15-007001PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Patrick M. Havey Status: Closed Recommended Order on Tuesday, May 17, 2016.

Summary: Respondent's actions in printing voucher for a friend without receiving cash or cash equivalent in exchange warranted revocation of pari-mutuel occupational license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Petitioner,

vs. Case No. 15 - 7001PL

PATRICK M. HAVEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge F. Scott Boyd conducted the final

hearing by video tele conference on April 14, 2016 , with sites in

Lauderdale Lakes and Tallahassee, Florida .

APPEARANCES

For Petitioner: Louis Trombetta, Esquire

T homas J. Izzo, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1 940 North Monroe Street, Suite 40

Tallahassee , Florida 3 23 99

For Respondent: Patrick M. Havey , p ro s e

Apartment 9

163 9 Madison Street

Hollywood, F lorida 33 020

STATEMENT OF THE ISSUE S

The issues are whether Respondent issued a voucher ticket

without obtaining cash or cash equivalent in exchange, in

violation of Florida Administrative Code Rule 61D - 7.020(5)(b);

had adjudication withheld on felony charges involving larceny ,

in violation of section 849.086(6)(g), Florida Statutes (2014) ;

or was ejected from Gulfstream Park, in violation of section

550.0251(6), Florida Statutes , as alleged in the Second Amended

Administrative Complaint; and if so, what is the appropriate

sanction. 1/

PRELIMINARY STATEMENT

On October 26, 2015 , the Department of Business and

Professional Regulation, Division of Pari - Mutuel Wagering

(Petitioner or Division) , filed a Second Amended Administrative

Complaint against Mr. Patrick M. Havey (Respondent or

Mr. Havey) . The complaint charged violations o f rules of the

Division and Florida Statutes related to an incident on

April 27, 2014, when it was alleged that Respondent issu ed a

$5 , 000. 00 voucher ticket without obtaining payment for it.

Respondent disputed material facts in the complaint and

requested an administrative hearing . The case was referred to

the Division of Administrative Hearings and , after continuance,

the final hearing was held on April 14, 2016 .

Petitioner presented the testimony of two witnesses :

Mr. Jorge Aparicio , s ecurity d irector of Gulfstream Park ; and

Respondent . Petitioner offered three exhibits , P - 9, P - 10, and

P - 12 , which were admitted into evidence. Respondent testified

on his own behalf and offered no other witnesses or exhibits .

Official recognition was given to records of the Seventeenth

Judicial Circuit Court, in and for Broward County, Florida, a s

well as ap plicable sta t utes a nd rules of the Division.

No t ranscript of the hearing was ordered. Pursuant to

Petitioner ' s request at hearing , April 29, 2016, was set as the

deadline to submit p roposed r ecommended o rders . Both parties

timely submitted post - hearing submissions, which w ere considered

in the preparation of this Recommended Order .

FINDINGS OF FACT

1. The Division is the state agency charged with

regulating pari - mutuel wagering and cardrooms in the s tate of

Florida, pursuant to chapter 550 and section 849.086 .

2. On April 27, 2014, Mr. Havey was licensed by the

Division and was working a t Silks mutuels window number 607 at

Gulfstream Park, a facility authorized to conduct pari - mutuel

wagering and cardroom operations .

3 . A t the end of the day on April 27, 2014 , Mr. Havey ' s

cash drawer did not balance . After a review of surveillance

tapes and other information, Mr. Jorge Aparicio, a security

director with Gulfstream Park, de cided to investigate further.

4 . On May 2, 2014, when Mr. Havey retur ned to work, he was

interviewed by Mr. Aparicio about the missing money. Mr. Havey

initially stated that he accidently printed out a voucher for

$5 , 000.00 for his friend Darren , when he had intended to punch

the voucher for only $500.00. He said that Darren was supposed

to give him the money at the end of the day. Later, Mr. Havey

stated he really printed out the voucher for $5 , 000.00, placed

it in his right shirt pocket, and gave the voucher to his friend

Eddy inside the men ' s restroom for his friend to cash.

5 . Later that day, Mr. Havey prepared a written statement

regarding the money missing from his cash drawer. He wrote:

My friend Eddy needed 500. loan because I

told he was being thriten . I offer to help

Eddy by giving him 500 vocher. E ddy tol d me

he would pay me back in a week. Eddy didn ' t

want to come to my window #607. Eddy asked

me to meet in the bathroom. I punched a

$500 vocher I thought but it ended being a

$ 5 000. vocher. I gave him the vocher &

never saw Eddy again. I planded on br owing

the five hundred from my friend to put $500.

back in my money so I would balance , but [.]

