03-001459 Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Hialeah Racing Association, Llc Status: Closed Recommended Order on Thursday, September 30, 2004.

Summary: The thoroughbred racing permit should be revoked because the permitholder failed to run any races for two seasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1459

)

HIALEAH RACING ASSOCIATION, )

LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 24, 2004, by means of a video teleconference at

sites in Miami and Tallahassee, Florida, before Administrative

Law Judge Michael M. Parrish.

APPEARANCES

For Petitioner: Joseph M. Helton, Jr., Esquire

Ralf A. Michels, Esquire

Department of Business and

Professional Regulation

Nor thwood Centre, Suite 60

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Joseph P. Klock, Jr., Esquire

Juan Carlos Antorcha, Esquire

Ste el, Hector & Davis, LLP

200 South Biscayne Boulevard, Suite 4000

Miami, Florida 33131 - 2398

STATEMENT OF THE ISSUES

This is a case in which the Petitioner, for reasons set

forth in an Amended Administrative Co mplaint and Notice of

Intent to Deny License, seeks to impose administrative fines

against the Respondent, seeks to suspend or revoke the

Respondent’s thoroughbred racing permit, and seeks to deny the

Respondent’s application for another thoroughbred racin g

license.

PRELIMINARY STATEMENT

At the final hearing in this case the Petitioner presented

the testimony of two witnesses. The Respondent presented the

testimony of two witnesses at the hearing and also presented the

deposition testimony of two witnesse s. Both parties also

offered several documentary exhibits during the course of the

hearing. 1

At the conclusion of the hearing the parties requested, and

were allowed, 15 days from the filing of the hearing transcript

within which to file their respective proposed recommended

orders. Thereafter, the deadline was extended at the request of

the Respondent, and on July 9, 2004, both parties served

proposed recommended orders containing proposed findings of fact

and conclusions of law. The proposals of the pa rties have been

carefully considered during the preparation of this Recommended

Order.

FINDINGS OF FACT

The parties

1. The Petitioner is the State of Florida, Department of

Business and Professional Regulation, Division of Pari - Mutuel

Wagering (Division) , which is created by Section 20.165(2)(f),

Florida Statutes.

2. The Respondent has been the holder of a permit to

conduct pari - mutuel wagering upon thoroughbred horse racing in

Dade County, Florida, since 1978.

Background facts

3. The Respondent has bet ween 1250 and 1350 stable stalls.

Gulfstream, a nearby thoroughbred horse racing facility, has

about 1450 stable stalls. Calder, another nearby thoroughbred

horse racing facility, has about 1750 stable stalls. This

larger number of stalls allows Calder to run races when other

South Florida thoroughbred tracks are not running.

4. The racing season of 1989 - 1990 was the first Florida

thoroughbred horse - racing season after the statutory

deregulation of racing dates. The 1989 - 1990 racing season was

the firs t racing season during which the Respondent had other

South Florida thoroughbred races competing with it on every date

on which it was scheduled to race during that season. During

the 1989 - 1990 racing season, the Respondent ran in direct

competition with Tropical Park, which was a separate permit -

holder owned by Calder. The Respondent’s annual license for the

1989 - 1990 racing season called for it to race on 141 days during

that racing season, but it only raced on 28 days.

5. The Respondent’s decision to cancel the remainder of

its racing dates during the 1989 - 1990 season was due primarily

to an insufficient number of available horses to field a full

program of horses on a day - to - day basis on all of the days on

which the Respondent was supposed to have rac es. Although the

matter is not entirely free from doubt, it was believed by some

horsemen at that time that the lack of a sufficient number of

horses at Hialeah during the 1989 - 1990 racing season was due, at

least in part, to alleged threats by functionar ies of Calder to

the effect that horses stabled at Calder that raced at the

Respondent's race track that season would be evicted from the

Calder stables. 2

6. In 1989, Calder was owned by an individual named Bert

Firestone. In 2002, Calder was owned by, a nd is still owned by,

Churchill Downs, a public company. In 1989, Gulfstream was

owned by the Donn family. In 2002, Gulfstream was owned by, and

is still owned by, Magna Entertainment Corporation.

