15-003866 Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Hamilton Downs Horsetrack, Llc Status: Closed Recommended Order on Thursday, May 26, 2016.

Summary: Petitioner failed to prove that Respondent failed to operate all of its permitted horse race performances at the date and time specified in its license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Petitioner , Ca se No. 1 5 - 3 866

vs.

HAMILTON DOWNS HORSETRACK, LLC ,

Respondent .

/

RECOMMENDED ORDER

A final hearing was conducted in this case on April 25 and

26, 2016 , in Tallahassee, Flo rida, before E. Gary Early, an

administrative law j udge with the Division of Administrative

Hearings.

APPEARANCES

For Petition er: Caitlin R. Mawn, Esquire

Thomas J. Izzo, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

For Respondent : Seann M. Frazier, Esquire

Mark Ito, Esquire

P arker, Hudson, Rainer and Dobbs, LLP

215 South Monroe Street , Suite 750

Tallahassee, Florida 32301

Richard Earl Gentry , Esquire

2305 Braeburn Circle

Tallahassee, Florida 3230 9

STATEMENT OF THE ISSUES

The issue s for disposition in this cas e are whet her

Hamilton Downs violated s ection 550.01215(3), Florida Statutes

(2013) , by failing to operate all performances specified on its

license on the date and time specified , and w hether the Division

should be estopped from prosecuting Hamilton Downs .

PRELIMINARY STATEMENT

On or about August 13, 2014, Petitioner, Department of

Business and Professiona l Regulation, Division of Pari - M utuel

Wagering ( Ð Petitioner Ñ or Ð Division Ñ ) , served its Administrative

Complaint in Case No. 2014 - 026021 on Respondent , Hamilton Downs

Racetrack, LLC (ÐRespondentÑ or ÐHamilton DownsÑ) . O n

August 27, 2014 , Respondent filed its Request for Formal

Administrative Hearing by which it disputed the facts alleged in

the Administrative Complaint .

On October 15, 2014, the Divisi on entered its Amended

Administrative Complaint . The three - count Amended

Administrative Complaint alleged that Hamilton Downs failed to

operate all performances specified on its license on the date

and time specified ; that Hamilton Downs failed to have a number

on its wagering terminal window that matched the totali s ator

reports; and that one or more horses racing in the performances

were owned by an unlicensed owner.

On January 15, 2015, Hamilton Downs filed its Amended

Request for Formal Administrative Hearing . The matter was

referred to the Division of Administrative Hearing s on July 9,

2015.

The final hearing was scheduled for October 2, 2015 . It

was continued several times, with the hearing being finally

scheduled to convene on April 25, 2016.

The case was transferred to the undersigned on April 11,

2016 , and the final hearing was thereafter held as scheduled.

The parties filed a Joint Pre - hearing Stipulation in which

they identified stipulated facts for which no further proof

would be necess ary. The stipulated facts have been accepted and

considered in the preparation of this Recommended Order.

The Joint Prehearing Stipulation also identified the nature

of the controversy as being Ð whether Hamilton Downs violated

Section 550.01215(3), Flori da Statutes, by failing to operate

all performances specified on its license on the date and time

specified. Ñ Upon inquiry at the commencement of the hearing,

the parties agreed that Counts Two and Three of the Amended

Administrative Complaint were no lon ger at issue.

At the final hearing, the Division presented the testimony

of Louis Haskell, Jr., who was at all times relevant to this

proceeding the state steward charged with overseeing the

Hamilton Downs meet ; Glenn Richards, managing member and

major ity owner of Hamilton Downs; Charles Taylor, an

investigative specialist for the Division; and Derek Washington,

the DivisionÓs investigative supervisor for the central/northern

region. PetitionerÓs Exhibits 1, 2, 4, and 5 were received in

evidence.

Ha milton Downs presented the testimony of L.P. Stallings,

the DivisionÓs northern regional manager; Donald Carter, Jr., a

representative of Amtote and the data entry clerk for race

results at Hamilton Downs; Sammy McCoy, vice - president of the

Hamilton Downs Quarter Horse Association; and Glenn Richards .

