17-006850PL Department Of Business And Professional Regulation, Division Of Pari-Mutel Wagering vs. Christos Gatis Status: Closed Recommended Order on Tuesday, May 8, 2018.

Summary: Agency proved by clear and convincing evidence that licensee committed alleged violations. Recommend fine and supension of license until obligation is paid or licensee enters into agreement to repay obligation and complies with agreement for six months.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTEL WAGERING,

Petitioner,

Case No. 17 - 6850PL

vs.

CHRISTOS GATIS,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2017), before

Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the

Division of Administrative Hearings ("DOAH"), on February 12 ,

201 8 , by video teleconference at sites in West Palm Beach and

Tallahassee, Florida.

APPEARANCES

For Petitioner: James A. Lewis, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

For Respondent: C h ristos Gatis, pro se

3602 Southwest Sunset Trace Circle

Palm City , Florida 3 4990

STATEMENT OF THE ISSUES

Whether Respondent violated section s 550. 105( 4 ) and (7) ,

Florida Statutes (2016) , 1/ and Florida Administrative Code

Rule 61D - 2.005 , as applicable, by engaging in the following

conduct, as alleged in the First Amended Administrative

Complaint : (1) assist ing an unlicensed person in working in a

restricted area at a licensed pari - mutuel wagering facility ,

in violation of section 550.105(4) and rule 61 D - 2.005 ;

and ( 2) accumulat ing unpaid obligations directly related to the

sport of pari - mutuel racing , in violation of section 550.105(7);

and , if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On March 29, 2017, Petitioner, Department of Business and

Professional Regulation, Division of Pari - Mutuel Wagering, served

its First Amended Administrative Complaint ("Administrative

Complaint") on Respondent, Christos Gatis , charging him with two

counts of violating statutes and rules governing pari - mutuel

racing.

Respondent disputed the material facts alleged in the

A dministrative C omplaint and timely file d election of rights

forms request ing an administrative hearing. T he case was

forwarded to DOAH for assignment of an ALJ to conduct a hearing

pursuant to s ections 120.569 and 120.57(1). The final hearing

was held on February 12, 2018 .

Petitioner presented the testimony of Jennifer Ganey , Julio

Minaya, and Doreen DeFonzo. Petitioner 's Exhibits 1, 2, 5,

and 6 were admitted into evidence without objection , and o fficial

recognition was taken of the Default and Final Judgment by

Default entered in Case No. COCE - 16 - 019754DIV 54, recorded in the

County Court for The Seventeenth Judicial Circuit in and f or

Broward County, Florida , on December 14, 2016. R espondent

testified on his own behalf. He did not tender any exhibits for

admission into evidence.

Th e one - volume Transcript of the final hearing was filed at

DOAH on April 6, 2018, and the partie s were given ten days in

which to file proposed recommended orders. Petitioner 's Proposed

Recommended Order, which was timely filed on April 16, 2018, was

duly considered in preparing this Recommended Order. Respondent

did not file a proposed recommended order.

FINDINGS OF FACT

I. The Parties and Licensure Status

1. Petitioner is the state agency charged with regulating

pari - mutuel wagering in the state of Florida pursuant to

chapter 550.

2. At all times relevant to this proceeding, Respondent

was the holder of Pari - Mutuel Wagering Individual Occupational

License No. 2005775 - 1021 , which authorizes him to own and train

racing horses in this state pursuant to chapter 550 .

3. At all times relevant to this proceeding , Respondent

trained and raced horses at Gulfstream Park ("Gulfstream") , a

facility operated by a permitholder aut horized to conduct pari -

mutuel wagering in this state pursuant to chapter 550.

II. The Administrative Complaint

4 . At all times relevant t o this proceeding, Respondent was

subject to chapter 550 and applicable rules codified in Florida

Administrative Code Chapter 61D - 2 .

5 . O n or about March 29, 2017, Petitioner served its

Administrative Complaint on Respondent, charging him with two

counts of violating statutes and rules governing pari - mutuel

racing.