7. In 1991, the deregulation legislation that permitted

the competitive racing dates that first occurred during the

1989 - 1990 racing season was modified. The modification imposed

tax penalties on race tracks that ran more than one of the three

designated racing periods. The modification was, however,

written to sunset in 2001. The effect of this modification was

to give the Respondent a ten - year reprieve from head - to - head

competition with Gulfstream and Calder.

8. The Respondent lobbied for the passage of legislation

that would, in effect, have forgiven the Respondent for failing

to run its licensed race dates in March, April, and May of 2002.

The legislation was enacted into law in 2002. Gulfstream filed

a lawsuit challenging the constitutionality of that legislation.

The legislation that would have forgi ven the Respondent’s

failure to run its races was eventually found to be

unconstitutional.

9. In 2003, the Respondent proposed additional legislation

that would have forgiven the Respondent for not operating in the

future. Gulfstream successfully lobbie d against the passage of

the legislation.

10. The Respondent has a very large and very high quality

turf course. Horsemen prefer the quality of the turf at the

Respondent’s track, but they run at Gulfstream because of the

better purses. Gulfstream and C alder both enter into revenue

sharing contracts (called “50 - 50 contracts”) with the horsemen.

The Respondent has never agreed to revenue sharing and typically

paid only the statutory minimums.

The 2001 - 2002 thoroughbred racing season

11. On December 12, 2000, the Respondent filed an

application for an annual license to conduct pari - mutuel

operations at a thoroughbred racing meet during the 2001 - 2002

thoroughbred racing season.

12. On February 13, 2001, the Division issued Respondent

License Number 1300, for the 2001 - 2002 thoroughbred racing

season. This license required Respondent to conduct 58 matinee

thoroughbred performances from March 17, 2002, through May 22,

2002.

13. The Respondent did not conduct any of the licensed

thoroughbred performances fr om March 17, 2002, through May 22,

2002.

14. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from March 17, 2002, through

May 22, 2002, was not the direct result of a fire.

15. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from March 17, 2002, through

May 22, 2002, was not the direct result of a strike.

16. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from March 17, 2002, through

Mary 22, 2002, was not the direct result of a war.

17. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from March 17, 2002, through

May 22, 2002, was not the direct result of a disaster beyond the

ability of Respondent to control.

18. Annu al licenses to conduct pari - mutuel operations at

thoroughbred racing meets during the 2001 - 2002 thoroughbred

racing season were also issued to Gulfstream and to Calder. The

racing dates in these two racing licenses did not compete with

each other, but the y did compete with the racing dates in the

annual license issued to the Respondent. The effect of the

licenses issued by the Division for the 2001 - 2002 racing season

was that the Respondent faced competing dates from Gulfstream

from March 17 through April 24, 2002, and then faced competing

dates from Calder from April 25 through May 22, 2002.

19. The Respondent learned of the competing date

applications filed by Gulfstream and Calder for the 2001 - 2002

racing season shortly after January 4, 2001. Upon dis covering

that the competing licenses had been requested, representatives

of the Respondent attempted to contact representatives of

Gulfstream and Calder to negotiate non - competing dates.

Representatives of the Respondent also contacted race tracks

outside of Florida to attempt to create a circuit comprised of

northern horses that did not traditionally race in South

Florida.

20. Representatives of the Respondent did not make a

significant effort to contact horsemen to obtain horses for the

Respondent’s 200 2 race dates. After learning that Gulfstream

and Calder were not willing to change their dates, the

Respondent’s Chairman of the Board, John J. Brunetti, asked the

Respondent’s racing secretary, Sam Abbey, to inquire as to what

horses could reasonably be expected to be shipped down to the

Respondent’s stables for the 2001 - 2002 racing season. Mr. Abbey

made only a half - hearted effort at such inquiries because it

seemed to be pretty much a foregone conclusion that Hialeah was

not going to race on its dates in the 2001 - 2002 season, and the

few horsemen contacted by Mr. Abbey expressed no interest in

coming to Hialeah for the 2001 - 2002 racing season.