RespondentÓs Exhibit s F, K through P, S, V, and W were received

in evidence. RespondentÓs Exhibit V is the deposition

transcript of Jonathan Zachem, the designated agency

representative pursuant to Florida R ule of Civil Procedure

1.3 10(b)(6) . RespondentÓs Exhibit W is the deposition

transcript of Jo Ellen Kelly who was the DivisionÓs chief

auditing officer, and who was determined to reside more than 100

miles from the location of the final hearing. Both depo sition

transcripts have been given the evidentiary weight as if the

deponents offered live testimony at the final hearing.

A two - volume Transcript of the proceedings was filed on

Ma y 10 , 2016. The parties timely filed Proposed Recommended

Order s, which have been duly considered in the preparation of

this Recommended Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (201 3 ), unless otherwise noted. 1 /

FINDINGS OF FACT

1 . The Division is the state agency charged with

regulating pari - mutuel wagering activities in Florida pursuant

to c hapter 550 , Florida Statutes .

2 . At all times material to the Amended Administrative

Complaint , Hamilton Downs held a Quarter Horse Racing pari -

mutuel permit issued by the Division, number 0000547 - 1000, that

authorize d Hamilton Downs to conduct pari - mutuel wagerin g on

quarter horse races pursuant to chapter 550 .

3 . On or about March 15, 2013, the Division issued a

Permitholder Annual License & Operating Day License (the

Ðoperating licenseÑ) , number 0000547 - 1001 , to Hamilton Downs ,

which authoriz ed Hamilton Down s to perform 20 regular quarter

horse performances from June 18 through 22 , 2014, at a rate of

four performances a day. Each performance consisted of eight

individual races. Thus, the operating license authorized a

total of 160 races.

4 . In 2012 and 2 013, Hamilton Downs conducted licensed

quarter horse barrel match races at its facility. When the 2014

operating license was issued, Hamilton Downs intended to conduct

a meet consisting of barrel match races.

5 . As a result of litigation that culminat ed several

months before the commencement of the Hamilton Downs 2014 racing

meet, the Division advised Hamilton Downs that it would not be

able to conduct barrel match racing under its quarter horse

racing operating permit. However, Hamilton Downs was per mitted

to conduct Ð flag - drop Ñ racing during that period of time .

6 . From June 18 through 22, 2014, Hamilton Downs conducted

the q uarter h orse Ðflag dropÑ racing meet pursuant to its

operating license .

7 . Flag drop racing as performed at Hamilton Downs

involve d two horses racing 2 / simultaneously on a crude dirt

ÐtrackÑ approximately 1 1 0 yards in length . The track was

straight for about 100 yards, with a pronounced rightward turn

to the finish line , and was h aphazardly lined with white stakes .

The race was started by a person who wave d a red cloth tied to a

stick whenever it appeared that both horses were in the general

vicinity of what the starter perceived to be the Ðstarting

line.Ñ There was no starting box or gate.

8 . The track was in the middle of an open field. There

was no grandstand, though there was a covered viewing area on

ÐstiltsÑ from which the state steward and track stewards could

observe the races. The track had one betting window and tote

machine in an on - site shed. The only windo w in the shed was,

mercifully, occupied by a window - unit air conditioner. As

stated by Mr. Haskell, Ð nothing about Hamilton Downs is real in

terms of racetrack standards .Ñ

9 . For several years prior to the 2014 meet, Hamilton

Downs shared horses and ri ders with the racetrack in Gretna,

Florida , and the North Florida HorsemenÓs Association. Several

weeks prior to the commencement of the Hamilton Downs 2014 meet,

a schism developed between the groups. As a result, the Gretna

racetrack and North Florida HorsemenÓs Association prohibited

its horses and riders from compet ing in Hamilton Downs meets.

That action stripped Hamilton Downs of most of the horses and

riders that it was relying upon to perform in its meet.

10 . Mr. Richards had the permitted date s, and was required

to race on those dates to remain in compliance. He was able to

make arrangements for horses Ðway down on the eligible list.Ñ

They were, for the most part, older horses of lesser quality.