6 . C ount I of the Administrative Complaint charges

Respondent with "conspiring with, soliciting, aiding, abetting,

counseling, hiring, or procuring " Salvador Domingo Ramos to work

in a restricted area of Gulfstream on or about July 25, 2016. If

prove d , this conduct would violate section 550.105(4), which

makes it unlawful to tak e part in any way at any pari - mutuel

facility without first having secured an occupational license and

paid the occu pational license fee ; and also would violate rule

61D - 2.005, which , among other things, prohibits a licensee from

conspiring with, aiding, ab etting, counseling , hiring, or

procuring any other person or persons to engage in a violation of

chapter 550.

7 . Count II of the Administrative Complaint charges

Respondent with "accumulating unpaid obligations that directly

relate to the sport of racing at a pari - mutuel facility in

Florida . " If proved, this conduct would violate

section 550.105(7), which , among other things, makes a

sanctionable offense the accumulation of unpaid obligations that

directly relate to the sport of racing being conducted at a pari -

mutuel facility in this state.

III. The Evidence Adduced at Hearing

Count I

8 . On July 25, 2016, Julio Minaya, an investigative

super visor employed by Petitioner, engaged in an inspection of

the "backside" of Gulfstream. Specifically, Minaya and the

investigative team he supervised inspected barn nos. 21, 22,

and 23 at Gulfstream .

9 . The "backside" is a secured area at a pari - mutuel

fac ility that contains the barns and stables, where the racing

horses are housed, and the rac e tracks .

1 0 . O nly person s who hold occupational licenses or who are

otherwise a uthorized are allowed to enter and engage in

activities in the backside, and security officers are hired to

guard the backside and ensure that unauthorized persons do not

enter this area.

11 . As part of the inspection on July 25, 2016, Minaya

requested each person encountered in barn nos. 21, 22, and 23 to

provide his or her occupational license for inspection , in order

to ensure that the person was licensed and that the license was

valid.

12 . During the July 25, 2016, inspection of the backside at

Gulfstream, a member of the Minaya's investigative team

encountered a person in a storage room within barn no. 23. T he

man , who ultimately identified himself as Salvadore Domingo

Ramos, told Minay a that he did not have his license with him. At

that point, Minaya informed Ramos that he would have to leave the

backside. As Minaya escort ed him out of the backside, Ramos told

Minaya that he worked for Respondent, that he did not have "any

papers," and that he was just trying to work. Minaya interpreted

Ramos' s comments to mean that he (Ramos) was an undocument ed

immigrant, so would not have a valid occupational license.

13 . Minaya then contact ed Responden t, who told him that

Ramos had been working for him, exercising his horses, for

approximately a month and a half . Respondent told Minaya that he

did not know that Ramos was unlicensed, but that had seen Ramos

exercising other trainers' horses , so assumed Ram os was licensed.

1 4 . At the final hearing, Respondent testified that Ramos

had worked for him, for compensation, as an exerciser for the

horses Respondent trained . Respondent further testified that he

knew that unlicensed persons could not be hired to work i n any

capacity in the backside, and he acknowledged that he did no t ask

Ramos for his license before he hired him to exercise his horses.

However, he noted that persons who go into the backside must pass

through a security check at which they must sh ow their license to

gain entry. Because Respondent had seen Ramos on numerous

occasions in the backside exercising other trainers' horses, he

assumed that Ramos was licensed .

1 5 . The evidence, consisting of testimony by Petitioner's

licensing administ rator and supporting documentation from

Petitioner's licensing computer database, confirm ed that Ramos

did not hold an occupational license on July 25, 2016 , and had

never held such a license .

Count II

16 . Finish Line Feed , Inc. ("Finish Line") , is a business

that sells animal food products. Ninety percent of its business

is selling equestrian hand grain in Florida to race track

facilities and to individuals who train and race horses at race

tracks in Florida that hold pari - mutuel events .

17. Doreen DeFonzono, office manager at Finish Line, is

responsible for keeping records of all sales transactions for

Finish Line.

18. DeFonzo no testified , and provided copies of customer

account statements showing , that Respondent was a customer of

Fin ish Line and that he purchased equestrian food products from

F inish Line over a period of time . DeFonzo no testified,

credibly, that the food Respondent purchased was delivered to him

at a pari - mutuel facility in Florida.

19. The evidence shows that Respondent often was arrears in

paying his account balance with Finish Line, but that he

periodically would pay part of the outstanding balance.