21. At all times material to this case, Kent H. Stirling

has been the executive director of the Florida Hors emen's

Benevolent and Protective Association. In that position, Mr.

Stirling acts as a liaison between the race tracks and the

horsemen, representing the interests of the horsemen. Among

other things, Mr. Stirling negotiates purse contracts with the

race track owners. Neither Mr. Brunetti nor Mr. Abbey contacted

Mr. Sirling regarding the negotiation of a purse contract for

the 2001 - 2002 racing season. In the normal course of events,

purse contracts are negotiated six or seven months in advance of

the ra ce dates.

22. Mr. Brunetti and the other people involved in the

management of Hialeah never made a serious effort to conduct any

races during the 2001 - 2002 racing season. Shortly after

learning that they would have to run their races with direct

competit ion that season, it appeared to be a foregone conclusion

that Hialeah would not race that season because it did not want

to race with direct competition. 3 As early as May 22, 2001,

Mr. Brunetti advised race fans in the program for Hialeah’s last

racing da y of the 2000 - 2001 season: “By now you have heard that

Hialeah Park will probably end its racing career with our last

racing day, May 22. This is sad, but true.” An early decision

to not run any races during the 2001 - 2002 racing season is also

evidenced by the fact that Mr. Brunetti never contacted Mr.

Stirling to negotiate a purse contract for the 2001 - 2002 racing

season.

23. Mr. Brunetti’s decision not to race during the 2001 -

2002 racing season appears to have been based largely on the

notion that, be cause the 1989 - 1990 racing season with direct

competition on race dates had been a total disaster, racing in

2001 - 2002 with direct competition would probably also be a

disaster, so it was not worth doing. 4

24. During the 2001 - 2002 and the 2002 - 2003 thor oughbred

racing seasons, by reducing the number of horses per race to 8

or 9, or by reducing the number of races per day to 8 or 9, and

by racing 5 days per week, the Respondent could have

accommodated a sufficient number of horses in its own stables to

ha ve run all of its race dates during those two seasons. 5 In the

past, the Respondent has had racing programs where it ran only 8

races per day. With the exception of the opening and the

closing days, the last year the Respondent ran its authorized

dates, it ran 8 races each day.

The 2002 - 2003 thoroughbred racing season

25. On December 20, 2001, the Respondent filed an

application for an annual license to conduct pari - mutuel

operations at a thoroughbred racing meet during the 2002 - 2003

thoroughbred racing season.

26. On February 14, 2002, the Division issued the

Respondent License Number 1300 for the 2002 - 2003 thoroughbred

racing season. This license required the Respondent to conduct

89 matinee thoroughbred performances from February 1, 2003,

through May 14, 2003.

27. On March 28, 2002, the Respondent filed an application

to amend License Number 1300 for the 2002 - 2003 thoroughbred

racing season requesting a change of the number of performances

and dates.

28. On April 12, 2002, the Division issued the Re spondent

an amended license, Number 1300 - Amendment A, to conduct pari -

mutuel operations for the 2002 - 2003 thoroughbred racing season.

The amended license required the Respondent to conduct 73

matinee thoroughbred performances from January 3, 2003, throu gh

April 13, 2003.

29. The Respondent did not conduct any of the licensed

thoroughbred performances from January 3, 2003, through

April 13, 2003.

30. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from January 3, 2003, through

April 13, 2003, was not the direct result of a fire.

31. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from January 3, 2003, through

April 13, 2003, was not the direct result of a strike.

32. The Respondent’s f ailure to conduct any of the

licensed thoroughbred performances from January 3, 2003, through

April 13, 2003, was not the direct result of a war.