Nonetheless, Hamilton Downs did its best to fu lfill its

permitted slate of races.

11 . The pool from which the races were set included

1 9 horses and six riders. The horses and riders were supplied

to Hamilton Downs by the Hamilton Downs Quarter Horse

Association (HDQHA) . The H DQHA believed it cou ld provide enough

horses to handle the meet.

12 . The horses, and their owners, were:

Precious N Fritz -- Stardust Ranch, LLC

Skippers Gold Tupelo -- Stardust Ranch, LLC

Business Official -- Stardust Ranch, LLC

Cutter With A Twist -- Stardust Ranch, LLC

Dun It Precious Gal -- Stardust Ranch, LLC

Heavens Trick -- Stardust Ranch, LLC

Dancer Blue Ghost -- Amie Peacock

Starpion N Skip -- Amie Peacock

Twist N to Stardust -- Amie Peacock

Docs Li l Jose -- Amie Peacock

Dandees Bay Apache -- Amie P eacock

Kings Hollywood Moon -- Amie Peacock

Lassies Last Chance -- Elaine Tyre

Sugars Daisy Bar -- Elaine Tyre

Touch of Leaguer -- Elaine Tyre

J o ys Winning Touch -- Elaine Tyre

Jazz Potential -- Emma McGee

Sonn e y Dees Diamond -- Emma McGee

Roya l King Princess -- Richard McCoy

13 . The riders were:

Amie Peacock

Elaine Tyre

Emma McGee

Richard McCoy

Nicholas McCoy

Christine Bradley

14 . Each of the owners w as licensed by the Division.

15 . The riders were mainly local riders.

16 . The breeds of the horses complied with state law

regarding horses allowed to run in quarter horse races. 3 /

17 . The horses had their ownership records and identifying

tattoos, and their current Coggins forms , which are required to

substantiate that they have tested negative for diseases.

18 . Mr. Stallings testified that there were no problems

regarding the age s of the horses since Ðthat is not something

DBPR worries about.Ñ

19 . The animal detention areas checked out and were

secure. Mr. Taylor inspected the tra ck and found no violations

of track setup under the current rules.

20 . The horses and riders had access to the track for the

three days prior to the meet for purposes of training and

acclimating the horses to the track.

21 . The races at Hamilton Downs during June 2014 were

conducted in the presence of a s tate s teward.

22 . The races must be seen to be believed. The 14 events

for which video evidence was received show a series of races

involving -- a s a rule -- tired, reluctant, skittish, or

disintere sted horses moving at a slow pace down the dust - choked

path . There was no marked starting line or finish line. The

horses were often yards apart when the red rag - on - a - stick was

waved. With one exception (performance 2, race 7 ) , the gait of

the ÐracingÑ horses ranged between a slow walk and a canter .

H orses often simply stood at the starting line before slowly

plodding down the track. In one instance, a horse actually

back ed up , until a bystander took it by the lead, thereafter

giving the horse a congra tulatory slap on the rump when it began

to move in a forward direction. Mr. Haskell noted races in

which riders fell off of their horses, or in which a horse left

the course . H e described numerous races , aptly, as non -

competitive because one or both of t he entrants walked ,

including one race (day 3, card 3, race 5) in which the racing

steed took 1 minute and 45 seconds to cover the 110 - yard course.

The overall quality of the videotaped races was about what one

would expect of a n entry - level campersÓ hors e show held at the

conclusion of a two - week YMCA summer camp.

23 . The interest in the series of races by the betting

public was commensurate with the quality of the races. Wagers

were of the $2.00 variety. Over the course of the 160 - race

meet, a t otal of 10 bets were placed, with two of those

reportedly placed by a representative of a competing facility in

an effort to substantiate wrongdoing on the part of Hamilton

Downs. Given the competitive level of the races, a $20 handle

seems about right.

