The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) is a state agency charged with the duty and responsibility for regulating the pari-mutuel wagering industry in Florida and those licensed under Chapter 550, Florida Statutes. At all times material hereto, Respondent, Jack J. Garey, held pari-mutuel wagering license number 1470144-1081, was a licensed thoroughbred owner, and was a permitholder authorized to conduct horseracing at permitted facilities in the State of Florida. Calder Race Course (Calder) was, at all times material hereto, a permitholder authorized to conduct horseracing in the State of Florida. Incident to the operation of that business, Calder extended check cashing privileges to trainers, owners and other pari-mutuel wagering licensees. On or about November 3, 1997, Respondent endorsed and presented to Calder for payment two checks, each in the amount of $500.00, which were payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. Both checks, which Calder paid, were returned unpaid because the account was closed. On or about November 12, 1997, Respondent endorsed and presented to Calder for payment a check in the amount of $1,600.00 which as payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The check, which Calder paid, was, as the previous check drawn on such account, returned unpaid because the account was closed. In late November 1997, Michael Abes, the vice president of finance at Calder, spoke with Respondent regarding the returned checks and demanded repayment. In turn, Respondent acknowledged the debt and promised to repay it; however, no payments were forthcoming. On or about December 27, 1997, Respondent endorsed and presented to Calder two more checks for payment. One check was in the amount of $2,000.00 and the other in the amount of $500.00, and each was payable to Respondent and drawn on the account of Karin Montejo and Ramiro Montejo at Barnett Bank. The checks, paid by Calder, were, as with the previous checks drawn on the same account, returned unpaid because the account was closed. Given the return of the previous checks and his discussion with Mr. Abes, it cannot be subject to serious dispute that Respondent knew when he presented the checks to Calder for payment, that the account on which the checks were drawn had been closed and that they would not be honored by the bank. Despite numerous demands, Respondent did not pay any portion of the outstanding obligation owed Calder until February 1998, when a payment of $300.00 was remitted. Subsequently, on June 5, 1998, the balance of the outstanding obligation due Calder was paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of Subsection 550.105(6), Florida Statutes, as alleged in Count I of the Administrative Complaint and imposing, as a penalty for such violation, an administrative fine of $300.00, a 30-day suspension, and exclusion from all pari-mutuel facilities in the state for the period of suspension. DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1999.
The Issue Whether Respondent violated sections 550.105(4) and (7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 61D-2.005, as applicable, by engaging in the following conduct, as alleged in the First Amended Administrative Complaint: (1) assisting an unlicensed person in working in a restricted area at a licensed pari-mutuel wagering facility, in violation of section 550.105(4) and rule 61D-2.005; and (2) accumulating unpaid obligations directly related to the sport of pari-mutuel racing, in violation of section 550.105(7); and, if so, the penalty that should be imposed.
Findings Of Fact The Parties and Licensure Status Petitioner is the state agency charged with regulating pari-mutuel wagering in the state of Florida pursuant to chapter 550. At all times relevant to this proceeding, Respondent was the holder of Pari-Mutuel Wagering Individual Occupational License No. 2005775-1021, which authorizes him to own and train racing horses in this state pursuant to chapter 550. At all times relevant to this proceeding, Respondent trained and raced horses at Gulfstream Park ("Gulfstream"), a facility operated by a permitholder authorized to conduct pari- mutuel wagering in this state pursuant to chapter 550. The Administrative Complaint At all times relevant to this proceeding, Respondent was subject to chapter 550 and applicable rules codified in Florida Administrative Code Chapter 61D-2. On or about March 29, 2017, Petitioner served its Administrative Complaint on Respondent, charging him with two counts of violating statutes and rules governing pari-mutuel racing. Count I of the Administrative Complaint charges Respondent with "conspiring with, soliciting, aiding, abetting, counseling, hiring, or procuring" Salvador Domingo Ramos to work in a restricted area of Gulfstream on or about July 25, 2016. If proved, this conduct