20 . The customer account statements show on November 30,

2015 , Respondent paid $500 .00 toward his outstanding account

balance. After this payment, Respondent's outstanding balance

was $12,915.91. Thereafter, Respondent did not make any further

payments toward his customer account balance. Finance charges on

the outstanding balance accrue d monthly, so that b y July 31,

2016, Respondent's outstanding account balance was $13, 986.06.

21 . Thereafter, Finish Line filed suit against Respondent

to recover the amount Respondent owed. The court entered a

Default and Final Judgment by Default ("Default Judgment")

against Respondent in Case No. COCE - 16 - 019754DIV 54, ordering

Respondent to pay a total of $15,458.14 to Finish Line for the

outstanding principal b alance of $13,986.06, plus filing, process

service, and attorney fees. The Default Jud gment was recorded in

the Broward County public records on December 14, 2016.

22 . DeFonzo no credibly testified that to date, Respondent

still owes Finish Line the amount of the Default Judgment , plus

accrued interest, and that Finish Line and Respondent have not

d iscussed or entered into any repayment agreements regarding the

amount Respondent owes Finish Line.

23 . Respondent does not dispute that he did not fully pay

off his balance with Finish Line or that a Default Judgment was

entered aga inst him.

24 . He testified that he had been a customer of Finish Line

from 2004 to 2015. His credible testimony, supported by the

customer account statements, showed that he made periodic

payments in an effort to reduce his outst anding balance. He

te stified, credibly, that he fell on bad financial times, and

that a number of unfortunate events and circumstances ÏÏ including

having an accident , breaking his hip , losing his driver's

license, becoming unemployed, and being unable to pay workers'

compensation insurance for any employees he may hire ÏÏ rendered

him unable to revive his horse training and racing business , so

that he was, and remains, unable to pay the amount he owes Finish

Line .

25 . Respondent currently is unemployed and does not t ra in

or race horses at Gulfstream or any other pari - mutuel facility.

Findings Regarding Alleged Violations

26 . Based on the foregoing, Petitioner has shown, by clear

and convincing evidence, that Respondent hired an unlicensed

person to work for him in a restricted area of Gulfstream on or

about July 25, 2016. This conduct violate s section 550.105(4),

which makes it unlawful to tak e part in any way at any pari -

mutuel facility without first having secured an occupational

license and paid the occu patio nal license fee. This conduct also

violate s rule 61D - 2.005, which, among other things, prohibits a

licensee from hiring any other person to engage in a violation of

chapter 550.

27 . Based on the foregoing, Petitioner has shown, by clear

and convincing evidence, that Respondent accumulat ed unpaid

obligations that directly relate to the sport of racing at a

pari - mutuel facility in Florida. T his conduct v iolate s

section 550.105(7), whi ch, among other things, makes a

sanctionable offense the accumulation of unpaid obligations that

directly relate to the sport of racing being conducted at a pari -

mutuel facility in this state.

Aggravating or Mitigating Circumstances

28 . There was no evide nce presented showing that Respondent

previously violated any laws or rules regarding pari - mutuel

wagering or pari - mutuel wagering facilities in Florida.

29 . Additionally, the evidence shows that Respondent did

not knowingly or willfully hire an unlicensed person. As

Respondent persuasively testified, he had seen Ramos on the

premises in the backside of Gulfstream working for other

trainers, so assumed that he was licensed. Respondent did not

know Ramos was unlicensed when he hired him.

30 . The evidence further shows th at due, at least in part,

to a series of significant, unfortunate events and setbacks ,

Respondent is unemployed, so is not in a financial position to

p urchase the insurance necessary for him to be able to restart

his horse t raining business. These hardships have rendered

Respondent unable to pay Finish Line the balance owed pursuant to

the Default Judgment.

31 . The evidence does not show that Respondent is, or has

been, financially able to pay Finish Line the balance he owe s but

has simply chosen not to do so. 2/

32 . The evidence also d oes not show that Respondent bought

products from Finish Line , intending not to pay for them or

knowing that he was not going to pay for them.

CONCLUSIONS OF LAW

33. DOAH has jurisdiction over the parties to, and the

subject matter of , this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

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

discipline upon a license is penal. State ex rel. V ining v. Fla.

