The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO 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 19th day of March 1996.
The Issue The issues are whether Petitioner was an employee of Respondent and, if so, whether Respondent is guilty of an act of employment discrimination against Petitioner, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent owns four ranches in Florida, including the Yeehaw Plantation near Yeehaw Junction, as well as a ranch in Texas and a ranch in Georgia. Respondent employs about 80 persons in its Atlanta offices and at its various ranches. The Yeehaw Plantation includes 7000 acres of hunt courses, gun dog kennels, and horse stables. To address deficiencies in its gun dog operations at the Yeehaw Plantation, Respondent retained Robin Watson to perform a kennel evaluation in early 2015. A citizen of the United Kingdom, Mr. Watson has earned an international reputation as a breeder, trainer, and handler of gun dogs, mostly British Labradors, and has trained dogs throughout the world. In the United Kingdom, Mr. Watson has served as the highest-level judge for field trials of hunting dogs, and he and his dogs have won several championships. Following the kennel evaluation, Respondent extended Mr. Watson an offer of full-time employment to train its gun dogs and provide his British Labradors for use in Respondent's hunting operations. Upon receipt of the employment offer, Mr. Watson informed Respondent that he could accept the job only if he could be joined by Petitioner, who had accompanied him on the kennel evaluation. Petitioner is a female citizen of the United Kingdom and is of British origin. Respondent agreed to this condition and, to induce Mr. Watson's acceptance, also agreed to pay the visa-application and relocation expenses of Mr. Watson and Petitioner. Respondent retained counsel to assist with Mr. Watson's visa. Based on his world-class qualifications as a gun dog trainer, Mr. Watson applied for, and obtained, an 0-1 visa, which is reserved for persons with "extraordinary ability." Petitioner did not qualify for an 0-1 visa, but obtained a B-2 visa, which is reserved for visitors and does not allow employment in the United States. Due to its involvement in securing the visas, Respondent was aware at all times of the type of Petitioner's visa and its prohibition against employment. In August 2015, Petitioner and Mr. Watson moved from the United Kingdom to Florida, where they occupied, as part of Mr. Watson's employment package, a house on the ranch. Mr. Watson's supervisor was Bud O'Connor, who is Respondent's ranch administrator. A majority of Mr. O'Connor's time is spent at Respondent's four Florida ranches, but he also visits Respondent's ranch in Texas and ranch in Georgia. While at the Yeehaw Plantation, Mr. O'Connor met with Mr. Watson an average of once weekly. At some point roughly coinciding with complaints voiced by a principal of Respondent in connection with a recent hunt, Mr. O'Connor became dissatisfied with Mr. Watson's work. Part of the dissatisfaction involved Petitioner, whom Mr. O'Connor described as "joined at the hip" with Mr. Watson. Petitioner accompanied Mr. Watson even on the hunts, where the support truck was to have been occupied only by Mr. Watson, as the dog handler, and two employees whose duties were to handle the horses. Mr. O'Connor's frustration with the situation is exemplified by his assumption that, when Mr. Watson drove the trailer off a small bridge on the ranch while talking on his cellphone, he must have been talking to Petitioner, who was not present with him at the time. Mr. O'Connor eventually directed Mr. Watson not to allow Petitioner to join them on the hunts. Mr. Watson objected on the ground that she was his secretary and worried that she would be displeased. But Mr. O'Connor was adamant and, in mid- 2016, also forbade her from attending meetings in the Yeehaw Plantation office. While living at Yeehaw Plantation, Petitioner helped Mr. Watson with the dogs, as she had done before and has done after his employment with Respondent. However, at all times, Petitioner provided her services as a volunteer. At no time did Respondent agree to employ her. Foremost among the reasons not to employ Petitioner was the illegality of such employment: Respondent's operation features the internal controls of a large corporation, so that it would be impossible for one or two persons to conceal an illegal employment decision within the corporate ranks. At no time did Respondent agree to, or in fact, compensate Petitioner directly or indirectly through Mr. Watson. The above-described relocation expenses and housing were inducements to Mr. Watson to accept Respondent's job offer. In July 2016, Respondent provided Petitioner health insurance, but as a dependent of Mr. Watson, whom she had married earlier in the month. In November 2017, Mr. Watson informed Mr. O'Connor that he was quitting, as he did the following month. The timing of Mr. Watson's departure at the start of quail hunting season presented a problem for Mr. O'Connor, who reminded Mr. Watson of the provision of his agreement with Respondent that called for repayment of the relocation expenses in the event of an early termination. Notably, Mr. Watson did not respond that he was entitled to an offset for the services that Petitioner had provided.