24 . Mr. Haskell testified that the same horses just kept

racing over and over. However, his stewardÓs report noted that

he Ðrefer[ed] to the Òrule bookÓ numerous times in the five days

pertaining to ages of horses , number of races a horse may race

in a limit ed time, etc., but the rules just didnÓt exist.Ñ

25 . Mr. Taylor expressed similar concerns with the failure

of the horses to ÐbreakÑ at the start of the races, their slow

pace, and other issues. He did not make a point of them or

bring them to the atten tion of Hamilton Downs because there was

Ð no rule violation.Ñ

26 . Despite the bemused, occasionally embarrassed

expressions on the faces of the riders as their horses ambled

slowly down the track, the witnesses, including Mr. Haskell and

Mr. Taylor , un iformly testified that the riders tried to make

sure the races were competitive. Thus, the poor quality of the

races cannot be attribut ed to a lack of effort on their part.

27 . Ð Coupled entries Ñ are those in which horses owned by

the same owner compete against one another in the same race .

28 . On the second race of the meet, it was discovered that

the two horses scheduled to race were both owned by Amie

Peacock. Although the racing program had been distributed to

all race officials involved, including the state steward, no one

noticed the coupled entry. The preponderance of the evidence

indicates that the coupled entry was discovered immediately

before the start of the race. The racing secretary attempted to

alert the starter, but was unsuccessful. Therefore , the race

was run. 4 /

29 . When the coupled entry was discovered, and before the

race was made official, a post - race meeting of roughly 30

minutes was held to determine how to proceed . A preponderance

of the evidence indicates that the meeting participants

included , among others, the state steward, the track stewards,

the state investigative specialist, the racing secretary, and

the track owner .

30 . During the meeting, Mr. Richards offered that the race

could be Ðre - run,Ñ an option that was rejected since there is no

authority for re - running a race. Mr. Richards also proposed

calling a Ðno - contest,Ñ which would allow Hamilton Downs to

request an additional race from the Division. An additional

race is not a re - run of the disputed race, but is a replacement

race to be conducted at a different time during the meet.

Mr. Richards was familiar with the procedure for requesting an

additional replacement race , and was fully prepared to do so.

I t is not uncommon for such requests to be made in al l types of

pari - mutuel activities.

31 . Mr. Haskell acknowledged the possibility of declaring

a no - contest for the coupled entry, and agreed that if he had

declared a no - contest , Hamilton Downs could have requested a

Ð make - up date Ñ to be approved by the D ivision .

32 . At the conclusion of the meeting, Mr. Haskell did not

declare a no - contest. Rather, he decided to make the race

Ðofficial.Ñ As a result , Hamilton Downs could not request a

make - up race.

33 . Mr. Taylor discussed the incident with manag ement of

Hamilton Downs, and promised to keep an eye out to make sure a

coupled entry did not recur. After the second race of the meet ,

there w ere no further instance s of coupled entries .

34 . Over the course of the meet, Mr. Haskell declared all

of the 160 races , including the coupled entry race, to be

official, whereupon the winner of the race was determined and

results were entered by an Amtote employee into the computer and

transmitted to the Ðhub.Ñ At that point, wagers (if any) were

paid out, and t he tote was allowed to roll over to the next

race.

35 . During the June 2014 races at Hamilton Downs, a purse,

stake , or reward was offered for the owner of each horse to

cross the finish line first.

36 . Mr. Richards was frank in his admission that the 2014

race season was important because it allowed Hamilton Downs to

qualify for a cardroom license and , if ultimately allowed, slot

machines. However, the reason for conducting the meet is of no

consequence to the outcome of this proceeding.

37 . Hamilt on Downs has, subsequent to the 2014 meet ,

conducted flag drop races at its facility pursuant to operating

permits issued by the Division.

38 . Within the past five years, the Division has never

filed an administrative complaint , suspended a pari - mutuel

p ermitholder , or fined a pari - mutuel permitholder due to a

failure to conduct a race at any particular speed.

39 . Within the past five years, the Division has never

suspended a pari - mutuel permitholder for a violation of s ection

550.01215 that pertained to a race or race s that were made

official by a state s teward.

CONCLUSIONS OF LAW

A. Authority

40 . The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat . (2015).