Real Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973). Therefore,

Petitioner must prove the charges against Respondent by clear and

convincing 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)). The Supreme Court of

Florida has described this standard of proof as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible; the

facts to which the witnesse s 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 belie f 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 Slomowitz v.

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

35 . Section 550. 105(4) states : "[i] t i s unlawful to take

part in or officiate in any way at any pari - mutuel facility

without first having secured a license and paid the occupational

license fee. "

36 . Section 550.10 5 (7) states in pertinent part: "[t] he

division may deny, revoke, or suspend any occupational license if

the applicant therefor or holder thereof accumulates unpaid

obligations or defaults in obligations . . . if such unpaid

obligations [or] defaults . . . directly relate to the sport of

jai alai or racing being conducted at a pari - mutuel facility

within this state. "

37 . Rule 61D - 2.005 states: "[n]o person shall conspire

with, solicit, aid, abet, counsel, hire, or procure any other

person or persons to engage in a violation of [c]hapter 550,

Florida Statutes, or the rules promulga ted thereunder, nor shall

he/she commit any such act on his/her own."

38 . For the reasons addressed above, it is concluded that

Petitioner has prove d , by clear and convincing evidence, that

Respondent violated section s 550.105(4) and 550.105(7) and

rule 61D - 2.005.

Penalt y

39 . Section 550.0251(10) authorizes Petitioner to impose an

administrative fine for a violation of chapter 550 of not more

than $1,000.00 for e ach separate count or offense, and to suspend

or revoke an occupational license for a violation of chapter 550.

40 . Petitioner has adopted r ule 61D - 2.021, which enumerates

circumstances that may be considered for the purposes of

mitigation or aggravation of any penalty . The rule states:

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 public 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 practiced.

(6) The deterrent effect of the penalty

imposed.

(7) Any efforts at rehabilitation.

(8) Any other mitigating or aggravating

circumstances.

41 . Here, Petitioner did not present evidence establishing

that, as a result of Respondent's violation of section 550.105(4)

and rule 61D - 2.005 , the integrity of the pari - mutuel industry was

impacted; the public or racing animals were in danger; Respondent

committed repeated offenses of each violation; Respondent

previously had been disciplined as the result of complaints

having been filed against him; or that Respondent willfully or

knowingly violated section 550.105(4) a nd rule 61D - 2.005. As

previously found , although Respondent did not request to see

Ramos' occupational license when he hired him , he nonetheless had

a colorable reason for believi ng that Ramos was licensed ÏÏ

specifically, that he had seen Ramos in the backside of

Gulfstream on numerous occasions working with other trainers'

horses . Collectively, t hese factors militate against imposing a

substantial fine on Respondent for violating section 550.105(4)

and rule 61D - 2.005.

Fine

42 . Petitioner seeks to impose a $200.00 fine on Respondent

to be paid in full over a six - month period.

43 . C onsidering Respondent's minor culpability in violating

section 550.105(4) and rule 61D - 2.005, and given his current

financial hardship and consequent inability to pay a significant

fine, the undersigned recommends imposing a fine of $100.00 for

these violations, to be paid in full over a six - month period .

This recommendation takes into consideration Respondent's current

extreme financial hardship , which he is suffering due to no

demonstrated fault of his own . The undersigned is concerned that

imposing a fine that Respondent cannot pay may subject him to

further disciplinary sanctions in the future ÏÏ not for engaging in

additional conduct that violates chapter 550, but , instead , for

being unable to pay a fine imposed for a relatively minor

violation . Given that Respondent has no prior d isciplinary

history and had only minor culpability when he unknowingly hired

an unlicensed person, the undersigned is of the view that a fine

of $100.00 is reasonable. While this amount may seem so minimal

that it would not constitute a deterrent to futur e violations, it

is , in fact, a significant amount of money to a person who is

unemployed and is suffering extreme financial hardship. 3 /

Further, imposing a fine that Respondent may be better able to

pay increases the likelihood that Petitioner will secur e p ayment

of that fine from Respondent .

License Suspension

44 . Petitioner also seeks to suspend Respondent's

occupational license pursuant to section 550.105(7) .