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of March, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Robert E. Rigrish, Esquire Bodker, Ramsey, Andrews, Rollins, Winograd, & Wildstein 3490 Piedmont Road Northeast, Suite 1400 Atlanta, Georgia 30305 (eServed) Rachael J. Watson 2921 Old Farm Road Lancaster, South Carolina 29720 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2001.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs, pursuant to Section 57.111, Florida Statutes, for fees and costs he incurred as a result of his participation in the administrative proceeding the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) initiated by filing an Administrative Complaint against him in DBPR Case No. 93050359 (DOAH Case No. 93-6638)?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: From October of 1992 through October of 1993, the Broward County Metropolitan Organized Crime Intelligence Unit (MOCIU) conducted an undercover investigation at the Pompano Park Harness Track (Pompano). The investigation began as a result of information received by the police concerning alleged race-fixing activities at the track. James Gabriel, a City of Fort Lauderdale police officer, and William Piroth, a City of Pompano Beach police officer, were among the law enforcement personnel who participated in the investigation. During the course of the investigation, Gabriel assumed the role of a horse owner interested in fixing races at the track. Piroth served as Gabriel's backup. In furtherance of the undercover operation, Gabriel purchased a race horse (trotter) by the name of Yankee Roughneck and retained the services of William Palmer (one of the targets of the investigation) to train and drive the horse. At all times material to the instant case, Witmer was a veterinarian who treated race horses and who held an occupational license issued by the Department. On November 11, 1992, Gabriel met with Witmer at Pompano. Others may have been present, including Palmer, Gracie Lane (an associate of Palmer) and Herman Berger (a horse owner and another target of the investigation). During their meeting, Gabriel explained to Witmer that Yankee Roughneck was experiencing respiratory problems. He then asked Witmer, "How do we get this stuff out of the horse, or how do we get the horse to cough this stuff out?" Witmer suggested treatment with clenbuterol. He gave Gabriel the name of a person from whom Gabriel could purchase the drug, Robert Harris, a blacksmith working at the South Florida Trotting Center, Inc., in Lake Worth, Florida, and provided Gabriel with directions to Harris' place of employment. On November 19, 1992, Piroth and Detective John Mauro went to the South Florida Trotting Center, Inc., where Mauro purchased two bottles of clenbuterol from Harris. Clenbuterol is a bronchodilator with mucolytic properties. It helps both sick and healthy animals to breathe better. Notwithstanding its therapeutic uses (including the treatment of horses with upper respiratory problems), it is not approved for use in the United States. (It is approved for use, however, in Canada and Europe.) If clenbuterol is administered in a therapeutic concentration to a race horse 24 hours before a race, by the time of the race it will no longer have any effect on the horse. On April 2, 1993, Gabriel was at Pompano, outside one of the stable areas, when he approached Witmer, who was in his car about to drive off, and engaged in the following conversation:04 GABRIEL: Doc, you got two seconds? I just have to ask you something. Remember that horse Yankee Roughneck you were treating over there by Palmer's stable? Do you remember that horse? He had a breathing problem? WITMER: Yeah, yeah that's a long time ago. 04 The conversation was recorded on tape and the tape was played at the evidentiary hearing in this case. GABRIEL: Yeah we had talked about, you know, the . . . clenbuterol? WITMER: Oh, yes, I knew I remembered him. There was a blacksmith up there. Did you ever find him? GABRIEL: No. When I do find some, how do I give it to the horse? I don't want to ask these guys to do it. You know what I mean? How do you administer the - - - WITMER: You get a - - - GABRIEL: There is a spray and there is a powder, right? WITMER: There is an injectable, injectable. If you can get the injectable, because of