33. The Respondent’s failure to conduct any of the

licensed thoroughbred performances from January 3, 2003, t hrough

April 13, 2003, was not the direct result of a disaster beyond

the ability of the Respondent to control.

34. The circumstances during the 2002 - 2003 were similar to

those of the prior racing season. Racing licenses for the 2002 -

2003 thorough bred r acing season were again also issued to

Gulfstream and to Calder. These two licenses did not compete

with each other, but one of them did compete with the license

issued to the Respondent. The effect of the combined racing

licenses issued by the Division for the 2002 - 2003 racing season

was that the Respondent faced competing dates from Gulfstream

from January 3 through April 13, 2003. The Respondent’s racing

dates did not compete directly with Calder in 2003.

35. For essentially the same reasons as the s eason before,

Mr. Brunetti made an early decision not to race during the 2002 -

2003 thoroughbred racing season. Mr. Brunetti never contacted

Mr. Stirling to negotiate a purse contract for the 2002 - 2003

racing season. Mr. Brunetti never made any serious ef forts to

attempt to attract horses to race at the Respondent's facility

during the 2002 - 2003 season.

The 2003 - 2004 thoroughbred racing season

36. On January 2, 2003, the Respondent filed its

application for an annual license to conduct pari - mutuel

operati ons at a thoroughbred - racing meet during the 2003 - 2004

thoroughbred racing season. The Respondent’s application that

was filed on January 2, 2003, seeks 81 thoroughbred performances

from January 3, 2003, through April 24, 2004.

37. On February 14, 2003, the Division issued an

Administrative Complaint and Notice of Intent to Deny License

based upon Respondent’s failure to conduct thoroughbred

performances in the 2001 - 2002 and 2002 - 2003 thoroughbred racing

seasons.

38. On March 31, 2003, the Respondent fi led a request to

amend its application for an annual license to conduct pari -

mutuel operations at a thoroughbred racing meet during the 2003 -

2004 thoroughbred racing season.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction o ver the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

40. The Petitioner is the agency of the State of Florida

that is charged with the regulation of the pari - mutuel wagering

industry pursu ant to Section 550.0251, Florida Statutes.

41. In a case of this nature, the Petitioner bears the

burden of proving that the licensee engaged in the conduct, and

thereby committed the violations, alleged in the charging

instrument. Proof greater than a m ere preponderance of the

evidence must be presented by the Petitioner to meet its burden

of proof. Clear and convincing evidence of the licensee's guilt

is required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and Section

120.57(1)(j), Florida Statutes ("Findings of fa ct shall be based

upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute. . . .").

42. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidenc e' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be cred ible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the m ind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla . 4th DCA

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991) .

43. In determining whether the Petitioner has met its

burden of proof, it is necessary to evaluate the Petitioner's

evidentiary presentation in light of the specific factual

allegations made in the charging instrument. Due process

prohibits an agency f rom taking disciplinary action against a

licensee based upon conduct not specifically alleged in the

charging instrument. See Hamilton v. Department of Business and

Professional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000);

Lusskin v. Agency for Health Care Administration , 731 So. 2d 67,

69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

44. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging ins trument]

to have been violated." Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule claimed [in the charging

instrument] to have been violated" was in fact violated, as

alleged by the Petitioner, if there is any reasonable doubt,

that doubt must be resolved in favor of the licensee. See

Whitaker v. Department of Insurance and Treasurer , 680 So. 2d

528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of

Professional Regulation, Board of Medicine , 574 So. 2d 164, 165

(Fla. 1st DCA 1990); and Lester v. Department of Professional

and Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

45. Section 550.5251(1), Florida Statutes, defines the

annual thoroughbred racing s eason as the period from “June 1 of

any year through May 31 of the following year.”

