Findings Of Fact The Department is the state agency charged with the responsibility of regulating licensees in the pari-mutuel industry. Respondent, Albert P. Polito, holds a pari-mutuel wagering occupational license, license number 12037440-1081, and at all times material to this case was operating as a trainer at Pompano Park, a pari-mutuel wagering race grounds. In 1993, Respondent was employed by the Erenstoft family to train and race a standardbred horse named "Handy A." "Handy A" was purchased by Mrs. Erenstoft in 1992. Mrs. Erenstoft paid $4,500 for the horse. As is customary in the industry, "Handy A" was delivered to Respondent's care and custody. As the trainer Respondent was responsible for the stable fees, food, training, and care of the horse. In return, the owner paid Respondent a monthly trainer's fee. When "Handy A" sustained an injury in July, 1994, he was unable to continue racing. Respondent wanted to turn the horse out. Turning a horse out allows them recuperative time to determine whether the injury will heal sufficient to allow the horse to return to racing. In this case, the Erenstofts agreed that Respondent could turn out "Handy A." Respondent advised the Erenstofts that "Handy A" was turned out to a farm somewhere in central Florida. The Erenstofts paid all monies which were owed to Respondent for the care and training of "Handy A." The Erenstofts have not sold nor agreed to sell "Handy A." The Erenstofts have not seen "Handy A" since July, 1994. When Respondent did not return "Handy A" to Pompano Park after demands for same were made, the Erenstofts began inquiries to attempt to locate the horse. Since no attempt to register a new owner has occurred it is presumed the new owner does not race "Handy A" within the regulated pari-mutuel industry. One market available for such a horse is with the Amish. Typically buyers representing the Amish visit Pompano Park to acquire standardbred horses trained to pull carts. In this case, Respondent told Vic Papeo he had "Amished" the subject horse. If, in fact, "Handy A" was sold to the Amish it will be extremely difficult, if not impossible, to recover the horse. Respondent has not paid the Erenstofts for the sale of "Handy A." CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 550.105(6), Florida Statutes, provides, in pertinent part: The division may deny, revoke or suspend any occupational license if the applicant therefor or holder thereof accumulates unpaid obligations or defaults in obligations... Furthermore, Rule 61D-1.006(3)(a) states: The division may deny a license to or revoke, suspend or place conditions upon or restrictions on a license of any person, or rule off or declare ineligible any person who: 2. Has unpaid fines or financial obligations; In this case, there has been clear and convincing evidence presented that Respondent incurred a financial obligation to the Erenstofts and failed to return the horse, "Handy A." It is presumed Respondent disposed of the horse, by sale or otherwise, without the owner's permission. Respondent has failed to meet financial obligations and is, therefore, ineligible for licensure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Division of Pari-Mutuel Wagering enter a final order revoking the pari-mutuel wagering occupational license of Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. Darby, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Albert Polito 5440 Northwest 55th Boulevard Apartment 11-207 Coconut Creek, Florida 33073
The Issue Whether 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 Whether Respondent Robin Audifredd d/b/a St. Francis Place a/k/a Family Ties (Respondent) operated an assisted living facility without a required license and, if so, what is the appropriate penalty.
