requirements that a race must meet to be recognized by AQHA as a quarter horse race. AQHA works through state-level affiliates. FQHRA is AQHA's affiliate for the state of Florida. Quarter horse racing is part of the long established pari-mutuel racing industry in Florida, which dates back to the 1930s. Before 2011, the type of quarter horse race on which pari-mutuel wagering was conducted in Florida involved a contest between approximately eight to ten horses sprinting side-by-side on a flat, oval racetrack, beginning at a single starting gate and ending when the horses crossed a common finish line. Races of this type——which will be referred to as "traditional" quarter horse races——were conducted at two of Florida's historic pari- mutuel racetracks, Pompano Park and Hialeah Park. For almost eighteen years beginning in the early 1990s, no pari-mutuel quarter horse racing was conducted in Florida. During this time, owners of racing quarter horses, such as Mr. Keesling, transported their horses to other states to participate in quarter horse racing. In the summer of 2005, AQHA organized a meeting in Ocala, Florida, to gauge and foster interest in the development of quarter horse racetracks in Florida. AQHA's efforts eventually bore some fruit. In 2008, the Division issued a permit to conduct pari-mutuel wagering on quarter horse races at Hialeah Park. Quarter horse racing resumed at Hialeah Park in 2009 and has continued under annual licenses issued each year since then. The events at Hialeah Park are traditional quarter horse races. As of this writing, Hialeah Park is the only pari-mutuel facility in Florida where quarter horse races recognized by AQHA are held. Barrel Racing Barrel racing is a kind of obstacle race on horseback——often performed at rodeos, horse shows, and fairs——in which a horse and rider complete a cloverleaf pattern around three barrels arranged in a triangular shape inside a rectangular "arena." Barrel racing is a separate discipline from horse racing conducted on flat tracks, such as traditional quarter horse racing. A challenge involving speed, strength, and agility, barrel racing is a timed event, with each contestant running individually, one after the other, in an attempt to complete the course in the fastest time possible. A penalty of five seconds is added to a horse's time for colliding with a barrel. The outcome of the contest is determined by each horse's respective time; the winner is the horse having the shortest time. Gretna Racing——The Permit On March 18, 2008, Gretna Racing, LLC ("Gretna Racing"), submitted an application to the Division seeking a pari-mutuel permit to operate a quarter horse racetrack in Gretna, a small city in Gadsden County, Florida. Included in the application were a business plan summary and a drawing of the planned racetrack. In its business plan, Gretna Racing informed the Division of its intent to construct "a Quarter Horse racetrack that will allow racing at standard Quarter Horse racing distances." The drawing attached to the application depicted a conventional oval racetrack of the type on which traditional quarter horse races are run. On July 31, 2008, Gretna Racing sent the Division a revised site plan showing a modified quarter horse racetrack design known as a "J-loop." Environmental concerns had prompted the change in the proposed shape of the planned racetrack. As drawn, the J-loop track was capable of accommodating traditional quarter horse races. At no time while Gretna Racing's application was pending did Gretna Racing tell the Division that it planned to conduct any type of pari-mutuel activity other than traditional quarter horse racing or to construct any type of race course other than an oval or J-loop quarter horse racetrack. On September 12, 2008, the Division issued a permit to Gretna Racing for the conduct of pari-mutuel wagering on quarter horse racing in Gadsden County. The permit authorizes Gretna Racing to "Operate A Quarter Horse Racetrack". After receiving the permit, Gretna Racing did not build either an oval race course or a J-loop quarter horse racetrack as depicted in its application. As of this writing, no such racetrack has been constructed at Gretna Racing's pari- mutuel facility in Gadsden County. Gretna Racing——The License On September 6, 2011, Gretna Racing submitted an application to the Division for an annual license authorizing operating dates on which to conduct pari-mutuel wagering pursuant to its quarter horse racing permit. In the following weeks, Gretna Racing communicated frequently with the Division regarding Gretna Racing's intent to conduct a novel form of barrel racing as a pari-mutuel wagering event under its permit. The type of contest that Gretna Racing had in mind had never before been licensed or regulated by the Division as a pari- mutuel event. At a meeting with Division