45 . The plain language of section 550.105(7) makes the

accumulation by a licensee of unpaid obligations or defaults in

obligations a violation for purposes of imposing discipline. The

failure to pay an obligation in violation of section 550.105(7)

is a continuing offense that is not completed until the

obligation is paid . See Haupt v. St ate , 499 So. 2d 16, 17 (Fla.

2d DCA 1 986)( distinguishing separate offenses from a continuing

offense for purposes of imposition of a penalty) . In Dep artment

of Bus iness and Prof essional Reg ulation v. Johnson , Case No. 01 -

0603 (Fla. DOAH May 1, 2001; Fla. DBPR May 30, 2001) , the ALJ

noted that "[s]ection 550.105(7), Florida Statutes, imposes no

limit on the length of suspensions that may be imposed upon

licensees who do not satisfy their pari - mutual racing - related

"obligations." Accordingly, the license of such a licensee may

be suspended indefinitely until such time as the licensee's

obligation is satisfied. "

4 6 . Here, Petitioner seeks a on e - year suspension of

Respondent's license , with an "'option' enabling [Petitioner] 4 / to

reinstate his license if he satisfie s the default judgment

enter ed against him or enters into an arrangement with Finish

Line Feed providing for the remittance of his unpaid obligations

and remains in compliance with same."

4 7 . The undersigned interprets this language, which is in

paragraph 36 of Petitioner's Proposed Recommended Order, to mean

that Petitioner is requesting that Respondent's license be

suspended for a period of one year, but that if, within this

one - year suspension period, Respondent either repays Finish Line

in full or enters into an arrangement with Finish Line to pay off

the debt and remains compliant with that arrangement , that

Petitioner has the "option" ÏÏ that is, Petitioner may , but i s not

required ÏÏ to lift the suspension during this one - year period .

Thus, even if Respondent were to pay off his obligation in full

or enter into an arrangement to do so and remain compliant with

that arrangement , Petitioner still could, at its discretion,

suspen d his license for up to one year.

4 8 . In support of its proposed suspension , Petitioner cites

several administrative cases brought under section 550.105(7), or

its precursor, section 550.105(6). M ost of those cases are

factually distinguishable from this case and imposed penalties

that, under the circumstances of those cases , were substantially

less stringent than the penalty Petitioner seeks to impose in

this case.

4 9. I n Department of Business and Professional Regulation

v. Sacco , Case No. 96 - 5522 (Fla. DOAH June 11, 1997; Fla. D B PR

Aug. 3, 1997), Sacco, the holder of an occupational license,

purchased a thoroughbred race horse but did not pay Slavin, the

owner, for the horse. He also borrowed another horse from

Slavin, sold that horse without obtaining Slavin's permission,

and did n ot pay Slavin for th e horse. Effectively, Sacco

converted ÏÏ i.e., stole ÏÏ the horses from Slavin. Slavin

ultimately obtained a court judgment against Sacco for the value

of the horses. Thereafter, the Department of Business and

Professional Regulation ("DBPR") took disciplinary action against

Sacco for violating section 550.105(6). While the disciplinary

action was pending, Respondent's occupational license expired and

was not renewed. In determining that Respondent should be

disciplined for violating section 550.105(6), the ALJ

recommended, and D B PR imposed, "indefinite ineligibility for

licensure" until the outstanding debt to the owner was paid .

50. In Sacco , not only did the then - licensee engage in

dishonest conduct by effectively stealing two h orses from Slavin,

but he also made no apparent effort to pay the debt, took no

responsibility at the final hearing for his conduct, and advanced

tortured arguments at the hearing in an effort to avoid

discipline. Although Sacco remained ineligible for oc cupational

licensure for as long as he owed an unpaid debt (of an amount

unspecified in the Recommended Order), he apparently was eligible

for re - licensure as soon as he repaid the debt.

51. By contrast, here, Respondent's behavior is

substantially less culpable. Respondent did mak e effort to pay

off his debt to Finish Line before events and circumstances

rendered him unemployed and, thus, incapable of paying the

debt. Respondent remains unemployed at this time, so has not

entered into an agreement or made any arrangements with Finish

Line to repay the debt. At the final hearing, Respondent

acknowledged the debt, did not attempt to avoid responsibility,

and offered a credible and sympathetic explanation as to why he

had not paid off the debt.