the nature of the damn stuff, nobody wants to get caught with it. GABRIEL: Right, right. WITMER: If you get a bottle, what I'll do, you bring it to me, if you want me to, I'll download it into the syringe and I'll keep the syringe, you take the bottle back. GABRIEL: Okay. WITMER: And I can administer this to your horse. GABRIEL: Okay. Now we don't need to do it until he is sick though, right? WITMER: Oh, no, no. You don't do anything until he needs it. GABRIEL: Right no. Because this horse had pneumonia when it was born and - - - Berger was approximately 15 to 25 feet from where Gabriel and Witmer were conversing. Following his conversation with Witmer, Gabriel told Berger what had been said during the conversation. The information obtained as a result of the MOCIU's investigation at Pompano was provided to the Department. On October 19, 1993, the Department issued an Administrative Complaint and Emergency Order of Suspension against Witmer.05 The Administrative Complaint alleged the following: On or about September 30, 1991, JOHN R. WITMER, (WITMER) applied for and received a pari-mutuel wagering occupational license, number 1130043-1046, as a Veterinarian, and at all times material to the allegations in this complaint, held said license. On November 11, 1992, WITMER met with one Herman Berger, a horse owner, and an undercover police officer (hereinafter "the undercover officer"), and discussed the purchase and use of the drug Clenbutoral. WITMER then provided Berger and the undercover officer with a source for the purchase of the drug. Clenbutoral is a bronchodilator used to improve the performance of race horses, is not approved for use in the United States, and is an illegal substance as provided for in Section 499.03, Florida Statutes. On April 2, 1993, WITMER met with Berger and the undercover officer and discussed how Clenbutoral can be used. WITMER told them 05 The Administrative Complaint and Emergency Order of Suspension were contained in one document. that upon purchasing the drug, he (WITMER) would down-load it into a syringe, keep it in his truck and administer it to the horse. WITMER further cautioned Berger and the undercover officer to be careful with the Clenbutoral since it was an illegal substance. COUNT ONE The Petitioner hereby realleges numbered paragraphs 1 through 4 and incorporates the same in this Count One. On November 11, 1992, WITMER met with Herman Berger, a horse owner, and discussed the purchase and use of the drug Clenbutoral. Witmer then provided Berger and the undercover officer with a source for the purchase of the drug. By conspiring or conniving with said persons in a corrupt or fraudulent practice in relation to racing, or by committing such an act on his own account, WITMER violated Florida Administrative Code Rule 7ER92-2(18), currently Florida Administrative Code Rule 61D-1.002(18). COUNT TWO The Petitioner hereby realleges numbered paragraphs 1 through 4 and incorporates the same in this Count Two. On April 2, 1993, WITMER met with Berger and the undercover officer, and discussed how Clebutoral can be used. WITMER told them that upon purchasing the drug, he (WITMER) would down-load it into a syringe, keep it in his truck and administer it to the horse. WITMER further cautioned Berger and the undercover officer to be careful with the Clenbutoral since it was an illegal substance. By conspiring or conniving with said persons in a corrupt or fraudulent practice in relation to racing, or by committing such an act on his own account, WITMER violated Florida Administrative Code Rule 7ER92-2(18), currently Florida Administrative Code Rule 61D-1.002(18). COUNT THREE The Petitioner hereby realleges numbered paragraphs 1 through 4 and incorporates the same in this Count Three. On April 2, 1993, Witmer met with Berger and the undercover officer, and discussed how Clenbutoral can be used. WITMER told them that upon purchasing the drug, he (WITMER) would down-load it into a syringe, keep it in his truck and administer it to the horse. WITMER further cautioned Berger and the undercover officer to be careful with the Clenbutoral since it was an illegal substance. By conspiring to affect the outcome of a horserace through the administration of medication or drugs, WITMER violated Section 550.235(2), Florida Statutes. Witmer requested an administrative hearing on the Administrative Complaint. The matter was referred to the Division of Administrative Hearings and docketed as DOAH Case No. 93-6638. Witmer appealed the Emergency Order of Suspension to the Fourth District Court of Appeal. On February 2, 1994, the Fourth District rendered a decision quashing the Emergency Order of Suspension. In its opinion, the Fourth District stated, among other things, the following: Petitioner points to two defects in the conspiracy allegations. First, he argues that