41 . Ð[I]t is well established that the legislature has

broad discretion in regulating and controlling pari - mutuel

wagering and gambling under its police powers.Ñ Div. of Pari -

Mutuel Wagering , Dep't of Bus. Reg. v. Fl a . Horse Council, Inc. ,

464 S o. 2d 128, 130 (Fla. 1985). Thus, the Division has the

authority as conferred by the L egislature to adopt pari - mutuel

rules to establish standards for Ð holding, conducting, and

operating of all racetracks, race meets, and races held in this

state . Ñ

B. Le gal Standards

42 . Section 550.01215(3) , which forms the basis for the

violation alleged in Count One of the Amended Administrative

Complaint , provides, in pertinent part, that Ð [e] ach

permitholder shall operate all performances at the date and time

speci fied on its license. Ñ

43 . A ÐperformanceÑ is defined in section 550.002(25) as

Ð a series of events, races, or games performed consecutively

under a single admission charge. Ñ

44 . The Division alleges, in Count One of the Amended

Administrative Complain t , that Hamilton DownsÓ failure to operate

all performances at the date and time specified on its license

subjected it to section 550.01215(4), which provides, in

pertinent part, that:

In the event that a permitholder fails to

operate all performances spec ified on its

license at the date and time specified, the

division shall hold a hearing to determine

whether to fine or suspend the permitholderÓs

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.

45 . The Division further alleges, in Count One of the

Amended Administrative Complaint , that Hamilton DownsÓ failure to

operate all performances at the date and time specified on its

license subjected it to secti on 550.0 251(10) , which provides, in

pertinent part, that:

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 su spend or

revoke a permit, a pari - mutuel license, or an

occupational license for a violation under

this chapter.

46 . In addition to the foregoing, the following clause of

section 550.01215 (3) is relevant to the issues in this

p roceeding :

The division sh all have the authority to

approve minor changes in racing dates after a

license has been issued.

C. Burden of Proof

47 . The Division bears the burden of proving the specific

allegations of fact that support the charges alleged in the

Amended Administrat ive Complaint by clear and convincing

evidence. § 120.57(1)(j), Fla. Stat.; DepÓt of Banking & Fin.,

Div. of Sec. and Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d

932 (Fla. 1996); see also Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); Fox v. DepÓt of Health , 994 So. 2d 416 (Fla. 1st DCA

2008); Kany v. Fla. Eng'rs Mgmt. Corp. , 948 So. 2d 948 (Fla. 5th

DCA 2007); Dieguez v. DepÓt of Law Enf., Crim. Just. Stds. &

Training CommÓn , 947 So. 2d 591 (Fla. 3d DCA 2007); Pou v. DepÓt

of Ins. and Treas. , 707 So. 2d 941 (Fla. 3d DCA 1998).

48 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). The clear and convincing evidence level

of proof :

entails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact without hesitancy.

Clear and convincing evidence

requires that the evidence must be

found to be credible; 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 mind of the trier of fact a

firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be

establi shed.

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

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although [the clear and convincing] standard of proof may be met

where the evidence is in conflict, it seems to preclude evidence

that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros. ,

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

49 . The allegations set forth in the Amended Administrative

Complaint are the grounds upon which this proceeding is

predicated. Trevisani v. DepÓt of Health , 908 So. 2d 1108, 1109

(Fla. 1st DCA 2005); see also Cottrill v. DepÓt of Ins. , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this

proceeding is properly rest ricted to those matters as framed by

the Division . M.H. v. DepÓt of Child. & Fam. Servs. , 977 So. 2d

755, 763 (Fla. 2d DCA 2008).

50 . Section 550.01215(4) is penal in nature, and must be

strictly construed, with any ambiguity construed against the

Divis ion . Penal statutes must be construed in terms of their

literal meaning, and words used by the Legislature may not be

expanded to broaden the application of such statutes. Elmariah

v. DepÓt of Bus. & ProfÓl Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA

1990); see also Beckett v. DepÓt of Fin. S ervs . , 982 So. 2d 94,

100 (Fla. 1st DCA 2008); Whitaker v. DepÓt of Ins. , 680 So. 2d

528, 531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treas. , 585

So. 2d 1009, 1013 (Fla. 1s t DCA 1991); Davis v. Dep't of Prof'l

Reg. , 457 So. 2d 1074, 1076 (Fla. 1st DCA 1984).