officials in September 2011, Gretna Racing delivered a PowerPoint presentation in which it characterized the proposed pari-mutuel activity as "the Barrel Horse Race" and advocated for its "[i]ntroduction as a Pari-mutuel Wagering event in Florida . . . ." Among other things, the PowerPoint slide show included a description of the race pattern for barrel racing as a "traditional cloverleaf with 75 feet between barrels 1 and 2 and 90 feet between barrels 2 and 3." This narrative was accompanied by the following diagram, which depicts a single horse running around three barrels in a rectangular arena: Although Gretna Racing referred to the performances it proposed to conduct as "barrel racing"——a term which the parties have continued to use in this litigation——the "Gretna-style" barrel race differs somewhat from the traditional rodeo-style barrel race. The unique twist that Gretna-style barrel racing introduces is the "match race" format, which entails placing two separate arenas next to each other and running two horses simultaneously around two separate, albeit adjacent, barrel courses whose "[p]atterns are identical," according to Gretna Racing's PowerPoint presentation. In the materials that Gretna Racing gave to the Division while lobbying for approval of its first annual license, the separate courses were depicted as follows: As the foregoing pictures show, instead of having the competing horses run one at a time the way traditional barrel races are conducted, the Gretna-style contest requires the horses to run in pairs, with each horse maneuvering around its own barrel course, inside a separate, fenced-in arena, the two arenas separated by an eight-foot-wide alley. Thus, Gretna- style barrel racing is basically traditional barrel racing "times two", i.e., two rodeo-style barrel races performed at once. This gives the event the appearance, at least, of a match race between two horses. In reality, however, the Gretna-style barrel match race ("BMR"5) is not so much a competition between two horses as it is an event comprising two individual performances by horses competing independently against the clock on their respective obstacle courses. This is because each horse, isolated in its own enclosed arena, separately attempts to negotiate the barrels in the quickest time possible; there is negligible (if any) competitive interaction between the horses in the "match race." Moreover, inasmuch as the most important indicator of a barrel- race horse's success is its personal time, being the first horse to finish——and hence the winner of——a given BMR is something of an arbitrary achievement, determined by the convenience of the pairing instead of the intrinsic nature of the competition. For any BMR between horses A and B, the winner——whichever completes the obstacle course the fastest——could just as well be determined by running the horses one after the other, in the traditional rodeo-style barrel racing format. BMR artificially imposes the determinative element of "order of finish" on a type of contest that does not inherently require simultaneity of performances as a necessary condition of the competition.6 The Division employees reviewing Gretna Racing's application for licensure had never seen anything like BMR before. They were acutely aware, from the beginning, that Gretna Racing's proposal to conduct pari-mutuel operations on this new kind of contest, with which the Division was unfamiliar, was hardly routine, raising as it did questions of first impression for the Division. As one of them wrote in an e-mail to the Division director dated September 9, 2011, Gretna Racing wanted "to do barrel racing instead of traditional quarter horse racing, along with the possibility of other timed events like calf roping and cutting horse events. Not traditional venues for us." Understandably, Gretna Racing's application was the subject of much internal discussion, genuine disagreement, and, predictably, some controversy. The details of these deliberations are unimportant. What matters——and what the evidence clearly shows——is that the Division knew that Gretna Racing, as a quarter horse permitholder, was seeking approval to conduct pari-mutuel wagering on BMR, an original type of contest that differed substantially from traditional quarter horse racing. Further, as the result of lobbying on both sides of the issue, the Division was thoroughly familiar with the essential attributes of the BMR performances Gretna Racing planned to hold. Finally, the Division understood that, if licensed, Gretna Racing would conduct pari-mutuel operations on BMR to the exclusion of traditional quarter horse racing. In a September 30, 2011, e-mail to Joe Dillmore, who had by then been named acting director of the Division, an attorney for Gretna Racing advanced a legal argument for allowing BMR as a new pari-mutuel