the complaint/order fails to specifically allege that he ever offered to administer Clenbutoral to a race horse for the purpose of affecting the outcome of a race. The Department charges that the offer to administer the drug violated section 550.235(2), Florida Statutes, and Florida Administrative Code Rule 61D-1.002(18). Both require that the allegedly prohibited behavior involve racing or a race animal. Section 550.235(2) requires that the conspiracy be directed toward affecting the outcome of a race and that the attempted administration of medication be to a race animal: "Any person who attempts to affect the outcome of a horserace or dograce through administration of medication or drugs to a race animal as prohibited by law; who administers any medication or drugs prohibited by law to a race animal for the purpose of affecting the outcome of a horserace or dograce; or who conspires to administer or to attempt to administer such medication or drugs is guilty of a felony of the third degree. " (Emphasis supplied.) Administrative rule 61D-1.002(18) provides that the alleged fraudulent acts be committed in relation to racing: "No person shall conspire with any other person for the commission of, or connive with any other person in any corrupt or fraudulent practice in relation to racing or jai alai nor shall he commit such an act on his own account." (Emphasis supplied.) The complaint/order alleges only that the petitioner conspired with "Herman Berger, a horse owner" to obtain and administer Clenbutoral to "the horse." Nowhere is Mr. Berger identified as a "race horse owner" or alleged to be involved in any way with horse racing. And nowhere is the horse in question identified in any manner or alleged to be a "race horse." The failure to allege an essential element of a violation renders the complaint and emergency order facially insufficient. . . . Although the petitioner has not raised this as a defect, there is an additional problem with the Department's allegation that Clenbutoral is an unlawful substance. The order states that Clenbutoral is not approved in the United States and that it is an illegal substance under 1992 Fla.Law ch. 69 (reenacted as section 499.03, Florida Statutes (1993)). However, this section does not make any substance illegal; it simply prohibits unauthorized persons from possessing or delivering certain categories of drugs (including new drugs which are not in general use and experimental drugs) without a valid prescription. The section specifically exempts licensed practitioners and permit holders from its provisions. Ch. 92-69, Laws of Fla. (reenacted as section 499.003, Florida Statutes (1993)). Nowhere in the complaint/order has the Department alleged that the petitioner lacks the necessary license and/or permit that would allow him to lawfully dispense or administer Clenbutoral. The petitioner also argues that the complaint/order fails to allege any agreement between the petitioner and Mr. Berger to commit the violation. The Department argues that it has alleged that the petitioner "offered" to administer an illegal drug and that this allegation is sufficient to put petitioner on notice that he is charged with conspiracy. Agreement is a necessary element of the crime of conspiracy, which is defined as an express or implied agreement of two or more persons to engage in a criminal or unlawful act. . . Because the Department has not alleged agreement, at most the complaint/order charges solicitation, which is defined as the enticement or encouragement of another to commit a crime even if the other has no intention to follow through. . . But neither section 550.235 nor rule 61D-1.002(18) prohibits the act of soliciting a crime or violation, only the commission of the substantive offense and/or conspiracy to commit the offense. . . . Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 631 So.2d 338, 341-42 (Fla. 4th DCA 1994). In a subsequent decision (rendered on October 25, 1995), in an appeal taken by Witmer of a final order of the Division of Administrative Hearings denying his challenge to certain Department rules, including Rule 61D-1.002(18), Florida Administrative Code, the Fourth District Court of Appeal held that Rule 61D-1.002(18), "because of its vagueness, . . . [wa]s an invalid exercise of delegated legislative authority." Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 662 So.2d 1299, 1302 (Fla. 4th DCA 1995). On May 31, 1996, the Department issued an Amended Administrative Complaint against Witmer, which it filed in DOAH Case No. 93-6638 after receiving leave to do so. In its motion requesting leave to file said Amended Administrative Complaint, the Department asserted the following: The original Administrative Complaint filed in this cause alleged three (3) counts. Two of those counts were effectively dismissed by the Fourth District Court of Appeal decision in the case of Witmer v. Department of Business and Professional Regulation, 662 So.2d 1299 (Fla. 4th DCA 1995), also referred to as Witmer II. The third [and only remaining viable count], conspiring to affect the outcome of a horserace through the administration of medication or drugs, was roundly criticized by the appeals court because of its failure to include an allegation of an "agreement." Witmer v. Department of Business and Professional Regulation, 631 So.2d 338 (Fla. 4th DCA 1994), also referred to as Witmer I. The [Department] believes that it has remedied the defects in the original conspiracy count by substituting an Amended Administrative Complaint (incorporating the conspiracy count only) for the original complaint filed in this cause. . . . The Department's Amended Administrative Complaint contained the following allegations: On November 11, 1992, Witmer met with Herman Berger, a horse owner, William Palmer, an owner and driver, Gracie Lane, Palmer's groom, and undercover officer James Gabriel at Pompano Park Harness Track in Broward County, Florida, and did at that time discuss, in relation to racing, the use of "Clenbuterol" on the racehorse "Yankee Roughneck." "Clenbuterol" is a bronchodilator used to improve performance of racehorses and is an illegal drug not approved for use in the United States. On November 11, 1992, in the same discussion, Witmer provided a "source" for the drug, (Harris), a blacksmith at the Trotting Center, who sells the drug and gave directions to the Trotting Center. Further, Witmer provided the name of Dave Hackwell, and said to mention him (Hackwell) as the person who said they could get some "stuff" from Harris. On April 2, 1993, Witmer met with James Gabriel in the presence of Herman Berger at Pompano Park Harness Track at which time he was reminded of the earlier discussion concerning the use of "Clenbuterol" on the racehorse "Yankee Roughneck." Witmer agreed that if "Clenbuterol" was brought to him, he would download it into a syringe, keep the syringe and administer "it" to the racehorse. Section 550.235(2), Florida Statutes, states: "Any person who attempts to [a]ffect the outcome of a horserace or dograce through the administration of medication or drugs; or who conspires to administer or attempt to administer such medication or drugs is guilty of a felony of the third degree.["] Count I The Petitioner hereby realleges numbered paragraphs 1 through 6. Beginning on November 11, 1992 and continuing through April 2, 1993, Witmer did conspire and agree with Herman Berger and/or William Palmer to provide a source for the purchase of "Clenbuterol," an illegal drug, and in furtherance of the conspiracy did agree to download the drug into a syringe and administer it to a horse participating in a race meeting at Pompano Park Harness Track for the purpose of affecting the outcome of a horserace. By conspiring to bring the drug, "Clenbuterol" onto the grounds of Pompano Park Harness Track, to administer it to a horse participating in a race meeting for the purpose of affecting the outcome of a horserace, Witmer violated Section 550.235(2), Florida Statutes. On July 31, 1996, the Department filed a Notice of Voluntary Dismissal in DOAH Case No. 93-6638. On that same day, the undersigned issued an Order Relinquishing Jurisdiction and Closing File in that case.
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license; and (2) whether Petitioner is entitled to waiver of his felony conviction in accordance with Chapter 550, Florida Statutes (2006).
Findings Of Fact Petitioner submitted an application for a pari-mutuel wagering occupational license as a racehorse owner on or about March 30, 2005. On his application, Petitioner accurately reported that he had been convicted on one count of Conspiracy to Transport Stolen Property and Evade Taxes, a felony. Due to Petitioner’s felony conviction, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver failed to include any information which would establish his rehabilitation or demonstrate that he is of good moral character. In the regular course of the Division's review of Petitioner's application and request for waiver, on or about April 11, 2005, Petitioner was interviewed by Dennis Badillo, an investigator for the Division. During the interview, Mr. Badillo completed a waiver interview form based upon the answers provided by Petitioner. Petitioner was afforded a full and fair opportunity to present information to establish his rehabilitation and to demonstrate his present good moral character, but Petitioner did not provide such information. In light of the information regarding Petitioner’s felony conviction, which is undisputed and admitted by Petitioner on his application form and at the final hearing, Petitioner does not meet the eligibility requirements