D. Count One of the Amended Administrative Complaint

51 . Count One of the Amended Administrative Complaint

simply alleges that Hamilton Downs failed to Ð operate all

p erformances at the date and time specified on its license. Ñ

52 . That allegation which , on its face, is targeted to the

number, date , and time of performances, and not to the quality of

performances, is insufficient to support a disciplinary sanction

ba sed on what the Division perceives to be inadequate speed,

ÐbreakingÑ ability, or competitiveness of any given race.

53 . Even if the Amended Administrative Complaint pled the

quality of the races, which it did not, the Division was candid

in its Propose d Recommended Order that Ð [n] o rule or statute

explicitly sets forth the particular speed at which a horse race

must be conducted to count towards a permitholderÓs license

requirements. Ñ However, in support of its position that the

allegation in Count One could be expanded to include speed as an

ÐinherentÑ element of the violation as alleged, the Division

cites to Ðinterrelated Ñ definitions of ÐraceÑ and ÐcontestÑ in

r ules 61D - 2.001(5) and 61D - 2.001(15) .

54 . Rule 61D - 2.001(5) defines a ÐcontestÑ as Ða r ace . . .

between horses . . . for purses, stakes, or reward on any

licensed race course . . . and conducted in the presence of

judges or stewards.Ñ

55 . Rule 61D - 2.001(15) defines a ÐraceÑ as Ða contest for

purse, stakes or entry fees, on an approved cou rse, and in the

presence of duly appointed racing officials.Ñ

56 . The evidence in this case establishes that Hamilton

Downs conducted its licensed meet for purses or stakes on an

approved course, and in the presenc e of duly - appointed racing

officials . I ssues of the quality of the races being sub - par were

not specifically pled in Count One , and were not proven to be

violative of any specific statute or rule administered by the

Division.

E. Coupled Entry

57 . The Division has argued that the coupled entr y race, in

which both horses were owned by Amie Peacock, resulted, in

essence, in the race being a nullity . If that race is not

considered, Hamilton Downs would have conducted only 159 races

during its meet, not the 160 races that were permitted , and thus

would not have Ð operate [d] all performances . . . specified on

its license . Ñ

58 . Rule 61D - 7.001(12) de f ines a Ðcoupled entryÑ as Ð two or

more horses having the same owner entered to run in the same

race. A coupled entry is considered a single betting i nterest

for purposes of wagering. Ñ

59 . As stipulated by the parties, t he Division has no rule

defining a coupled entry as a single betting interest for any

purpose other than wagering ; has no rule defining a co upled entry

as a single betting interest for the purposes of determining

whether an event is a race or contest ; has no rule that prohibits

coupled entries during a horse race ; and has no rule that

excludes any coupled entry from the definition of a Ð contest. Ñ

60 . Chapter 61D - 7 contains numerous p rovisions that

recognize the legality of coupled entries in licensed horseraces,

and prescribes how those coupled entries are to be handled for

purposes of paying out winning wagers. What is missing in the

rules of the division is any suggestion that coup led entries are,

per se, illegal, or that races with coupled entries are subject

to invalidation on that basis alone. Again, the DivisionÓs

efforts to cobble together various statutory and regulatory

definitions to create a standard by which coupled entry races are

to be nullified does not meet the requirement s that violations of

law be limited to those pled, and that statutes authorizing penal

relief be strictly construed, with any ambiguity construed

against the Division .

61 . Based on the foregoing, t he Division failed to prove,

by clear and convincing evidence, that Hamilton Downs failed to

operate all performances at the date and time specified on its

license .

F. Estoppel

62 . In the event the Division determines that its

regulatory authority, as p rescribed by statute and rule, allows

it to find a violation of sectio n 550.01215(3) under the facts of

this case , the issue of estoppel, as raised by Hamilton Downs,

must be addressed.