52 . In Department of Business and Professional Regulation

v. Inserra , Case No. 07 - 5686 (Fla. DOAH Apr. 9 , 2008; Fla. DBPR

May 19, 2008), Inserra, an occupational license holder, entered

into an oral contract with Posco, under which Inserra agreed to

sell four thoroughbred horses to Posco to be used in pari - mutuel

racing for $36,750.00. Posco paid the money to Inserra for the

horses. However, Inserra produced only one of the horses ÏÏ and

then without its registration papers ÏÏ so Posco had to pay

$3,436.00 t o register the horse, which was never able to

race. Subsequently, Inserra and Posco entered into a written

agreement under which Inserra would repay Posco a total sum of

$40,186 .00 for the three horses not produced, the horse unable to

race, and the cost of the registration papers for the horse

unable to race. Inserra failed to pay Posco the amount owed

under the written agreement, so Posco filed suit and obtained a

judgment against Inserra in the amount of $42,075.78. T hereafter,

DBPR took disciplinary a ction against Inserra for violating

section 550.105(7). The ALJ recommended, and DBPR imposed, a

suspension of Inserra's license "for a period of not less than

ten days and continuing until Mr. Inserra provides satisfactory

proof that he satisfied his fin ancial obligation to Kenneth Posco

as ordered in the Judgment." Although the length of the

suspension was "indefinite" in the sense that it continued for as

long as Inserra failed to pay Posco, it could have been as short

as only ten days if Inserra paid Posco and provided satisfactory

proof of payment within that ten - day period.

53 . Like Sacco , Inserra involved repeated, egregious

culpable behavior on the part of the licensee, who apparently had

made no effort to repay the amount he owed Posco. B y contrast,

in this case, Respondent was making some effort to pay down his

obligation to Finish Line until he became unable to do so through

a series of events and circumstances that have rendered him

unemployed, and, thus, incapable of repaying Finish

Li ne. Putting aside ÏÏ for now ÏÏ the point that imposing a

suspension of any length once a licensee has paid its obligations

or defaults in obligation is contrary to the plain language of

section 550.105(7), which authorizes suspension for unpaid

obligations or defaults in obligations, Inserra's license could

have been suspended for as little as 10 days , notwithstanding

that he engaged in substantially more culpable conduct than that

in which Respondent engaged in this proceeding .

54 . Department of Business and Professional Regulation v.

Garey , Case No. 98 - 4566 (Fla. DOAH Mar. 9, 1999; Fla. D B PR

Apr. 29, 1999), also involved culpable behavior on the part of

the licensee. In that case, Garey, a holder of a pari - mutuel

wagering license, cashed several checks at Calder Race Course

("Calder") over an approximately two - month period of time,

knowing the checks to be worthless because they were drawn on a

bank account that had previously been closed. Garey eventually

did repay Calder the amo unt he owed. Nonetheless , DBPR took

disciplinary action against Garey, requesting that his license be

suspended for 30 days. The ALJ determined that "[s]uch penalty

is within the range of permissible penalties, and consequently,

is accepted." DBPR impos ed the 30 - day penalty in its F inal

O rder.

55 . Again p utting aside the point that imposing a

suspension of any length once a licensee has paid its obligations

is contrary to the plain language of section 550.105(7), Garey's

license was suspended for only 30 days , notwithstanding that he

willfully and repeatedly engaged in conduct far more culpable

than that in which Respondent engaged in this proceeding. T he

evidence showed that Garey knew , each time he presented checks to

C alder for payment, that the checks would not be honored . Thus,

Garey's conduct was willful, dishonest, and tantamount to theft.

56 . By contrast, here, the evidence does not show that

Respondent purchased products from Finish Line knowing that he

was not going to pay for them . Further, the evidence shows that

Respondent made ongoing eff orts to pay down that debt, until he

was no longer able to do so. Although the amount of Garey's debt

was substantially less than the amount of Respondent's debt in

this proceeding , Garey's co nduct in incurring that debt was far

more blameworthy than was Respondent's.