46. Section 550.5251(2), Florida Statutes, provides:

(2) Each permitholder referred to in

subsection (1) shall annually, during the

period commencing December 15 of each year

and ending January 4 of the following year,

file in writing with the division its

application to conduct one or more

thoroughbred racing meetings during the

thoroughbred racing season commencing on the

following June 1. Each application shall

specify the number and dates of all

performances that the permitholder intends

to conduct during that thoroughbred racing

season. On or before February 15 of each

year, the division shall issue a license

authorizing each permitholder to conduct

performances on t he dates specified in its

application. Up to March 31 of each year,

each permitholder may request and shall be

granted changes in its authorized

performances; but thereafter, as a condition

precedent to the validity of its license and

its right to retain its permit, each

permitholder must operate the full number of

days authorized on each of the dates set

forth in its license . (Emphasis added.)

47. When a pari - mutuel permitholder fails to run a

performance, the Division is required by Section 550.01215( 4),

Florida Statutes, to conduct a hearing to determine whether or

not to discipline the permitholder. Specifically, Section

550.01215(4), Florida Statutes, provides as follows:

(4) In the event that a permitholder fails

to operate all performances speci fied on its

license at the date and time specified, the

division shall hold a hearing to determine

whether to fine or suspend the

permitholder's license, unless such failure

was the direct result of fire, strike, war,

or other disaster or event beyond the

ability of the permitholder to control.

Financial hardship to the permitholder shall

not, in and of itself, constitute just cause

for failure to operate all performances on

the dates and at the times specified.

48. Section 550.0251(10), Florida Statutes , provides:

(10) The division may impose an

administrative fine for a violation under

this chapter of not more than $1,000 for

each count or separate offense, except as

otherwise provided in this chapter, and may

suspend or revoke a permit, a pari - mutuel

license, or an occupational license for a

violation under this chapter. All fines

imposed and collected under this subsection

must be deposited with the Chief Financial

Officer to the credit of the General Revenue

Fund.

49. Section 550.054(9)(a), Florid a Statutes, provides:

(9)(a) After a permit has been granted by

the division and has been ratified and

approved by the majority of the electors

participating in the election in the county

designated in the permit, the division shall

grant to the lawful pe rmitholder, subject to

the conditions of this chapter, a license to

conduct pari - mutuel operations under this

chapter, and, except as provided in s.

550.5251, the division shall fix annually the

time, place, and number of days during which

pari - mutuel oper ations may be conducted by

the permitholder at the location fixed in the

permit and ratified in the election. After

the first license has been issued to the

holder of a ratified permit for racing in any

county, all subsequent annual applications

for a lic ense by that permitholder must be

accompanied by proof, in such form as the

division requires, that the ratified

permitholder still possesses all the

qualifications prescribed by this chapter and

that the permit has not been recalled at a

later election he ld in the county.

50. There is clear and convincing evidence that the

Respondent failed to conduct any of the performances it was

authorized to conduct during the 2001 - 2002 and the 2002 - 2003

thoroughbred racing seasons. In order to determine whether su ch

failures are exempt from the disciplinary action authorized by

Section 550.01215(4), Florida Statutes, it must be determined

whether such failures were “the direct result of fire, strike,

war, or other disaster or event beyond the ability of the

permith older to control.” There is clear and convincing

evidence that the Respondent’s failures to conduct any

performances during the 2001 - 2002 and the 2002 - 2003 thoroughbred

racing seasons were not “. . . the direct result of fire,

strike, war, or other disast er. . . .” Thus, the issue of

whether such failures are exempt from the disciplinary action

authorized by Section 550.012154), Florida Statutes, turns on a

determination of whether such failures were the direct result of

some other “event beyond the abili ty of the permitholder to

control.”