Findings Of Fact Respondent is the sole owner of St. Francis Place. She has never done business as "Family Ties, ACLF, Inc." At all pertinent times, Respondent held a license from the Florida Department of Business and Professional Regulation to operate St. Francis Place as a boarding home. Respondent's license to operate St. Francis Place as a boarding house allows up to 16 residents. Respondent provides non-transient housing for her residents. During pertinent times, there were approximately 13 residents housed at St. Francis Place. Some residents of St. Francis Place have conditions such as alcoholism, dementia, schizophrenia, manic depression, memory loss, and head trauma. Most of the residents of St. Francis Place were placed by other agencies, such as the United States Veterans Administration (VA). In addition to housing residents for pay, at the time of the hearing, Respondent was providing housing to three former homeless residents free of charge. According to the Complaint, Respondent was operating St. Francis Place in a manner that required a license from the Agency as an ALF because she was providing "personal services"2/ to one or more residents who were not related to Respondent. A license from the Agency is not required for facilities that provide "personal services" to no more than two non-relative residents who do not receive optional state supplementation, if the owner or renter of the facility resides at the facility. See Conclusions of Law 65, infra. According to Respondent, she did not need to be licensed as an ALF because she resided at St. Francis Place and only provided "personal services" to one non-relative resident, who was not receiving optional state supplementation. There is no evidence that any resident of St. Francis Place was receiving optional state supplementation during the pertinent time period. Respondent owns the building located at 1030 Jo Jo Road, Pensacola, Florida, from which she operates St. Francis Place. Respondent also owns a home at 425 Belle Chase Way, Pensacola, Florida. According to Respondent, she "resides" at both 1030 Jo Jo Road and at 425 Belle Chase Way, in Pensacola, Florida. Respondent testified that she actually spends more time at 1030 Jo Jo Road, where St. Francis Place is located. Petitioner's employees provided testimonial evidence to the effect that Respondent spends a great deal of time at St. Francis Place. Their testimony supports a finding that Respondent spends three or four nights a week at St. Francis Place. Despite the evidence showing that Respondent spends a lot of her time at St. Francis Place, it is found that Respondent's residence is 425 Belle Chase Way, Pensacola, Florida, rather than 1030 Jo Jo Road, based upon the following findings which are supported by clear and convincing evidence: Respondent claims homestead exemption at 425 Belle Chase Way. Respondent receives her phone bill at 425 Belle Chase Way address. In 2009, Respondent's address was listed as 425 Belle Chase Way on the title listing Respondent as a co-owner of her mother's motor vehicle. Respondent had no regular room at St. Francis Place. Rather, she either slept on a couch near the main entrance or on a couch in a back room. Although Respondent would also occasionally sleep in a room set aside for residents when there was a vacancy, Respondent had no regular room at St. Francis Place to sleep or keep her clothes. In February of 2009, Respondent's attorney in Respondent's divorce proceedings listed Respondent's address as 425 Belle Chase Way. Prior to February 2010, the Florida Department of Motor Vehicles and Public Safety (DMV) listed Respondent's address as 425 Belle Chase Way. On February 13, 2010, the DMV issued Respondent a duplicate driver's license indicating that her address was 425 Belle Chase Way. By the time of the final hearing, the address listed on Respondent's Florida driver's license had been changed to 1030 Jo Jo Road. The change of address from 425 Belle Chase Way to 1030 Jo Jo Road was made on April 8, 2010, just five days prior to the final hearing. Despite the recent change, Respondent testified that she did not know what address was listed on her driver's license. That testimony was not credible. Neither was Respondent's testimony that she "resided" at St. Francis Place. The phone number and address for St. Francis Place is listed in the Pensacola area 2009 AT&T Real Yellow Pages (Yellow Pages) under the heading "Assisted Living." At the final hearing, Respondent explained that she never authorized the listing and has contacted Yellow Pages and asked them to remove the listing. Respondent's testimony in that regard is undisputed, and it is found that Respondent did not authorize St. Francis Place to be listed in the Yellow Pages under the heading "Assisted Living." On March 25, 2009, a site visit of St. Francis Place was conducted by the Medicaid Fraud Unit of the Florida Attorney General's Office. The next day, on March 26, 2009, the Agency for Health Care Administration conducted a survey of St. Francis Place. The undisputed testimony clearly showed that, when the site visit and survey were conducted, there was one resident, identified as "G. T.," who was totally contracted and required assistance with daily living such as bathing, dressing, feeding, and taking medications. Respondent admits, and it is found, that Respondent and her employees provided "personal services" to G. T. within the meaning of applicable ALF licensing laws. G. T. is a resident who has had multiple sclerosis for many years. Respondent has known G. T. for over 16 years. G. T. had been a resident of St. Francis Place since it first opened its doors approximately six years prior to the date of the final hearing. The Agency was aware that G. T. was a resident of St. Francis Place and was receiving personal services prior to the March 2009, site visit and survey. There is no indication, however, that the Agency took any action prior to March 2009, to alert Respondent that she was considered to be operating an ALF without a license. Katherine Cone and Norma Endress were members of the teams who conducted the site visit and survey of Respondent's St. Francis Place facility on March 25 and March 26, 2009, respectively. During her visit on March 25, 2009, Ms. Cone believed that resident G. T. was not receiving proper care and arranged