would violate section 550.105(4), which makes it unlawful to take part in any way at any pari-mutuel facility without first having secured an occupational license and paid the occupational license fee; and also would violate rule 61D-2.005, which, among other things, prohibits a licensee from conspiring with, aiding, abetting, counseling, hiring, or procuring any other person or persons to engage in a violation of chapter 550. Count II of the Administrative Complaint charges Respondent with "accumulating unpaid obligations that directly relate to the sport of racing at a pari-mutuel facility in Florida." If proved, this conduct would violate section 550.105(7), which, among other things, makes a sanctionable offense the accumulation of unpaid obligations that directly relate to the sport of racing being conducted at a pari- mutuel facility in this state. The Evidence Adduced at Hearing Count I On July 25, 2016, Julio Minaya, an investigative supervisor employed by Petitioner, engaged in an inspection of the "backside" of Gulfstream. Specifically, Minaya and the investigative team he supervised inspected barn nos. 21, 22, and 23 at Gulfstream. The "backside" is a secured area at a pari-mutuel facility that contains the barns and stables, where the racing horses are housed, and the race tracks. Only persons who hold occupational licenses or who are otherwise authorized are allowed to enter and engage in activities in the backside, and security officers are hired to guard the backside and ensure that unauthorized persons do not enter this area. As part of the inspection on July 25, 2016, Minaya requested each person encountered in barn nos. 21, 22, and 23 to provide his or her occupational license for inspection, in order to ensure that the person was licensed and that the license was valid. During the July 25, 2016, inspection of the backside at Gulfstream, a member of the Minaya's investigative team encountered a person in a storage room within barn no. 23. The man, who ultimately identified himself as Salvadore Domingo Ramos, told Minaya that he did not have his license with him. At that point, Minaya informed Ramos that he would have to leave the backside. As Minaya escorted him out of the backside, Ramos told Minaya that he worked for Respondent, that he did not have "any papers," and that he was just trying to work. Minaya interpreted Ramos's comments to mean that he (Ramos) was an undocumented immigrant, so would not have a valid occupational license. Minaya then contacted Respondent, who told him that Ramos had been working for him, exercising his horses, for approximately a month and a half. Respondent told Minaya that he did not know that Ramos was unlicensed, but that had seen Ramos exercising other trainers' horses, so assumed Ramos was licensed. At the final hearing, Respondent testified that Ramos had worked for him, for compensation, as an exerciser for the horses Respondent trained. Respondent further testified that he knew that unlicensed persons could not be hired to work in any capacity in the backside, and he acknowledged that he did not ask Ramos for his license before he hired him to exercise his horses. However, he noted that persons who go into the backside must pass through a security check at which they must show their license to gain entry. Because Respondent had seen Ramos on numerous occasions in the backside exercising other trainers' horses, he assumed that Ramos was licensed. The evidence, consisting of testimony by Petitioner's licensing administrator and supporting documentation from Petitioner's licensing computer database, confirmed that Ramos did not hold an occupational license on July 25, 2016, and had never held such a license. Count II Finish Line Feed, Inc. ("Finish Line"), is a business that sells animal food products. Ninety percent of its business is selling equestrian hand grain in Florida to race track facilities and to individuals who train and race horses at race tracks in Florida that hold pari-mutuel events. Doreen DeFonzono, office manager at Finish Line, is responsible for keeping records of all sales transactions for Finish Line. DeFonzono testified, and provided copies of customer account statements showing, that Respondent was a customer of Finish Line and that he purchased equestrian food products from Finish Line over a period of time. DeFonzono testified, credibly, that the food Respondent purchased was delivered to him at a pari-mutuel facility in Florida. The evidence shows that Respondent often was arrears in paying his account balance with Finish Line, but that he periodically would pay part of the outstanding balance. The customer account statements show on November 30, 2015, Respondent paid $500.00 toward his outstanding account balance. After this payment, Respondent's outstanding balance was $12,915.91. Thereafter, Respondent