for the license he seeks. At hearing, Petitioner attempted to minimize his role in the crime of which he was convicted, and expressed the view that he "doesn't have much time" to fulfill his desire to "participate in the racing industry" in Florida, inasmuch as he has passed his 70th birthday. Petitioner failed to present any testimony from friends, relatives, associates, employers, probation officers, or other individuals to establish good conduct and reputation subsequent to the date of his felony conviction. Absent such evidence, the Division has no basis upon which to conclude that Petitioner is rehabilitated or that Petitioner is of present good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner’s application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 31st day of January 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of January, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph L. Nacca 268 West Walk West Haven, Connecticut 06516 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent is and has been at all times material hereto a licensed veterinarian in the State of Florida, having been issued license number VM 0001124. Respondent was a licensed veterinarian in the State of New York, having been issued license number 772918-0 or 002193. On March 27, 1978, Respondent pled not guilty to an eleven-count indictment filed against him in the County Court for Nassau County, New York. He was found guilty and convicted after a jury trial of two counts of Fraudulent Entries and Practices in Contests of Speed involving a race horse running under an assumed name. On November 3, 1978, he was fined $1,000.00 and sentenced to one year's imprisonment at the Nassau County Correctional Center. The New York State Education Department, Office of Professional Discipline, State Board for Veterinary Medicine, is the agency of that state charged with regulating the practice of veterinary medicine in the State of New York. That agency initiated disciplinary proceedings against Respondent charging him with having violated Education Law Section 6509(5)(a), which prohibits being convicted of committing an act constituting a crime under New York State law. Although a hearing on that charge was available to Respondent, Respondent voluntarily chose to waive his right to a hearing and surrender his license. On May 5, 1982, Respondent signed his sworn Application to Surrender License. In that sworn application, Respondent stated that he admitted guilt to the charges against him, that he understood the Board of Regents (of the State Education Department) had discretion whether or not to accept Respondent's application to surrender his license on the terms and conditions proposed by Respondent and that such applications were not automatically granted, and that he would agree to an order accepting his application for surrender with the provision that he not apply for restoration of his license for at least one year. On June 25, 1982, the Board of Regents voted to grant Respondent's application for permission to surrender his license on the terms proposed by him. Pursuant to that vote, on June 28, 1982, the Commissioner of Education of the State of New York entered an Order granting Respondent's application to surrender his license, cancelling Respondent's registration to practice, and prohibiting Respondent from applying for restoration of his license for at least one year. On October 15, 1982, the Probable Cause Panel of the Florida Board of Veterinary Medicine determined probable cause, and an Administrative Complaint was filed against Respondent. On October 5, 1983, the Hearing Officer of the Division of Administrative Hearings assigned to conduct the formal proceedings against Respondent in that case dismissed the Amended Administrative Complaint in that case due to alleged defects in the probable cause determination. On December 2, 1983, the Probable Cause Panel determined probable cause a second time, an Administrative Complaint was filed, and this proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him, imposing an administrative fine in the amount of one thousand dollars against him to be paid to the Executive Director of the Board of Veterinary Medicine within thirty days of entry of the Final Order, and placing Respondent on probation for a period of two years. DONE and ORDERED this 4th day of January, 1985, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of January, 1985. COPIES FURNISHED: James Gi1lis and William Furlow, Esquires Department of Professional Regulation 130 N. Monroe Street Tallahassee, Fl. 32301 Paul Lambert, Esquire 1114 E. Park Avenue Tallahassee, Fl. 32301 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe St. Tallahassee, Fl. 32301 Jane Raker Executive Director Board of Veterinary Medicine 130 N. Monroe St. Tallahassee, Fl. 32301