6 . Mr. Aparicio testified that Mr. Havey could not give a

last name or address for his friend and noted that the name of

the friend given by Mr. Havey changed during the course of the

interview. After the interview, Mr. Aparicio called the

p resident of Gulfstream Park and described what had taken place .

He was directed to call the police and to exclude Mr. Havey from

the property indefinitely. As refl ected in the Security Report,

Mr . Havey was " excluded indefinitely " from Gulfstream Park on

May 2, 2014 . This action did not necessarily bar Mr. Havey from

the park permanently, for t he p resident could allow him to

return, but he was excluded unless and u ntil the president took

further action. This "indefinite" exclusion constituted an

ejection from Gulfstream Park.

7 . When Mr. H avey left the investigation room, the

Hallandale Beach Police were there. Mr. Havey testified that

they did not ask him a single question, but immediately placed

him under arrest and handcuffed him.

8 . On August 21, 2014, Mr. Havey entered a plea of nolo

contendere to a charge of g rand t heft in the t hird d egree in

the Seventeenth Judicia l Circuit Court, in and for Broward

County, Florida. Adjudication was withheld . He was placed on

24 month s ' probation, with the condition that he pay Gulfstream

Park $4 , 500.00 in restitution w i thin 18 months.

9. At hearing, Mr. Havey admitted he issued a voucher

ticket without receiving cash or cash equivalent in return. He

also testified that he pled no contest with the understanding

that if he paid $4 , 500 .00 restitution to Gulfstream Park, the

charges would be " disposed of , " and his record would be cl ear.

10 . Clear and convincing evidence shows that on A pril 27,

2014, Mr. Havey issued a voucher ticket without receiving cash

or cash equivalent in return ; that he was ejected from

Gulfstream Park on May 2, 2014 ; and that he pled nolo contendere

to g rand t heft in the t hird d egree on August 21, 2014, with

adjudication withheld .

11 . Mr. Havey testified that he ha s been involved in pari -

mutuel wagering in various parks, in dog racing, and Jai Alai

for 40 years . He stated that the incident was " out of his

character , " that it was drug and alcohol related , and that he

was not thinking clearly. He testified that he could barely

remember what had happened on that " dark day " in his life . He

said that he sought treatment and is now on the way to full

recovery. Mr. Havey expressed remorse for his actions.

12 . Mr. Havey testified that he is now working part time

at Mardi Gras Casino in Hallandale . He has performed well and

has not been in any trouble there. He noted, however, that he

is only making $10 .00 per hour, rather than the $25 .00 per hour

he was making at Gulfstream Park. He lamented that it is

extremely difficult to " keep a roof over your head " on only

$250 .00 a week and that he needed to work for a few more years.

He stated that his wife should shortly be receiving money for a

disability claim and that when she did so, he would pay

Gulfstream Park full restitution . He testified that he hoped

that the p resident of Gulfstream would then let him return. No

evidence of prior discipline was introdu ced.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Statutes (201 5 ).

14 . A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner must therefore prove the charges against

Respondent by clear and con vincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

15 . The clear and convincing standard of proof has been

described by the Florida Supreme Court:

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 established.

In re Davey , 645 So. 2d 398, 4 04 (Fla. 1994)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

16 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be decided by the trier of fact in

the context of each alleged violation. McKinn ey v. Castor , 667

So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653

So. 2d 489, 491 (Fla. 1st DCA 1995).

COUNT 1

17 . Section 550.0251 ( 3 ) require d Petitioner to adopt

reasonable rules for the control, supervision, and direction of

all applicants, permittees, and licensees, and for the holding,

conducting, and operating of all racetracks, race meets, and

races held in this state.

18 . Petitioner adopted r ule 61 D - 7.020 on January 10, 2008 .

Rule 61D - 7.020(5) provide d :

(5)(a) No pari - mutuel tickets shall be sold

except through properly designated

totalisator terminals or via the following

authorized methods:

1. Advanced and future bets;

2. Account betting;

3. Betting utilizing credit vouchers; and

4. Betting utilizing portable terminals.

(b) All ticket sales shall be for cash or

cash equivalent.

1 9. As Respondent admitted at hearing, on April 27, 2014,

he issued a voucher ticket without receiving cash or cash

equivalent in exchange .

20 . Petitioner proved by clear and convincing evidence

that Respondent violated rule 61D - 7.020 (5 )(b) on April 27, 2014 ,

by issuing a ticket voucher without receiving cash or cash

equivalent in exchange .