did not make any further payments toward his customer account balance. Finance charges on the outstanding balance accrued monthly, so that by July 31, 2016, Respondent's outstanding account balance was $13,986.06. Thereafter, Finish Line filed suit against Respondent to recover the amount Respondent owed. The court entered a Default and Final Judgment by Default ("Default Judgment") against Respondent in Case No. COCE-16-019754DIV 54, ordering Respondent to pay a total of $15,458.14 to Finish Line for the outstanding principal balance of $13,986.06, plus filing, process service, and attorney fees. The Default Judgment was recorded in the Broward County public records on December 14, 2016. DeFonzono credibly testified that to date, Respondent still owes Finish Line the amount of the Default Judgment, plus accrued interest, and that Finish Line and Respondent have not discussed or entered into any repayment agreements regarding the amount Respondent owes Finish Line. Respondent does not dispute that he did not fully pay off his balance with Finish Line or that a Default Judgment was entered against him. He testified that he had been a customer of Finish Line from 2004 to 2015. His credible testimony, supported by the customer account statements, showed that he made periodic payments in an effort to reduce his outstanding balance. He testified, credibly, that he fell on bad financial times, and that a number of unfortunate events and circumstances——including having an accident, breaking his hip, losing his driver's license, becoming unemployed, and being unable to pay workers' compensation insurance for any employees he may hire——rendered him unable to revive his horse training and racing business, so that he was, and remains, unable to pay the amount he owes Finish Line. Respondent currently is unemployed and does not train or race horses at Gulfstream or any other pari-mutuel facility. Findings Regarding Alleged Violations Based on the foregoing, Petitioner has shown, by clear and convincing evidence, that Respondent hired an unlicensed person to work for him in a restricted area of Gulfstream on or about July 25, 2016. This conduct violates section 550.105(4), which makes it unlawful to take part in any way at any pari- mutuel facility without first having secured an occupational license and paid the occupational license fee. This conduct also violates rule 61D-2.005, which, among other things, prohibits a licensee from hiring any other person to engage in a violation of chapter 550. Based on the foregoing, Petitioner has shown, by clear and convincing evidence, that Respondent accumulated unpaid obligations that directly relate to the sport of racing at a pari-mutuel facility in Florida. This conduct violates section 550.105(7), which, among other things, makes a sanctionable offense the accumulation of unpaid obligations that directly relate to the sport of racing being conducted at a pari- mutuel facility in this state. Aggravating or Mitigating Circumstances There was no evidence presented showing that Respondent previously violated any laws or rules regarding pari-mutuel wagering or pari-mutuel wagering facilities in Florida. Additionally, the evidence shows that Respondent did not knowingly or willfully hire an unlicensed person. As Respondent persuasively testified, he had seen Ramos on the premises in the backside of Gulfstream working for other trainers, so assumed that he was licensed. Respondent did not know Ramos was unlicensed when he hired him. The evidence further shows that due, at least in part, to a series of significant, unfortunate events and setbacks, Respondent is unemployed, so is not in a financial position to purchase the insurance necessary for him to be able to restart his horse training business. These hardships have rendered Respondent unable to pay Finish Line the balance owed pursuant to the Default Judgment. The evidence does not show that Respondent is, or has been, financially able to pay Finish Line the balance he owes but has simply chosen not to do so.2/ The evidence also does not show that Respondent bought products from Finish Line, intending not to pay for them or knowing that he was not going to pay for them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding and concluding that Respondent violated sections 550.105(4) and 550.105(7), Florida Statutes, and Florida Administrative Code Rule 61D-2.005; imposing a fine of $100.00 to be paid over a period of six months of the date of the final order; and suspending Respondent's occupational license until such time as either: (1) Respondent has repaid his debt to Finish Line in full, or (2) Respondent has entered into an agreement with Finish Line to repay his debt and he has been in compliance with that agreement for a period of six months. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018.