for her transport to a local hospital. G. T. was treated and released back to St. Francis Place. According to Ms. Endress, who saw G. T. the very next day, she observed no demonstrated harm to any resident at St. Francis Place. The evidence is insufficient to conclude that G. T. was harmed while a residing at St. Francis Place.3/ After the site visit and survey, both Ms. Cone and Ms. Endress believed that, in addition to the personal services provided to G. T., there was evidence that staff at St. Francis Place was providing personal services in the form of assistance in administering medications or filling pill organizers for other residents. The evidence presented at the final hearing, however, was insufficient to show, clearly and convincingly, that personal services were rendered to other residents. The insufficient evidence included: Photographs and the surveyors' recollections of pill reminder or pill organizer boxes that looked as though they were full of medications; Photographs and the surveyors' recollections of medication containers stored in a centrally located medication cart with wheels; Photographs and Ms. Cone's recollection of documents in folders above the medication cart containing information related to transportation and outside services for residents such as pharmacies and transportation companies. Ms. Cone's testimony that one of Respondent's employees, Kathleen Wentworth, told her at the time of the site visit that she maintained pill organizers with medications for several residents, and that Ms. Wentworth had signed a statement to the effect that staff at St. Francis Place administered medications to residents. Ms. Endress' testimony that one of the residents told her that staff at St. Francis Place had filled his pill reminder box. The evidence was insufficient because it was not further supported. Respondent and her testifying employees explained, and other evidence indicated, that the medication cart remained unlocked and was accessible so that residents could retrieve their own medications. There was no testimony from a St. Francis Place resident, employee or Respondent, or anyone else with actual knowledge, indicating that either Respondent or her employees ever assisted any resident other than G. T., with their medications. As far as Ms. Cone's hearsay recollection of what Ms. Wentworth told her, Ms. Wentworth testified at the hearing that the conversation did not occur. In addition, while Ms. Cone remembered a written statement signed by Ms. Wentworth, no such document was entered into evidence. Finally, photographs and Ms. Cone's recollection of folders with documents about services available from other vendors, such as pharmacies or transportation providers, did not show that Respondent was providing personal services to her residents. According to Ms. Endress, prior to leaving St. Francis Place after the site visit on March 26, 2009, she informed Respondent that Respondent was operating without the requisite ALF license, and that Respondent would be hearing from the Agency within 10 days. In contrast, Respondent testified that one of the Agency's employees, Ms. Klug, told her that she could "care for two people without an ALF license," and that Ms. Endress had given her similar assurances. Consistent with Ms. Endress's recollection, the Agency sent a letter to Respondent dated March 27, 2009, which informed Respondent that the Agency "considers you to be operating as an Assisted Living Facility (ALF) without being licensed." Considering that letter, together with the recollection of Ms. Endress, and the comparative credibility of the witnesses testifying on this point, it is found that, while one or more Agency employees informed Respondent that there was an exception to the AFL license requirements, Ms. Endress informed Respondent on March 26, 2009, that Respondent needed an ALF license, and that Respondent would be hearing from the Agency within ten days. The Agency's letter mailed to Respondent on March 27, 2009, stated in its entirety: Dear Ms. Audiffred, You are hereby notified that the Agency for Health Care Administration considers you to be operating as an Assisted Living Facility (ALF) without being licensed. Based on Section 429.14(1)(m), Florida Statutes (Fla. Stat.), it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license under Chapter 429, Part I, F.S. Section 429.02(6), Fla. Stat., defines an ALF as "any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator." The statute provides an exemption from licensure for not more than 2 adults who do not receive optional state supplementation (OSS) when the person who provides the housing, meals and personal services owns or rents the home and resides therein. This exception can be found in Section 420.04(2)(d), Fla. Stat. Based on evidence of unlicensed activity, the Agency intends to proceed with all available legal action, including bringing injunctive proceedings against you in a court of competent jurisdiction, to insure that you immediately cease and desist from offering these services. Further, Section 429.19(7), Fla. Stat., provides that "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day". [sic] If you believe you are not operating as an ALF in violation of law as described, you may submit in writing any information which would demonstrate that to the Agency within 24 hours of receipt of this notice. Any information you wish to have considered by the Agency must be actually received within 24 hours of your receipt of this Notice of Violation. If you have any questions, you may reach me at 850-922-8822. The letter was signed by Barbara Alford, R.N., B.S.N., Field Office Manager, and was copied to Alberta Granger, Assisted Living Unit Manager, and to the Regional Attorney. The fines set forth in the Complaint are premised upon penalties accruing at the rate of $1,000 per day from the day after the Agency's March 27, 2009, letter to Respondent, through July 21, 2009, when the Agency found that G. T. was still residing at Respondent's facility. According to paragraph 13 of the Complaint, "pursuant to § 408.812, Fla. Stat. (2009), the Agency notified the Respondent by certified mail that the facility was in violation of Florida Law on March 27, 2009." The Agency's March 27, 2009, letter, however, does not refer to section 408.812, contains a number of