63 . The undersigned agrees with the Division that estoppel

against t he Division is not warranted due to the alleged lack of

prior administrative action in similar circumstances, or due to

the loss or destruction of documents . Thus, the issue of

estoppel is limited to that pled or reasonably inferred from the

Amended Reque st for Administrative Hearing, i.e., whether

estoppel as to the coupled entry race is warranted as a result of

the effect of the 30 - minute meeting held after the second race,

and the decision by Mr. Haskell to declare the race to be

Ðofficial.Ñ 5 /

64. It is well established that:

The elements which must be present for

application of estoppel are: Ð (1) a

representation as to a material fact that is

contrary to a later - asserted position;

(2) reliance on t hat representation; and

(3) a change in position det rimental to the

party claiming estoppel, caused by the

representation and reliance thereon. Ñ As a

general rule, estoppel will not apply to

mistaken statements of the law, but may be

applied to erroneous representations of fact.

Equitable estoppel will ap ply against a

governmental entity Ð only in rare instances

and under exceptional circumstances. Ñ . . .

Th e reasonable expectation of every citizen

Ð that he will be dealt with fairly by his

government, Ñ can form the basis for

application of equitable estopp el against a

governmental entity.

One seeking to invoke the doctrine of

estoppel against the government first must

establish the usual elements of estoppel, and

then must demonstrate the existence of

affirmative conduct by the government which

goes beyon d mere negligence, must show that

the governmental conduct will cause serious

injustice, and must show that the application

of estoppel will not unduly harm the public

interest. (internal citations omitted).

Council Bros. v. City of Tallahassee , 634 So. 2d 264, 266 (Fla.

1st DCA 1994) .

65 . Whether the coupled entry was noticed before or after

the second race was run is not important, though the evidence

suggests that an unsuccessful effort to stop the race was made .

However, once the race was complet ed, the evidence establishes

that a lengthy meeting was held between representatives of the

Division and Hamilton Downs to discuss the course of action to

be taken.

66 . The facts of this case establish that Mr. Richards

offered to Ðre - runÑ the race, an offer that was, correctly,

refused.

67 . Mr. Richards, who knew the procedures for obtaining a

replacement race from the Division, testified convincingly that

he also offered to accept the race as a no - contest , which would

have allowed him to request a n amendment to the racing date, a

procedure allowed by statute and which was, by all accounts, not

uncommon. A Ðno - contestÑ ruling by the state steward would have

allowed for a request for an amended date to be made.

Mr. Haskell understood that if he had declared the race to be a

Ðno contest,Ñ Hamilton Downs could have requested a replacement

race.

68 . After the lengthy discussion, Mr. Haskell elected to

declare the race to be official, thus allowing wagers to be

paid, and the tote to roll over to the n ext race. By so doing,

the race became one of the 160 races required under the permit ,

and effectively foreclosed Hamilton DownsÓ available statutory

remedy of requesting the Division to approve an additional

substitute race as a Ð minor change [] in racing dates after a

license has been issued .Ñ § 550.01215(3) , Fla. Stat .

69 . Based on the foregoing, the undersigned concludes

that, by declaring the race to be official, the Division

represented to Hamilton Downs that the race would be counted

among those required under the terms of its permit, a

representation of material fact that is contrary to the

DivisionÓs position in this proceeding.

70 . The fact that the D ivisionÓs action foreclosed an

available and effective remedy for any alleged non - compliance , 6 /

a remedy that was suggested by Hamilton Downs and which Hamilton

Downs was prepared to request, meets the substance and intent of

the requirements established in Council Brothers and the cases

cited therein, i.e., that Hamilton Downs rel ied on the

Divis ionÓs representation, i.e., that the race was Ðofficial,Ñ

and that Hamilton Downs change d its position, i.e. , forfeited

its ability to seek a Ðminor change,Ñ in reliance thereon.

71 . Hamilton Downs de monstrate d th at the affirmative

conduct of the Distric tÓs representative went beyond mere

negligence, and that the foreclosure of the statutory remedy

would cause serious injustice . Furthermore, the D ivision has

continued to license performances at Hamilton Downs subsequent

to the events at issue , offering s upport to the conclusion that

the application of estoppel will not unduly harm the public

interest.