Findings Of Fact At all times material hereto, Respondent, Richard Tortora (Tortora), held pari-mutuel wagering occupational license number 0066650, as a thoroughbred trainer. Tortora has been licensed since 1979, and has not previously been the subject of a disciplinary proceeding. Tortora was a participating trainer during the 1956 thoroughbred meet at Calder Race Course, an association authorized to conduct thoroughbred racing in the State of Florida. On August 2, 1986, Tortora was the trainer of the horse "Chief Again," the winner of the fourth race at Calder Race Course that day. Immediately following the race, the Division, consistent with its standard practice, took a urine sample from "Chief Again" for analysis by the Division's laboratory. The parties have stipulated that the chain of custody of the urine sample was not breached, and that the urine sample was properly taken, packaged and delivered to the Division's laboratory for testing. The parties have further stipulated that a portion of the urine sample was delivered to Dr. Richard Sams, Equine Testing Laboratory, College of Veterinary Medicine, Ohio State University, Columbus, Ohio, for testing on behalf of Tortora, and that such sample was properly taken, packaged, and delivered. Upon analysis, the urin sample taken from "chief Again" proved positive for the presence of the drug butorphanol, a schedule 3 narcotic. Butorphanol is a potent analgesic, traditionally used to control the intestinal pain associated with equine colic. In therapeutic dosage, butorphanol renders the animal immobile, however, at low dosages it will act as a stimulant. In reaching the conclusion that "Chief Again" was shown to have raced with the narcotic butorphanol in his system, the evidence offered on behalf of Tortora, through Drs. Sams and Maylin, has not been overlooked. Such evidence failed, however to detract from the credible and compelling nature of the Division's proof. The Division's analysis was composed of sequential screening procedures designed to initially identify the presence of an unusual substance and ultimately identify the compound. Throughout the Division's initial procedures, the urine taken from "Chief Again" was consistently identified as containing an opiate with characteristics consistent with those of butorphanol. Ultimately the Division subjected the sample to gas chromatographic/mass spectral analysis. This refined analysis confirmed the presence of butorphonal. The consistency of the Division's findings at all levels of its testing provides compelling evidence that the urine sample taken from "Chief Again" did contain the narcotic butorphonal. Following the Division's testing, Tortora requested that it furnish the balance of the urine sample taken from "Chief Again", approximately 2om1, to Dr. Richard Sams for analysis. Dr. Sams subjected the sample to gas chromatographic/mass spectral analysis and found no evidence of butorphanol. While finding no evidence of butorphanol, Dr. Sams did not conclude that the sample did not contain the narcotic, but merely that he was unable to detect its presence. According to Dr. Sams, the limited volume of urine available for testing compromised his ability to detect the presence of butorphanol. He affirmatively concluded, however, that the Division's data was properly prepared and adequate to support a positive finding of butorphanol in the sample. Dr. Maylin's testimony was premised on a review of Dr. Sams' and the Division's written test reports, he undertook no independent analysis, and was not privy to any testimony offered at hearing. Dr. Maylin opined that if butorphanol were present Dr. Sams should have detected it and, based on certain assumptions, that the Division reported a false finding because of laboratory contamination. Dr. Maylin's opinions are rejected. Dr. Sams is familiar with the equipment and procedures he utilized. He of all people is most familiar with the capabilities and reliability of that analysis. Dr. Maylin's opinion that the analysis ran by Dr. Sams had more import than Dr. Sams ascribed to it is not credible. Dr. Maylin's opinion that the Division reported a false finding is likewise not credited. Dr. Maylin's opinion was predicated on the assumption that proper testing procedures were not followed. Dr. Maylin's assumptions were incorrect. While "Chief Again's" urine was found to test positive for butorphanol, Tortora denies any knowledge of how the narcotic could have been introduced into the horse's system. According to Tortora he was unfamiliar with this narcotic until these charges were brought, and "Chief Again" was not under any medical treatment. Tortora offered no evidence, however, of what provisions he took, if any, to supervise or otherwise protect "Chief Again's" integrity.