activity, which was premised on section 550.334(5), Florida Statutes. That statute allows a quarter horse permitholder to substitute races of other breeds of horse——including the American Cracker Horse——for up to "50 percent of the quarter horse races during its meet." Gretna Racing asserted that the cracker horse is a "'rodeo' breed" whose members compete in "equestrian events such as barrel racing, pole bending, stump racing, and calf roping"——but not flat track racing. On that basis, Gretna Racing contended that the legislature, in enacting section 550.334(5), must have "intended for [the American Cracker Horse] to be wagered upon via its widely accepted and practiced racing, namely barrel racing and the like." Gretna Racing argued that the barrel match "racing [it had] proposed . . . meets the statutory definition of racing under a quarter horse permit." It is clear from the evidence that, in submitting its application and seeking approval to conduct pari-mutuel wagering on BMR, Gretna Racing realized it needed the Division to interpret the Act as having legalized pari-mutuel wagering on BMR. Gretna Racing urged the Division to implement such an interpretation through the issuance of an annual license to Gretna Racing authorizing performances of BMR as a pari-mutuel event. On October 19, 2011, the Division issued an annual operating license, number 542, to Gretna Racing, which gave the licensee the authority to conduct 41 total performances under its quarter horse racing permit during the 2011/2012 season. The license does not mention BMR or any other pari-mutuel activity. As a matter of law, however, the license necessarily gave Gretna Racing approval to hold performances of the "specific type of pari-mutuel event specified in [its] permit," i.e., quarter horse racing, and only such performances; the license could do nothing else. See Fla. Admin. Code R. 61D- 2.001(12). Thus, the issuance of license no. 542 at once manifested and implemented the Division's determination that BMR is quarter horse racing for purposes of the Act. Had the Division not made such a determination, it could not have issued license no. 542, for it knew that Gretna Racing intended to hold BMR performances. Nevertheless, the Division was reluctant to express this determination in an unambiguous public declaration, and this reticence has remained throughout the instant proceeding. For example, on October 4, 2011, a couple of weeks before the issuance of license no. 542, a writer for BloodHorse.com, an online trade magazine, sent an e-mail to the Division's spokesperson inquiring "whether [the Division] has determined if barrel racing is permissible for a Quarter Horse permit holder." The spokesperson drafted and circulated internally, via e-mail, a proposed response, namely: "The Department has not made a determination on this subject matter." Department of Business and Professional Regulation Secretary Ken Lawson rejected this, writing in a reply e-mail: "Don't like the answer. We are not deciding on the merits of barrel racing, only on the racing days." The Division, however, of necessity would decide "on the merits" whether BMR was licensable as a pari-mutuel activity under a quarter horse racing permit because that, and not the proposed racing schedule, was the central——and only controversial——question Gretna Racing's application presented. On October 20, 2011, the day after Gretna Racing had received its first annual license, the same BloodHorse.com writer asked the Division to answer the following questions: *What are the reasons under Florida law that you determined it is permissible for Gretna to use its [quarter horse] permit to have pari-mutuel barrel racing? *Does this approval set a precedent for other Florida [quarter horse] permit holders to use them for pari-mutuel barrel racing? *Barrel racing is new under [the Division]. What are some of the major steps needed for riders, judges and others to obtain licenses? In response, the spokesperson sent out what she called a "canned statement" saying that "[a]fter a careful review of the guidelines and statutes as set forth by the Legislature, the Department has determined that [Gretna Racing's] application meets the requirements." In lieu of making a clear public statement announcing the policy behind the issuance of license no. 542, the Division has advanced various theories whose common denominator is the attempt to explain why this license does not reflect, manifest, implement, or announce a decision of consequence to anyone besides Gretna Racing. At hearing, for example, the Division (through the testimony of Mr. Dillmore) took the position that everything regarding pari-mutuel wagering which is not forbidden under the Act is allowed, and that therefore——because the Act does not explicitly prohibit BMR——the Division had to grant Gretna