FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from a Final Order of the Department of Business and
Professional Regulation, Division of Pari-Mutuel Wagering.
M. Frazier and Marc Ito of Parker, Hudson, Rainer &
Dobbs, LLP, Tallahassee, for Appellant.
L. Maine, General Counsel, Dwight O. Slater, Chief Appellate
Counsel, and Chevonne T. Christian, Assistant General
Counsel, Tallahassee, for Appellee.
Downs Horsetrack, LLC ("Hamilton Downs"), appeals a
final order by the Florida Department of Business and
Professional Regulation, Division of Pari-Mutuel Wagering
("the Division"), rejecting certain factual
findings and legal conclusions made by an administrative law
judge ("the ALJ") following a formal hearing.
Because the ALJ properly concluded that a violation did not
occur as alleged in the administrative complaint, and because
the Division should be estopped from prosecuting Hamilton
Downs even if it did, we reverse.
Downs is a relatively new horse racing establishment located
in rural Hamilton County, just south of the Florida-Georgia
line. Glenn Richards is owner and managing member of Hamilton
Downs. Richards has ambitious plans to turn Hamilton Downs
into a first-class pari-mutuel facility complete with a
cardroom, slot machines, an oval race track, starting gates,
and grandstands. For now, however, Hamilton Downs exists as
an L-shaped dirt track approximately 110 yards in length, in
an open field, with a shed for betting, a covered box on
stilts, and a barn.
Downs holds a pari-mutuel permit to conduct quarter horse
races. On March 15, 2013, the Division issued an Operating
Day License ("the operating license"), authorizing
Hamilton Downs to conduct quarter horse barrel match racing
as in years past. The operating license set forth Hamilton
Downs' 2014 racing schedule, which consisted of twenty
quarter horse performances over a four-day period in
mid-June, at a rate of four performances per day, with each
performance consisting of eight individual races, for a total
of 160 races.
Approximately six months before the 2014 meet was set to
occur, the rule authorizing barrel match racing was declared
invalid as an unadopted rule. See Fla. Quarter Horse
Track Ass'n v. Dep't of Bus. & Prof'l
Reg., 133 So.3d 1118 (Fla. 1st DCA 2014). The Division
advised Richards that Hamilton Downs would not be permitted
to conduct barrel match racing as in years past, but that it
could conduct "flag-drop" racing instead. According
to Richards, he asked for information on the applicable
rules, but the Division advised him there were no rules
governing flag-drop racing.
weeks before the 2014 meet was scheduled to occur, a second
unforeseen circumstance arose. The organization on which
Hamilton Downs relied for its horses and riders pulled out of
the event. Resolving that the show must go on, Richards made
alternative arrangements. He rounded up college students for
riders and an elderly herd of untrained horses as their
racing steeds. The 2014 meet went off on schedule. Each race
consisted of two horses. The ALJ described this scene very
22. The races must be seen to be believed. The 14 events for
which video evidence was received show a series of races
involving -- as a rule --
tired, reluctant, skittish, or disinterested 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 [a] red rag-on-a-stick was waved [starting the
race]. With one exception (performance 2, race 7), the gait
of the "racing" horses ranged between a slow walk
and a canter. Horses often simply stood at the starting line
before slowly plodding down the track. In one instance, a
horse actually backed up, until a bystander took it by the
lead, thereafter giving the horse a congratulatory slap on
the rump when it began to move in a forward direction.
[Louis] Haskell noted races in which riders fell off of their
horses, or in which a horse left the course. He described
numerous races, aptly, as noncompetitive because one or both
of the 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 an
entry-level campers' horse show held at the conclusion of
a two-week YMCA summer camp.
second race of the meet was a matchup between two horses
owned by the same owner, Amie Peacock. This is what is known
as a coupled entry. Where there is a coupled entry in a
two-horse race, there can be no meaningful betting because a
coupled entry is "considered a single betting interest
for purposes of wagering." Fla. Admin. Code R.
61D-7.001(12). A bet placed on one horse is necessarily a bet
placed on both horses, so every betting patron wins.
this race occurred, a thirty-minute meeting was held between
Richards and race officials to discuss how the race should be
treated. Among those present was Charles Taylor-an
investigative specialist for the Division-whose job it was to
verify compliance with all rules and statutes at racing
events. Also present was Louis Haskell, who, at the time, was
a state steward for the Division. As a state steward, Haskell
supervised compliance ...