wrong citations to the law, and is equivocal on the issue of whether the Agency was actually requiring Respondent to cease and desist. The law in effect in March 2009 when the letter was written was the 2008 version of Florida Statutes, not the 2009 version referenced in the Complaint.4/ The first paragraph of the March 27, 2009, letter refers to section 429.14(1)(m), Florida Statutes, for the proposition that "it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license. " There is, however, no section 429.14(1)(m) in either the 2008 or 2009 version of section 429.14. The next statutory reference in the letter is in the second paragraph which refers to section 429.02(6) for the definition of ALF. Both the 2008 and 2009 versions of section 429.02(6), however, define "chemical restraint," not ALF. Although, further down in the second paragraph, the letter correctly refers to section 429.04(2)(d), for the exception where no license is required; the third paragraph of the letter erroneously refers to section 429.19(7) for the quote "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day." That language does not appear in either the 2008 or 2009 version of section 429.19, and has not appeared in chapter 429 since 2006. In fact, instead of providing for a $1,000 per day fine, section 429.19(7), Florida Statutes (2008), in effect on the date of the letter, provides: In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3)(c) to verify the correction of the violations. A provision for the imposition of a $1,000 per day fine from the date of notice does not appear in either the 2008 or 2009 versions of chapter 429. Rather, the authority to impose a $1,000 per day fine for operating an ALF without a license which was in effect in March 2009, when the letter was written is found in section 408.812(4), Florida Statutes (2008), which provides that "[a]ny person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance." Although the Complaint, served approximately 9 months after the letter, refers to section 408.812, the letter does not even mention chapter 408. In addition, the actual language of section 408.812(4) differs from the quote in the letter from an old version of section 429.19(7) that was no longer in effect. Aside from being inaccurate on the law, the letter does not explain why the Agency "considers" Respondent to be operating an ALF without a license, or what aspects of Respondent's operations required her to need a license beyond her license to operate a boarding house. Even though the letter fails to describe which aspects of Respondent's operations violate the law, and does not set forth the referenced "evidence of unlicensed activity," the letter advises Respondent that she may submit information to the Agency within 24 hours to demonstrate that she is "not operating an ALF in violation of law as described." Additionally, although suggesting that the Agency intends to proceed with legal action to insure that Respondent "cease[s] and desist[s] from offering these services," the letter does not identify which services or tell Respondent to stop operations. In addition to giving Respondent time to provide the Agency with information that she is not in violation of the law, the letter advises Respondent of the exception to the requirement of a license for not more than 2 adults "when the person who provides the housing, meals and personal services owns or rents the home and resides therein." While it has been found that Respondent did not actually reside at St. Francis Place, it is further found that Respondent believed that she could care for two patients without an ALF license as mentioned in the letter. Respondent received the Agency's March 27, 2009, letter on or about April 1, 2009. Within 24 hours after receiving the letter, Respondent sent the Agency an undated written response addressed "To Whom it May Concern." Respondent's written response mentioned that she had discussed with Ms. Endress, the one resident that they "give care to" and that Ms. Endress had advised, "Well legally you can take care of two people without a license." Respondent's written response further reported that a representative from the VA had suggested to several of Respondent's residents that they should move out. Respondent's written response also advised that a number of visits and surveys of St. Francis Place had been conducted in March 2009, by various agencies, including the VA, the Medicaid Fraud Unit from the Florida Attorney General's Office, the Florida Department of Children and Families, and the Agency. The last paragraph of Respondent's written response states: St. Francis Place is a liscenced [sic] non-transient rooming house and the arrangements provided by our business is stated below. The renters residing at St. Francis Place are responsible for their own medications, laundry, and living quarters. As a non-transient rooming house and being in operation for the past six years, we have always encouraged our renters to maintain their own independence. Six of the thirteen renters have their own Florida drivers liscence [sic]. Several of the renters attend school or maintain employment. Several renters perform odd jobs for pay at St. Francis Place, such as yard work, sweeping porches, or taking out trash etc. Monthly Rent includes: three meals a day accessible laundry room transportation upon request utilities garbage service use of telephone cable. On July 21, 2009, surveyors from the Agency once again visited St. Francis Place and observed that G. T. was still residing there and receiving personal services. Sometime after July 21, 2009, the Florida Department of Children and Families moved G. T. from St. Francis Place to a facility known as the "Villas" in an Alzheimer's lock-down unit. The Agency never sought an injunction to force Respondent to cease operating St. Francis Place. There is no evidence that the Agency suggested to Respondent corrective measures or actions that she could take to comply with the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order finding that Respondent Robin Audifredd d/b/a St. Francis Place5/ operated an assisted living facility without a license in violation of section 408.812, but imposing no administrative fine or penalty. DONE AND ENTERED this 6th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 6th day of May, 2011.