Racing's application.7 This explanation, which turns chapter 550 on its head, is the Division's attempt to deny having given the Act a construction that legalizes BMR as a pari-mutuel activity, by acknowledging only a much narrower (and legally irrelevant) determination, i.e., that the Act does not plainly prohibit BMR.8 At another point during the hearing, the Division's attorney articulated the Division's position as being "that . . . whether [the race is] around barrels" or traditional quarter horse racing, "it is all quarter horse racing."9 This statement is significant because, in its Joint Prehearing Stipulation (joined by Intervenor but not by Petitioners), the Division stated that it has "consistently . . . giv[en] [statutory] terms their plain and ordinary meaning ascertainable by reference to a dictionary." The Division asserted, further, that the meanings of such terms as "'race', 'contest', 'horserace', and 'horseracing' are . . . readily apparent and available via reference to a dictionary." The logical implication of these statements, taken together, is that the Division believes BMR, like traditional quarter horse racing, comes within the plain and ordinary meaning of the term "horse race" (and its variants) as used in the Act, and for that reason is a licensable pari-mutuel activity. This tells that the Division found BMR to be allowed under (as opposed to being, merely, not forbidden by) the Act because the Act permits pari- mutuel wagering operations on quarter horse racing. In its Post-Hearing Brief, the Division tried to tie its positions together in a unified theory of non-responsibility for any general policy regarding pari-mutuel wagering on BMR. The Division's global theory begins with the premise that the agency lacks specific rulemaking authority to define "horseracing."10 From there, the Division reasons that, in carrying out its duties, which include issuing licenses to permitholders, it must implement the statutory language without expanding, limiting, or defining what is or is not meant by "horse racing" and "quarter horse racing." Confusingly, however, the Division simultaneously asserts that the "determination of what is and what is not horse racing is a matter within the exclusive jurisdiction of the Division . . . as the agency assigned the responsibility of administering Chapter 550." Resp. to the Order Re Off'l Recog'n, etc., at 18. The Division attempts to reconcile these seemingly inconsistent positions by drawing a distinction between (a) what it calls "licensing 'policy'" and (b) quasi-legislative policy affecting a wider class of persons.11 When making "licensing policy," the Division believes it can define horseracing for a particular permitholder only; this, in fact, and nothing more, is what it claims to have done in connection with Gretna Racing's application for licensure.12 Yet, the Division apparently felt that, in evaluating Gretna Racing's application, it needed to apply the most inclusive meaning of "horseracing" that reason will allow because, in its view, the pertinent statutes neither restrict the term "horseracing" (except to the extent that the use of certain breeds is required) nor prohibit barrel racing. Thus, under the Division's theory, upon its receipt of Gretna Racing's application for an operational license, the Division's duty was merely to grant or deny the application within 90 days.13 Lacking the power to put limits on horseracing, at least for all persons who would be affected by such limitations, and finding none in the statutes, the Division had to grant the application, given that Gretna Racing possessed a valid quarter horse racing permit and BMR is a form of "horseracing" in at least the broadest sense of the word. At bottom, the Division's position rests on the notion that the intensional meaning of the general term "horse race" (and its variants) as used in the Act includes BMR within its extensional meaning. This statement is of little value, however, without knowing just what attributes the Division regards as common to (and shared only by) all of the contests denoted by the term "horse race"——without knowing, in other words, what the Division considers to be the intension of the operative term. Because the intension of a term determines its extension, i.e., the collection of the objects named, denoted, or referred to thereby, the Division's statement regarding the common attributes of a "horse race" (its intensive definition) is essential for evaluating whether the Division has applied the term correctly and, more important, for deciding whether——as Petitioners contend——the Division has redefined the term so as to expand the scope of pari-mutuel wagering otherwise allowable under the Act. The definition of "horseracing" is critical because any contest that constitutes a licensable horse race for one permitholder