57 . Based on the foregoing, the undersigned concludes that

it is reasonable to impose a penalty that is less stringent than

th e penalties imposed in Sacco , Inserra , and Garey .

58 . Accordingly, the undersigned recommends that

Respondent's license be suspended until such time as either :

(1) Respondent has re paid his debt to Finish Line in full, or

(2) Respondent has entered into an agreement with Finish Line to

repay his debt and has been in compliance with that agreement for

a period of six months .

59 . Under the first alternative , the suspension of

Respondent's license would be lifted and his license reinstated

by Petitioner at such time as he demonstrat e s to Petitioner that

his debt to Finish Line has been paid in full. Under this

alternative , Petitioner would be required to reinstate

Respondent's license at the time Respondent demonstrates that

he has paid his debt in full . In other words, Petitioner wou ld

not have the discretion to continue the s uspension of

Respondent's license once he has shown that he has paid his debt

in full. This alternative comports with the plain language of

section 550.105(7), which authorizes suspension of an

occupational license only for unpaid obligations or defaults in

obligations.

60 . Under the second alternative , the suspension of

Respondent's license would be lifted and his license reinstated

by Petitioner at such time as he demonstrates to Petitioner that

he has entered into an agreement with Finish Line to repay his

debt and has been in compliance with that agreement for six

months . Under this alternative , Petitioner would be required to

reinstate Respondent's licens e at the time Respondent

demonstrates that he entered into an agreement with Finish Line

to repay his debt and has been in compliance with that agreement

for six months . Petitioner would not have the discretion to

continue the suspension of Respondent's license once he has shown

that he has entered into an agreement with Finish Line to repay

his debt and has been in compliance with that agreement for six

months . This alte rnative is consistent with section 550.105(7),

which provides that Petitioner " may " suspend an occupational

license if the holder accumulates unpaid obligations or defaults

in obligations . The statute's use of the word "may" appears to

afford Petitioner the discretion to reinstate Respondent's

license , even when he has not fully paid his debt.

61 . Finally , imposing a shorter suspension period based on

t he conditions set forth above takes into consideration the

financial hardship that Respondent has experienced and currently

is experiencing, and may help him become reemployed in the pari -

mutuel industry more quickly.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat Petitioner, Department of Bu siness

and Professional Regulation, Division of Pari - Mutuel Wagering,

enter a final order finding and concluding that Respondent

violat ed sections 550.105(4) and 550.105(7) , Florida Statutes,

and Florida Administrative Code R ule 61D - 2.005; imposing a fine

of $100 .00 to be paid over a period of six months of the date of

the final order; and suspending Respondent's occupational license

until such time as either: (1) Respondent has repaid his debt to

Finish Line in full , or (2) Respondent has entered into an

agreement with Finish Line to repay his debt and he has been in

compliance with that agreement for a period of six months.

DONE AND ENTERED this 8 th day of May, 2018 , in Tallahassee,

Leon County, Florida.

S

CATHY M. SELLERS

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 8 th day of May, 2018 .

ENDNOTE S

1/ All references to chapter 550 or provisions within that

statute are to the 2016 version, which was in effect at the time

of the alleged violations at issue in this proceeding.

2/ To this point, Respondent credibly testified that he had

purchased products from Finish line from 2004 to 2015. The

evidence, consisting of Respondent's persuasive testimony, as

well as customer account statements from Finish Line, establish

that Respon dent's difficulty in paying Finish Line began in late

2014.

3 / To that point, if Respondent were to commit additional

violations in the future, Petitioner could surmise that imposing

a modest fine of $100.00 was not a deterrent, and could take that

in to account in imposing more stringent fines in the future.

4 / The undersigned assumes that the word "Petitioner," rather

than "Respondent" was intended to be used in this sentence

because Respondent does not possess the power to "reinstate" his

own lic ense; the power to "reinstate" a suspended license rests

with Petitioner, not with a licensee. See § 550.105, Fla. Stat.

COPIES FURNISHED:

Christos Gatis

3602 Southwest Sunset Trace Circle

Palm City, Florida 34990

James A. Lewis, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robert Ehrhardt, Director

Department of Business and Professional Regulation

Division of Pari - Mutuel Wagering

Capital Commerce Center

2601 Blair Stone Road

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.