72 . Based on the foregoing, the undersigned concludes that

the Division is es t opped from maintaining an action against

Hamilton Downs based on the allegat ion that , as a result of the

coupled entry race, Hamilton Downs failed to operate all

performances at the date and time specified on its license.

Conclusion

73 . As set forth in the Findings of Fact herein, the

Division failed to prove by clear and convin cing evidence that,

during the Hamilton Downs 2014 permitted meet, Hamilton Downs

failed to operate all performances at the date and time

specified on its license . Thus, the allegation in Count One o f

the Amended Administrative Complaint that Hamilton Dow ns

violated section 550.0121 5(3) w as not sustained and must be

dismissed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is RECOMMENDED that a final order be entered

dismissing the Amended Administrative Complaint .

D ONE AND ENT ERED this 26th day of May , 201 6 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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

t his 26th day of May , 2016 .

ENDNOTES

1 / Only a single section of chapter 550, section 550.2415

dealing w ith medication of racing animals and prohibited

substances, has been amended since 2013.

2 / Despite the conclusion reached herein, the undersigned fully

agrees with Mr. Haskell, who ex pressed amazement that the

June 18 through 22, 2014 , performances cou ld be construed as

horse racing. Indeed, the videos of the events in PetitionerÓs

Exhibit 5 must be viewed in order to capture the flavor of the

event. This case has been decided on the failure of the

Division to prove, by clear and convincing evidence, that a

standard applicable to quarter horse racing was violated. In

all likelihood, the Division probably believed it to be

unnecessary to establish a ÐstandardÑ that would define a ÐraceÑ

as something other than horses ambling slowly down a crude dirt

pa th through a field. While the ÐracesÑ in this case violated

no established standard for the conduct of a contest between

horses, the video establishes that the ÐracesÑ occurring on

June 18 through 22, 2014 were more evocative of an Our Gang

comedy short t han the undercard at Pimlico.

3 / Section 550.002(28) defines Ðquarter horseÑ as Ða breed of

horse developed in the western United States which is capable of

high speed for a short distance and used in quarter horse racing

registered with the American Qu arter Horse Association.Ñ While

the horses entered in the Hamilton Downs race meet may have been

bred for speed, they exhibited little of their breeding during

the meet.

4 / The stewardÓs report for the race indicates that the rider of

horse No. 1, Danci n Blue Ghost, fell off, and the horse did not

finish the race.

5 / It should also be noted that the issue of estoppel was

identified in the Joint Prehearing Stipulation in the section

entitled ÐStatement of the Nature of the Controversy,Ñ and was

discuss ed in greater detail in Hamilton DownsÓ statement of

position. As a rule,

any previous skirmishes or dust - ups or

contentious pretrial issues become mostly

irrelevant once the parties prepare and

stipulate as to the final agreed - upon

Ð executive summary Ñ as to what the impending

trial is about and the specific issues that

remain on the table. The Pretrial

Stipulation is surely one of the most

coveted and effective pretrial devices

enjoyed by the trial court and all involved

parties . . . . Ð Pretrial stip ulations

prescribing the issues on which a case is to

be tried are binding upon the parties and

the court, and should be strictly enforced. Ñ

(citations omitted).

Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc. ,

174 So. 3d 1037, 1038 - 1039 (Fla. 4 th DCA 2015).

6 / As indicated herein, the Division did not establish, and its

rules do not support a conclusion that a coupled entry race is

subject to invalidation.

COPIES FURNISHED :

Richard Earl Gentry, Esquire

2305 Braeburn Circle

Tallahassee, Florida 32309

(eServed)

Seann M. Frazier, Esquire

Marc Ito, Esquire

Parker, Hudson, Rainer and Dobbs, LLP

215 South Monroe Street , Suite 750

Tallahassee, Florida 32301

(eServed)

Caitlin R. Mawn, Esquire

Thomas J. Izzo, Esquire

Department of Business a nd

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

(eServed)

Jonathan Zachem, Director

Division of Pari - Mutuel

Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 40

Tall ahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32309

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties ha ve 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.