must likewise be licensable for all similarly situated permitholders who seek legal sanction to conduct horseracing performances under the Act. Contrary to the Division's theory of "licensing policy," there cannot be one definition of horseracing for this permitholder and another definition for that one. As should be self-evident, the definition of "horse race" for purposes of chapter 550 must apply equally to everyone who seeks to conduct pari-mutuel wagering on horseracing. If, therefore, as Petitioners maintain, the Division has given the term "horse race" a meaning that is not readily apparent from a literal reading of the statutes, then such a definition would constitute a statement of general applicability. Whether the Division has done so will be discussed below. The Consequences of Licensing Gretna Racing Soon after receiving its first annual license, Gretna Racing began conducting pari-mutuel wagering on BMR at its facility in Gadsden County, holding its first performance on December 1, 2011. The BMR performances conducted by Gretna Racing pursuant to its license were substantially the same as they had been described to Division officials while Gretna Racing's application for licensure was under consideration in September and October 2011. Prior to October 19, 2011, the Division had never approved pari-mutuel wagering on BMR performances. In fact, governmentally sanctioned pari-mutuel wagering on barrel racing had never occurred in Florida or anywhere else in the United States until Gretna Racing commenced operations in December 2011. The pari-mutuel barrel match racing as approved by the Division and conducted by Gretna Racing is not recognized or registered by AQHA as quarter horse racing. AQHA does not keep records of the results of the BMR contests held at Gretna Racing's facility as it does for the traditional quarter horse races conducted at Hialeah Park. Because only two horses compete in each race, BMR requires substantially fewer horses and personnel than traditional quarter horse racing as conducted at Hialeah Park. The handle and purses are much smaller,14 too, which means that as a pari-mutuel event, BMR is less lucrative than traditional quarter horse racing for many participants. As currently configured, Gretna Racing's facility cannot accommodate traditional quarter horse racing. At the time of hearing, Gretna Racing's facility was the only pari- mutuel racing plant in Florida whose race courses consisted of barrels or other obstacles for horses to navigate around. Shortly after the Division issued an annual license to Gretna Racing, another quarter horse permitholder, Hamilton Downs Horsetrack, LLC ("Hamilton Downs"), filed an application with the Division requesting a license to conduct barrel racing as a pari-mutuel wagering event in substantially the same fashion as Gretna Racing. Hamilton Downs received a license, number 547, for the 2012/2013 racing season, authorizing the conduct of pari-mutuel operations on BMR performances. On March 15, 2012, the Division renewed Gretna Racing's license no. 542 for the 2012/2013 season, authorizing 38 total performances of BMR at the Gadsden County facility. As a result of the Division's issuance of a license to Gretna Racing, according to Mr. Dillmore, if any quarter horse permitholder "submits an application and says that they're going to conduct quarter horse racing in compliance with [section 550.334(5), which allows other breeds to be used as substitutes for quarter horses provided the licensee is] using 50 percent registered quarter horses in their races[,] and meets the other regulations, [and] they have the detention barn, and the other people are licensed," then the Division will issue the permitholder a license authorizing pari-mutuel wagering on barrel races "as long as they [are] using quarter horses."15 In other words, the Division's decision in October 2011 that pari- mutuel barrel racing is permissible under a quarter horse permit will be relied upon by the Division in processing future requests by quarter horse permitholders to conduct pari-mutuel wagering on barrel racing, as the grant of a license to Hamilton Downs for that purpose demonstrates. The Division's approval of pari-mutuel barrel match racing reflects and implements a statement of agency policy interpreting the Act so as to legalize gambling on barrel racing as a type of pari-mutuel pool recognized under the statutory authorization for quarter horse racing. This new policy, which has not been promulgated as a rule, is a statement of general applicability because it announces an inclusive interpretation of the term "horse race" that will serve as the basis for other quarter horse permitholders to engage in this new form of pari- mutuel activity in lieu of traditional horseracing.
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