The Issue Whether Respondent, a pari-mutuel wagering occupational licensing holder, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent held pari-mutuel wagering license number 0680747-1081. Prior to November 14, 1994, Kenneth Manness, a blacksmith who does business as Better Hooves, Inc., provided services and supplies at the request of Respondent for horses which Respondent kept and raced on the grounds of the Pompano Park Harness Track during the 1994 meet. Mr. Manness, d/b/a Better Hooves, Inc., made repeated demands for Respondent to pay the bills that had been submitted to him for these services and supplies. Respondent failed to pay this debt. This debt was for services and supplies that directly relate to racing at a pari-mutuel facility within the State of Florida. Mr. Manness, d/b/a Better Hooves, Inc., filed suit against Respondent based on this indebtedness in the County Court of Broward County, Florida where the proceeding was assigned Case Number CO-NO-94-001685. On November 14, 1994, a default judgment was entered against Respondent in the County Court proceeding. The Court found that Respondent was indebted to Mr. Manness, d/b/a Better Hooves, Inc., in the principal amount of $1,332.30 and ordered Respondent to pay that amount plus costs in the amount of $115.00, for a total of $1,437.30. Interest was to accrue at the rate of 12 percent per annum. As of the date of the formal hearing, Respondent had paid none of this indebtedness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Respondent's pari-mutuel wagering occupational license be revoked. It is further recommended that Respondent be given leave to apply for licensure after he submits proof that the judgment described in this Recommended Order has been fully satisfied. DONE AND ENTERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 30th day of July, 1996. COPIES FURNISHED: Thomas W. Darby, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mr. Claude D. Richards 10 Parkwood Road Westbury, New York 11590 Royal H. Logan, Acting 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 Whether the Petitioner's application for a Pari-Mutuel Wagering occupational license and request for a waiver should be granted or denied for the reasons set forth in the Respondent's letter dated August 20, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for issuing occupational licenses to employees of pari-mutuel facilities in Florida. See § 550.105(1), Fla. Stat. On or about April 2, 2009, Ms. Jennings submitted an application for a pari-mutuel wagering license, specifically for a cardroom license that would allow her to be a dealer in the poker room of a pari-mutuel facility. Ms. Jennings indicated on the application form that she had never held a pari-mutuel license in Florida. In the section of the license application entitled "To Be Completed by Cardroom Applicants Only," Ms. Jennings answered "no" to the following question: "Have you ever been convicted of, or had adjudication of guilt withheld for, a felony or misdemeanor involving forgery, larceny, extortion or conspiracy to defraud or filing false reports to government agency, racing or gaming commission or authority, in this state or any other stated under the laws of the United States?" In the section of the application entitled "Background Information", Ms. Jennings answered "no" to the following question: "Have you ever been convicted of or had adjudication withheld for any crime, or pled guilty or nolo contendere to any criminal charges against you? If yes, give details in the space provided below." In the space provided, Ms. Jennings wrote: "Had adjudication; As part of a prosecution of someone else, I cooperated and gave testimony. However, I was personally not convicted of any wrongdoing." Upon investigation, the Division learned that Ms. Jennings had been adjudicated guilty of one count of grand theft in the third degree on January 26, 1995, in Brevard County, Florida. She was sentenced to two years' probation and required to report monthly to her probation officer. Ms. Jennings spent approximately three months in jail prior to her conviction because she could not pay for her bail. On April 22, 2009, Ms. Jennings submitted a request for a waiver from the Division so she could obtain her pari-mutuel wagering license. A waiver must be obtained by, among others, any new applicant for a Florida pari-mutuel license who has been convicted of any felony. Ms. Jennings was 27 years of age when she was convicted of grand theft. She explained that, at the time of the offense, she was involved with a boyfriend who had threatened to kill her and her family when she first became involved with him. She stated that she became "brainwashed and co-dependent on him and basically scared for my life."2 As a result, Ms. Jennings did whatever her boyfriend wanted her to do. According to Ms. Jennings, she was charged with grand theft because, at her boyfriend's direction, she obtained a cell phone under a false name. Ms. Jennings testified that she answered "no" to the question asking if she had been convicted of a crime because she was told by a federal prosecutor named Larry Turner that she would "have a clean record" if she testified against her boyfriend, who had been charged with murder.3 Ms. Jennings testified, and her boyfriend was convicted. Ms. Jennings assumed, therefore, that she would not have "anything in [her] background as a