COUNT 2

21 . Sectio n 849.086(6)(g) provide d :

The division may deny, declare ineligible,

or revoke any cardroom occupational license

if the applicant or holder thereof has been

found guilty or had adjudication withheld in

this state or any other state, or under the

laws of the United States of a felony or

misdemeanor involving forgery, larceny,

extortion, conspiracy to defraud, or filing

false reports to a government agency, racing

or gaming commission or authority.

22 . Respondent proved by clear and convincing evidence

that Respondent had adjudication withheld in Florida for the

t hird d egree f elony of g rand theft , a felony involving larceny,

on August 21, 2014.

COUNT 3

23 . Section 550.0251(6) provide d , in relevant part:

In additi on to the power to exclude certain

persons from any pari - mutuel facility in

this state, the division may exclude any

person from any and all pari - mutuel

facilities in this state for conduct that

would constitute, if the person were a

licensee, a violation of this chapter or the

rules of the division. The division may

exclude from any pari - mutuel facility within

this state any person who has been ejected

from a pari - mutuel facility in this state or

who has been excluded from any pari - mutuel

facility in anot her state by the

governmental department, agency, commission,

or authority exercising regulatory

jurisdiction over pari - mutuel facilities in

such other state.

24 . R espondent was " excluded indefinitely " from Gulfstream

Park on May 2, 2014 . This c onstitut es an ejection within the

meaning of section 550.0251(6).

25 . Petitioner proved by clear and convincing evidence

that Respondent was ejected from a pari - mutuel facility in this

state on May 2, 201 4.

Penalty

26 . Section 550.105(5)(b) provide d , in part , that

Petitioner may deny, suspend, revoke, or declare ineligible any

occupational license if the applicant for or holder thereof has

violated the provisions of this chapter or the rules of the

D ivision governing the conduct of persons connected with

racetracks and frontons.

27 . Section 550.105(5) (e) provide d , in part , that

Petitioner may impose a civil fine of up to $1,000 .00 for each

violation of the rules of the D ivision in addition to or in lieu

of any other penalty provided for in that section.

2 8 . Section 849.086(14)(a) provide d :

The division may deny a license or the

renewal thereof, or may suspend or revoke

any license, when the applicant has:

violated or failed to comply with the

provisions of this section or any rules

adopted pursuant there to; knowingly caused,

aided, abetted, or conspired with another to

cause any person to violate this section or

any rules adopted pursuant thereto; or

obtained a license or permit by fraud,

misrepresentation, or concealment; or if the

holder of such license or permit is no

longer eligible under this section.

2 9. Section 849.086(6)(g) also provided Petitioner

authority to revoke Respondent ' s cardroom occupational license.

30 . Rule 61D - 2.021 , entitled Aggravating and Mitigating

Circumstances , provide d :

Circumstances which may be considered for

the purposes of mitigation or aggravation of

any penalty shall include, but are not

limited to, the following:

(1) The impact of the offense to the

integrity of the pari - mutuel industry.

(2) The danger to the p ublic and/or racing

animals.

(3) The number of repetitions of offenses.

(4) The number of complaints filed against

the licensee or permitholder, which have

resulted in prior discipline.

(5) The length of time the licensee or

permitholder has practice d.

(6) The deterrent effect of the penalty

imposed.

(7) Any efforts at rehabilitation.

(8) Any other mitigating or aggravating

circumstances.

31 . In this case , Respondent ' s actions directly affect ed

the integrity of the pari - mutuel industry . However, there was

no evidence of prior violations , no danger to racing animals,

and Respondent has been licensed for over 4 0 years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED :

T hat the Department of Business and Professional

Regulation, Division of Pari - Mutuel Wagering, enter a final

order : (1) finding that M r . Patrick M. Havey was in violation

of Florida Administrative Code Rule 61D - 7.020(5)(b) , was ejected

from a pari - mutuel facility , and had adjudication withheld on a

felony involving larceny ; and (2) revoking his pari - mutuel

occupational license .

DONE AND ENTERED this 17th day of May , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT B OYD

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 Administrati ve Hearings

this 17th day of May , 2016 .

ENDNOTE

1/ References to statutes and rules in this Recommended Order

are to versions in effect at the time of the alleged violations ,

except as otherwise indicated.

COPIES FURNISHED:

Patrick M. Havey

Apartment 9

1639 Madison Street

Hollywood, Florida 33020

Louis Trombetta, Esquire

Thomas J. Izzo, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

(eServed)

J ason Maine , General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Jonathan Zachem , Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

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.