51. The parties strongly differ in their views as to what

types of events are encompassed by the last - quoted statutory

language. The Petitioner argues that the language should be

given a narrow interpretation, while th e Respondent argues in

favor of a broad interpretation. A determination of the proper

scope of the term “event beyond the ability of the permitholder

to control” must begin with a consideration of the context in

which the quoted term appears. The subject term is a general

term that appears at the end of an enumeration of specific

things; those specific things being “fire, strike, war or other

disaster.” In such circumstances, the principles of statutory

construction known as ejusdem generis and noscitur a sociis are

applied to determine the meaning of the more general word at the

end of a series of more specific words or phrases. In State ex

rel. Wedgworth Farms, Inc. v. Ina S. Thompson , 101 So. 2d 381

(Fla. 1958), the court described the application of ejusdem

generis as follows:

Under this doctrine when an enumeration of

specific things is followed by some more

general word or phrase, then the general

word or phrase will usually be construed to

refer to things of the same kind or species

as those specif ically enumerated. Hanna v.

Sunrise Recreation, Inc. , Fla. 1957, 94 So.

2d 597.

The rule is merely an application of a phase

of the broader maxim noscitur a sociis which

simply means that general and specific words

capable of analogous meaning when assoc iated

together take color from each other so that

the general words are restricted to a sense

analogous to the less general. Townsend v.

State , 63 Fla. 46, 57 So. 611.

52. Similarly, in Cepcot Corporation v. Dept. of Bus. and

Prof. Regulation , 658 So. 2 d 1092 (Fla. 2d DCA 1995), the court

stated:

Legislative intent is the primary factor

in construing a statue, and whenever

possible that intent should be derived from

the language of the statute. Pfeiffer v.

City of Tampa , 470 So. 2d 10 (Fla. 2d DCA),

r eview denied, 478 So. 2d 53 (Fla. 1985);

Vocelle v. Knight Bros. Paper Co. , 118 So.

2d 664 (Fla. 1st DCA 1960). A statute

should be construed in its entirety and

within the context provided by the related

statutes within the same act. Florida Jai

Alai, I nc. v. Lake Howell Water &

Reclamation Dist. , 274 So. 2d 522 (Fla.

1973). Words within a statute should not be

given a ‘literal’ meaning if that meaning

conflicts with the plain legislative intent.

Holly v. Auld , 450 So. 2d 217 (Fla. 1984).

Under the do ctrine of noscitur a sociis one

examines the other words used within a

string of concepts to derive the

legislature’s overall intent. Carraway v.

Armour & Co. , 156 So. 2d 494 (Fla. 1963);

Smith v. State , 606 So. 2d 427 (Fla. 1st DCA

1992), review denied, 618 So. 2d 211 (Fla.

1993).

53. And in City of West Palm Beach v. Board of Trustees of

Internal Improvement Trust Fund , 746 So. 2d 1085 (Fla. 1999),

the Florida Supreme Court quoted with approval the following

language from the Fourth District Court of A ppeal opinion that

was under review:

Where a statute first uses ‘terms each

evidently confined a limited to a particular

class of a known species of things,’ and

later uses a broader term, the more general

word is construed as applying to the ‘same

kind of species with those comprehended by

the preceding limited and confined terms.’

Dunham v. State , 140 Fla. 754, 192 So. 324,

326 (1939)(quoting Ex parte Amos , 93 Fla. 5,

112 So. 289, 293 (1927). As the supreme

court has explained this principle of

statut ory construction, general and specific

words which are capable of an analogous

meaning being associated together take color

from each other, so that the general words

are restricted to a sense analogous to the

less general.

54. The principles of ejusdem generis and noscitur a

sociis are also applicable to the construction and

interpretation of criminal statutes. State v. Wilson , 793 So.

2d 1003 (Fla. 2d DCA 2001). Accordingly, they would appear to

also be applicable to the interpretation of statutory pr ovisions

regarding administrative penalties.

55. In this case, application of the principles of ejusdem

generis and noscitur a sociis leads one to the conclusion that

the term “event beyond the ability of the permitholder to

control” in Section 550.01215( 4), Florida Statutes, must be read

as being modified by the terms that precede it in the statutory

itemization. Accordingly, the subject term does not encompass

every event beyond the control of the permitholder, but only

events beyond the control of the permitholder that are similar

to a “fire, strike, war, or other disaster. . . .” Events such

as floods, hurricanes, and tornados come readily to mind. Also,

terrorist or criminal acts that cause death, serious injury, or

destruction of property. But the subject term can not be

reasonably construed to encompass such events as actions by

competitors to increase competition or otherwise interfere with

the Respondent's business activities.