The Issue An Administrative Complaint dated October 21, 1998, alleges that Respondent committed violations of Chapter 475, Florida Statutes, by dishonest dealing, culpable negligence, or breach of trust; by failing to account for delivering certain funds; and by violating a lawful order of the Real Estate Commission. The issues in dispute are whether those violations occurred and if so, what penalty is appropriate.
Recommendation Based on the foregoing it is, hereby RECOMMENDED: that the Agency enter its Final Order finding Respondent did not commit the alleged violations and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 April, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Howard Hadley, Esquire 2352 Carolton Road Maitland, Florida 32751-3625 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Frank D. Inserra, violated Section 550.105(7), Florida Statutes (2007), as alleged in Count I of an Amended Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 15, 2007, and, if so, what disciplinary action should be taken against his Florida pari-mutuel wagering occupational license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Chapter 550, Florida Statutes. Respondent, Frank D. Inserra, is, and was at the times material to this matter, the holder of a pari-mutuel occupational license, number 115731-1021, issued by the Division. On or about June 14, 2005, a Complaint was filed by Kenneth Posco against Mr. Inserra in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida (hereinafter referred to as the “Posco Complaint”). In relevant part, the Posco Complaint alleged the following: This is an action for damages in excess of $15,000.00, exclusive of interest and costs. At all times material hereto, Posco was and is an individual residing in Fitchburg, Massachusetts. At all times material hereto, Inserra was and is an individual residing in Broward County and is otherwise sui juris. . . . . On or about November 11, 2004, after a negotiated agreement for the purchase of certain thoroughbred racehorses was not honored by Inserra, Posco and Inserra entered into and [sic] agreement for the repayment of the funds previously forwarded by Posco to Inserra for such purchase (the ”Contract”). . . . Pursuant to the Contract, Inserra was to make certain periodic payments, in order to make full payment of the agreed upon sum of $40,186.00. Inserra has failed to make any of the periodic or final payments described in the Contract. . . . . The Contract referred to in the Posco Complaint is a settlement agreement entered into between Mr. Inserra and Mr. Posco to resolve Mr. Inserra’s failure to abide by the terms of an oral contract whereby Mr. Inserra agreed to sell four thoroughbred horses to Mr. Posco which were to be used by Mr. Posco in pari-mutuel racing. The Contract was entered into by Mr. Inserra and Mr. Posco on or about November 11, 2004. Pursuant to the Contract referred to in the Posco Complaint Mr. Inserra acknowledged, in part, the following: WHEREAS, Inserra, Seller, and Posco, as Purchaser, entered into an oral agreement for the purchase of certain horses (hereinafter “Agreement”) in which Inserra agreed to furnish four (4) total horses together with all required paperwork, in exchange for $36,750.00, prepaid by Posco; and WHEREAS, a dispute has arisen concerning the performance of Inserra under the Agreement; and WHEREAS, Inserra produced Stormin Hillbilly without the required papers (Jockey Club Registration) to allow Posco to race the horse, as anticipated by the Agreement, thus Posco has paid $3,436.00 for training fees, which he now seeks to be reimbursed as the horse has never been able to race; and WHEREAS, Inserra failed to produce any of the remaining three horses; and WHEREAS, Inserra and Posco are desirous of resolving all disputes and controversies regarding the proposed sale. NOW, THEREFORE inconsideration of the mutual covenants hereinafter set forth and other valuable consideration, the parties hereby agree as follows: Inserra shall, within [30] days, pay to Posco $16,000.00. Inserra will then, within [90] days pay to Posco $10,250.00. Inserra will then, within [120] days pay to Posco $13,936.00. . . . . When Mr. Inserra failed to live up to the terms of the settlement agreement, Mr. Posco filed the Posco Complaint. On or about January 6, 2006, Mr. Posco filed Plaintiff, Keneth [sic] Posco’s Motion for Summary Judgment. On February 8, 2006, the Motion was granted and a Judgment was entered in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, against Mr. Inserra (hereinafter referred to as the “Judgment”). Mr. Inserra was ordered to pay Kenneth Posco $42,075.78. The Judgment was issued as a direct consequence of Mr. Inserra’s breach of the contract he entered into with Mr. Posco for