criminal record."4 Ms. Jennings gave the following testimony at the final hearing: She told the Division's investigators about the circumstances of her criminal conviction but did not tell them that she believed her criminal record had been sealed. She was shocked when the Division's investigators told her they had found records of her conviction: "I was like, Huh?"5 She had to go look up the records of the conviction and then her recollection of the arrest and conviction "came back to [her] . . . eventually."6 She was shocked when the Division's investigators told her they had found this conviction because she thought the conviction had been erased. Ms. Jennings has a high school education. After her conviction, Ms. Jennings tried to go to school, but she did not finish. For a time, she worked at a restaurant as a waitress; she had a part-time job doing promotional work for night clubs; and she also worked as a blackjack dealer at a nightclub where blackjack was played for entertainment. When asked what she had done with her life, Ms. Jennings responded: "I had boyfriends and long-term relationships and basically I was taking care of them."7 Ms. Jennings's current boyfriend, her sister, and her best friend testified that Ms. Jennings had always been honest with them. The totality of the evidence presented by Ms. Jennings is insufficient to establish she is rehabilitated and possesses good moral character: She failed to disclose her conviction for grand theft in her application for licensure; her explanations of the reasons for failing to disclose the conviction are inconsistent; her explanation of the act underlying her conviction of grand theft, procuring a cell phone under a false name, is unconvincing; and her vague description of her life since the conviction fails to demonstrate any accomplishments or any positive change in her circumstances since her conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying the application of Soon Young P. Jennings for a pari-mutuel wagering license. DONE AND ENTERED this 28th day of June, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 28th day of June, 2010.
The Issue Are the February 13, 2014, letters of Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), requiring totalisator reports to "identify the Florida [permitholder] in reports as both host and guest when applicable," statements that amount to a rule, as defined in section 120.52(16), Florida Statutes (2013).1/
Findings Of Fact Florida permits and regulates betting on greyhound racing,2/ jai alai games,3/ quarter horse racing,4/ and harness racing.5/ The Division is responsible for administration of Florida's statutes and rules governing this betting. JKC and OPKC are separate, individually permitted facilities. Jacksonville Greyhound Racing owns and operates both the JKC and the OPKC. It is not, however, a party to this proceeding. The betting system is a pari-mutuel system. This "means a system of betting on races or games in which the winners divide the total amount bet, after deducting management expenses and taxes, in proportion to the sums they have wagered individually and with regard to the odds assigned to particular outcomes."6/ Each race, contest, or game is an "event."7/ The aggregate wagers called "contributions" to pari-mutuel pools are labeled "handle." § 550.002(13), Fla. Stat. An "intertrack wager" is "a particular form of pari-mutuel wagering in which wagers are accepted at a permitted, in-state track, fronton, or pari-mutuel facility on a race or game transmitted from and performed live at, or simulcast signal rebroadcast from another in-state pari-mutuel facility."8/ The JKC offers intertrack wagering at its permitted facility located in Jacksonville, Florida. It does not offer live events. The OPKC offers intertrack wagering and wagering on live events conducted at its permitted facility in Orange Park. The Racetracks are host tracks when they transmit live greyhound racing to other in-state and out-of-state facilities for off-track wagers.9/ They are guest tracks when wagers are made at their separate permitted locations on pari-mutuel races or games conducted at third-party facilities.10/ Florida statutes and the Division's rules require detailed reports from permitholders to the Division and other permitholders, including tables of wagers, pool data, and winnings.11/ These reports are generated by "totalisators." A totalisator is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari-mutuel facility."12/ The Division's Form DBPR-PMW-3570 requires host permitholders to report intertrack wagering "handle" by guest on a monthly basis. The host permitholders must sign and attest to the accuracy of the information submitted in the form. Also, Florida Administrative Code Rule 61D-7.023(2) requires generation of reports for each pool within each contest to be printed immediately after the official order of finish is declared. On March 9, 2012, the Division issued a letter to AmTote International ("AmTote"), a licensed totalisator company, and copied Jacksonville Greyhound Racing, notifying AmTote that Florida permitholders and the Division would need a breakdown of the handle of the Racetracks in order to pay appropriate purses, taxes, or other liabilities. It sent a similar letter to other totalisator companies. This was an effort to be accommodating and flexible. The letter concluded: "Please continue to provide handle