56. When the subject statutory language is construed in

the manner d escribed above, on the facts presented in this case

the Petitioner does not have any statutory basis for avoiding

the statutory consequences of its decisions not to run any of

its authorized races during the 2001 - 2002 and 2002 - 2003

thoroughbred racing seas ons. Those consequences include

revocation of the Respondent’s thoroughbred racing permit and

denial of the Respondent’s application for a racing license for

the 2003 - 2004 thoroughbred racing season.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be issued in this case

revoking the Respondent’s thoroughbred racing permit and denying

the Respondent’s application for a racing license for the 2003 -

2004 thoroughbred racing season.

DONE AND E NTERED this 30th day of September, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrat ive Hearings

this 30th day of September, 2004.

ENDNOTES

1/ The description and the fate of each exhibit is memorialized

in the transcript of the hearing.

2/ There is very little in the way of persuasive evidence about

th e reasons for the insufficient number of horses available to

the Respondent during the 1998 - 1990 racing season. Much of the

evidence on this issue consisted of uncorroborated hearsay. Much

of the non - hearsay evidence on this issue was vague and non -

speci fic.

3/ There is very little in the way of persuasive evidence about

why Mr. Brunetti decided not to run any of the Respondent's races

during either the 2001 - 2002 or the 2002 - 2003 racing seasons. The

reasons given in Mr. Brunetti's testimony are, for th e most part,

either vague and non - specific or inconsistent with more

persuasive evidence. The testimony of Mr. Abbey was also largely

vague and non - specific, not to mention confusing. It is at times

difficult to tell when Mr. Abbey was talking about even ts during

the 1989 - 1990 racing season and when he was talking about events

during the racing seasons of 2001 - 2002 and 2002 - 2003.

Mr. Abbey's credibility was also diminished by his exaggerated

estimate that it would take 4,500 or 5,000 horses for the

Respo ndent to have conducted its authorized races during the two

racing seasons at issue here.

4/ The evidence hints at the possibility that Mr. Brunetti’s

decision not to race during the 2001 - 2002 season might also have

been colored by a belief on his part that the people in charge of

operations at Gulfstream and Calder were threatening to evict the

owners of any horses stabled in Gulfstream or Calder stalls that

raced at Hialeah. However, there is no persuasive evidence of

any such threats by anyone at eit her Gulfstream or Calder during

the 2001 - 2002 racing season or during any more recent racing

season. Nor is there any persuasive evidence that either

Gulfstream or Calder had a business practice or business policy

of prohibiting trainers stabled at their facilities from running

their horses at the Respondent’s facility during the 2001 - 2002

racing season or during any more recent racing season.

5/ This finding follows from Mr. Romanik's expert opinions at

pages 113 - 114 of the hearing transcript regarding the number of

horses that are necessary to run a racing program. Applying

Mr. Romanik's expert assumptions and math, running 10 horses per

race, running 9 races per day, and racing 5 days per week would

require a total of 1,350 horses. Applying those sam e assumptions

and math, running 10 horses per race, running 8 races per day,

and racing 5 days per week would require a total of 1,200 horses.

Similarly, running 9 horses per race, running 9 races per day,

and racing 5 days per week would require a total of 1,215 horses.

The Respondent had sufficient stalls for those numbers of horses.

COPIES FURNISHED:

Joseph M. Helton, Jr., Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 60

1940 North Monroe Street

Tallahassee, Fl orida 32399 - 2202

Joseph P. Klock, Jr., Esquire

Steel, Hector & Davis, LLP

200 South Biscayne Boulevard, Suite 4000

Miami, Florida 33131 - 2398

David J. Roberts, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulati on

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.