the sale and purchase of thoroughbred racehorses in Florida, a contract which related directly to the sport of racing in pari-mutuel facilities in Florida. On June 18, 2007, the Judges/Stewards at Calder Race Course issued the following written ruling (Calder Order) against Mr. Inserra as a result of the Judgment: Judgment issued by the 17th Judicial Circuit Court in and for Broward County, Florida, on February 8th, 2006, orders Frank D. Inserra to Pay [sic] Kenneth Posco $42,075.78 plus attorney fees. This judgment has not been satisfied. Owner Frank D. Inserra, having been afforded a formal hearing before the Board of Stewards at Calder Race Course on Monday, June 18th, 2007, is suspended sixty days or until such time as the judgment is satisfied or vacated by the court. Suspension will commence on Thursday, June 21, and continue through and including Monday, August 20th, 2007. Denied access, use, and privileges of all grounds under the jurisdiction of the Florida Division of Pari-Mutuel Wagering requiring a license for admission during the term of suspension. The Calder Order was affirmed in a Final Order of the Division entered on or about August 24, 2007. As of the date of the final hearing of this matter, the obligation imposed on Mr. Inserra by the Judgment, which arose out of a transaction relating directly to the sport of racing being conducted at pari-mutuel facilities within Florida, remained unpaid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering: Dismissing Count II of the Amended Administrative Complaint; Finding that Respondent is guilty of the violation alleged in Count I of the Amended Administrative Complaint; and Suspending Mr. Inserra’s pari-mutuel wagering occupational license for a period of not less than ten days and continuing until Mr. Inserra provides satisfactory proof that he has satisfied his outstanding financial obligation to Kenneth Posco as ordered in the Judgment. DONE AND ENTERED this 9th day of April, 2008, in Tallahassee, Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 April, 2008. COPIES FURNISHED: Charles T. “Chip” Collette Assistant General Counsel Office of the General Counsel Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Frank D. Inserra 2649 Sable Palm Drive Miramar, Florida 33023 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 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Conclusions The Department of Business & Professional Regulation, Division of Pari-Mutuel Wagermg (Division), hereby enters this Final Order for the above styled matter. On November 28, 2012, the Honorable Stuart M. Lerner, Administrative Law Judge (A.L.J.), issued his Recommended Order in this case, DOAH Case No. 12-3292. Thereby, A.L.J. Lerner relinquished jurisdiction to the Division and recommended “that it enter a final order dismissing GPTARP’s! Petition for Administrative Hearing, without prejudice ....” A.L.J. Lerner’s Recommended Order is attached to this Final Order and incorporated herein by reference. Accordingly, IT 18 HEREBY ORDERED that this case shall be and is hereby DIS- MISSED, without prejudice. ! GPTARP is Petitioner herein, Gulfstream Park Thoroughbred After Racing Program, Inc. Filed December 4, 2012 1:05 PM Division of Administrative Hearings DONE AND ORDERED this 3 day of December, 2012, in Tallahassee, Florida. N M. BIEGALSKI, CTOR Division of Pari-Mutuel Wagering Department of Business & Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1035
Appeal For This Case Unless expressly waived, any party substantially affected by this final order may seek judi- cial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within thirty (30) days of rendi- tion of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Sec- tion 120.68, Florida Statutes. CERTIFICATE OF SERVICE I hereby certify this day of December, 2012, that a true copy of the foregoing “Order” has been served by U.S. Mail upon the following, with email service as indicated below: J. STEPHEN MENTON, ESQ. MARC W. DUNBAR, ESQ. MICHAEL J. BARRY, ESQ. DANIEL R. RUSSELL, ESQ. Rutledge Ecenia, P.A. Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 551 Post Office Box 10095 Tallahassee, Florida 32302-0551 Tallahassee, Florida 32302-2095 JOHN M. LOCKWOOD, ESQ. WILBUR BREWTON, ESQ. John M. Lockwood, P.A KELLY BREWTON PLANTE, ESQ. 200 West College Avenue, Suite 307 Brewton Plante, P.A. Tallahassee, Florida 32301-7710 225 South Adams Street, Suite 250 Tallahassee, Florida 32301-1709 ANDREW T. LAVIN, ESQ. Navon & Lavin, P.A. 2699 Stirling Road, Suite B-100 Ft. Lauderdale, Florida 33312-6543 AGENCY CLERK’S OFFICE Department of Business & Professional Regulation Counsel Email Copies Furnished to: Marc Dunbar Dan Russell Wilbur Brewton Kelly Plante John Lockwood Steve Menton Mike Barry Andrew Lavin