information broken down by source, which is required by rule to all those in the state of Florida who have been users of that information in the past." The Racetracks rely upon AmTote to provide their totalisator services. Between March 2012 and March 2014, AmTote commingled the Racetracks' wagering data into a single "community," reporting all wagering as coming from the OPKC in order to reduce interface fees paid for the totalisator service. The guest track wagering data and reports exchanged with the other totalisator companies from the Racetracks show up on the AmTote settlement files as OPKC. The reports do not differentiate between wagers made at each of the Racetracks. Before March 1, 2012, AmTote segregated wagering data as coming from either JKC or OPKC. During the two years reported by the Racetracks as a single community, the Racetracks separately provided Florida host tracks a supplemental report breaking down the sources within the common community. The Racetracks provided these supplemental reports--via email or other means--to assist Florida host tracks with reporting requirements. They did not provide them simultaneously with the other reports and data. There were frequently errors that had to be identified and corrected. In an effort to be flexible and work with the Racetracks, the Division tolerated this method of reporting for two years. But it created problems for both the Division and for the other permitholders in the state. On February 13, 2014, the Division prepared and issued correspondence to AmTote, as well as the two other Florida totalisator companies, announcing that it intended to require proper reporting of the data required by rule, including reports of each permitholder. The letter states: This letter is to address the issue of proper and complete identification of each individual permitholder in totalisator reports. Rule 61D-7.024(1), Florida Administrative Code, requires all Florida pari-mutuel permitholders to use an electronically operated totalisator. Rule 61D-7.023(9), F.A.C. states in part, ". . . Each report shall include the permitholder's name . . .," and Rule 61D-7.024(4), F.A.C. states in part, ". . . reports shall be kept logically separate . . . ." Further, Rule 61D-7.023(1), F.A.C. states, "The totalisator licensee shall be responsible for the correctness of all tote produced mutual accounting reports. " In accordance with Florida Administrative Code, the division requires each permitholder to be properly and uniquely identified by totalisator reports provided to the division and to the permitholders. In addition, the totalisators are responsible for the correctness of all tote produced mutual accounting reports. Reports provided after February 28, 2014 must properly identify the Florida Permitholder in reports as both host and guest when applicable. Improper identification of permitholders will be considered a violation of the Florida Administrative Code. On March 11, 2014, AmTote began segregating wagering data from the Racetracks in compliance with the February 13, 2014, letter. The Racetracks will incur additional financial costs if AmTote ends the reporting of all wagering data as coming from OPKC for purposes of reports provided to other totalisator companies licensed in Florida and begins segregating their wagering data by individual permitholders. These costs stem from additional interface fees incurred outside the regulatory jurisdiction of Florida. The only evidence of these costs is the testimony of Matthew Kroetz, vice-president of Operations for Jacksonville Greyhound Racing. The testimony of Mr. Kroetz about the cost of the required change is confusing because he mingles assumed costs for a third closed track as if it were reactivated and operational. Bayard Raceways is that track. The Racetracks' parent company owns it. But the likelihood and timing of that reactivation is speculative. In addition, Bayard is not a party to this proceeding. Neither is the parent company. Mr. Kroetz' testimony establishes that the current cost for the two petitioners is a total of $1,500 per month. He projects that costs for reporting, as the letter requires, would be $4,500 per month for the two Petitioners and the track that may reopen in the future. That testimony is unrebutted and consistent with his testimony that the recurring fees for all three tracks would total over $50,000 annually. It is accepted as accurate. But the $3,000 increase from $1,500 to $4,500 per month is not due solely to the reporting requirement. It is also due to lumping in the non-active track. The evidence does not support including that track, the opening of which is speculative. The monthly fee for the two operating tracks is $1,500 divided by two or $750. Subtracting that, as the current cost for an existing track, from the $3,000 increase, lowers the estimated increase to $2,250. Dividing that by three gives the increased monthly cost per track, or $750 per track. This results in the projected annual cost increase for each of the Racetracks of $9,000. Although Mr. Kroetz testified in summary that the changes would result in an increased cost of "about a thousand dollars per month per facility," that testimony is not persuasive. It is inconsistent with the more detailed testimony relied upon above and would require the improbable and unsupported conclusion that the monthly increase would be more than the existing fees.
