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CLB Backup 01/15/2020 Teresa L. Cannon From: RamkissoonMichelle <Michelle.Ramkissoon@colliercountyfl.gov> Sent: Thursday, February 20, 2020 5:44 PM To: Minutes and Records Cc: 'Anne lacuzzo'; Flamar2@comcast.net Subject: FW: Email:Hamilton Downs Horsetrack_ LLC v. State_226 So. 3d 1046 (CLB 1/15/2020) Attachments: Hamilton Downs Horsetrack_ LLC v. State_226 So. 3d 1046.pdf Hello All, I believe the attached reference document was submitted for the Case "2019-08- Misconduct-Thomas R.Williams- Williams Magical Garden And Landscape"for CLB Meeting 1/15/2020. Thanks, Michelle Michelle Ramkissoon Supervisor—Operations C.po e>r COMIty Growth Management Department Operations&Regulatory Management Division Exceeding Expectations,Every Day! 2800 North Horseshoe Drive,Naples Florida 34104 Phone:239.252.2418 Fax: 239-252-2469 V CALLER CORM Maliffitiry From:OssorioMichael<Michael.Ossorio@colliercountyfl.gov> Sent:Thursday, February 20, 2020 3:11 PM To: RamkissoonMichelle<Michelle.Ramkissoon@colliercountyfl.gov> Subject: FW: Email:Hamilton Downs Horsetrack_LLC v. State_226 So. 3d 1046 From: NoellKevin <Kevin.Noell@colliercountyfl.gov> Sent:Thursday, February 20, 2020 3:10 PM To: OssorioMichael<Michael.Ossorio@colliercountyfl.gov> Subject: FW: Email:Hamilton Downs Horsetrack_LLC v. State_226 So. 3d 1046 1 Kevin L. Noell Assistant County Attorney Collier County Attorney's Office 239.252.8424 From: LexisNexisDelivery@lexisnexis.com <LexisNexisDelivery@lexisnexis.com> Sent:Thursday, February 20, 2020 3:07 PM To: NoellKevin <Kevin.Noell@colliercountvfl.gov> Subject: Email:Hamilton Downs Horsetrack_LLC v. State_226 So. 3d 1046 EXTERNAL EMAIL This email is from an external source. Confirm this is a trusted sender and use extreme caution when opening attachments or clicking links. Delivery About LexisNexis Privacy Policy Terms&Conditions Copyright©2020 LexisNexis. *This is an automated email.Please do not reply to this email address. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. 2 LexisNexis° User Name: Kevin Noell Date and Time: Thursday, February 20, 2020 3:07:00 PM EST Job Number: 110578765 Document (1) 1. Hamilton Downs Horsetrack, LLC v. State, 226 So. 3d 1046 Client/Matter: -None- Search Terms: Hamilton Downs Search Type: Natural Language Narrowed by: Content Type Narrowed by US Cases Court: State Courts> Florida fig LexisNexis'I About LexisNexis I Privacy Policy I Terms&Conditions I Copyright©2020 LexisNexis Kevin Noell 0 Cited As of: February 20,2020 8:07 PM Z Hamilton Downs Horsetrack, LLC v. State Court of Appeal of Florida, First District September 5, 2017, Opinion Filed CASE NO. 1D16-3876 Reporter 226 So.3d 1046*;2017 Fla.App. LEXIS 12714**;42 Fla.L.Weekly D 1940;2017 WL 3864050 whether the licensee committed the alleged violation, the doctrine of equitable estoppel precluded prosecution of the licensee where the owner made every effort to satisfy race officials and ensure compliance with state HAMILTON DOWNS HORSETRACK, LLC, Appellant, law, the race was declared official, and it was not until v. STATE OF FLORIDA, DEPARTMENT OF months later, that the Division changed its position. BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,Appellee. Prior History: [**1]An appeal from a Final Order of the Outcome Department of Business and Professional Regulation, Order reversed. Division of Pari-Mutuel Wagering. LexisNexis® Headnotes Core Terms horses, racing, estoppel, pari-mutuel, betting, conclusions of law, license, modify, no rule, contest, coupled Business&Corporate Compliance> ... >Governments > Local Governments> Gaming & Lotteries Case Summary HN1[+] Licensing, Gaming &Lotteries A coupled entry is considered a single betting interest Overview for purposes of wagering. Fla. Admin. Code R. 61D- HOLDINGS: [1]-The Department of Business and 7.001(12). A bet placed on one horse is necessarily a Professional Regulation, Division of Pari-Mutuel bet placed on both horses, so every betting patron wins. Wagering erred in finding that a horse race track and its owner violated 550.01215(3), Fla. Stat., for failing to make 20 performances between certain dates at a rate Business&Corporate of four performances per day under 550.002(25), Fla. Compliance> ... > Governments > Local Stat. and Fla. Admin. Code. R. 61D-2.001(15) where, Governments> Gaming & Lotteries while the second race—a coupled entry race—might not have constituted a pari-mutuel race, it satisfied the HN2[ ] Licensing, Gaming &Lotteries definition of a "race" for purposes of determining Kevin Noell Page 2 of 8 226 So. 3d 1046, *1046; 2017 Fla.App. LEXIS 12714, **1 In a horse-racing context,where a no contest is called, it is possible for a licensee to obtain a replacement race by requesting from the Department of Business and Evidence > ... > Procedural Matters> Preliminary Professional Regulation, Division of Pari-Mutuel Questions> Credibility&Weight of Evidence Wagering an amendment to the racing schedule. HN6[j] Preliminary Questions, Credibility &Weight of Evidence Business&Corporate Credibility of the witnesses is a matter that is within the Compliance > ... >Governments > Local province of an administrative law judge, as is the weight Governments>Gaming & Lotteries to be given the evidence. HN30.] Licensing, Gaming &Lotteries Section 550.01215(3), Fla. Stat., requires each Evidence > ... > Procedural Matters> Preliminary permitholder to operate all performances at the date and Questions> Credibility&Weight of Evidence time specified on its license. HN7[.t] Preliminary Questions, Credibility &Weight of Evidence Administrative Law>Agency An administrative law judge is entitled to rely on the Adjudication > Decisions>Contents testimony of a single witness even if that testimony contradicts the testimony of a number of other Evidence >Weight& Sufficiency witnesses. Administrative Law>Agency Adjudication > Review of Initial Decisions Administrative Law>Agency HN4[A] Decisions, Contents Adjudication > Decisions> Contents Section 120.57(1)(1), Fla. Stat., provides that an agency Administrative Law>Agency Adjudication > Review may not reject or modify an administrative law judge's of Initial Decisions findings of fact unless the agency first determines from a review of the entire record that the findings of fact HAM* Decisions, Contents were not based upon competent, substantial evidence or that the proceedings on which the findings were An agency may reject or modify the conclusions of law based did not comply with the essential requirements of over which it has substantive jurisdiction. § ?2'.1.57(71i). law. Fla. Stat. When doing so, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law and must make a finding that its substituted conclusion of law is as or more reasonable Administrative Law>Agency than that which was rejected or modified. Adjudication > Decisions> Contents Evidence>Weight& Sufficiency Administrative Law>Judicial Review> Standards Administrative Law>Agency Adjudication > Review of Review> Clearly Erroneous Standard of Review of Initial Decisions Administrative Law>Judicial Review> Standards HN5[i] Decisions, Contents of Review> De Novo Standard of Review When competent substantial evidence in the record Administrative Law>Judicial supports an administrative law judge's findings of fact, Review> Reviewability>Questions of Law an agency may not reject them, modify them, substitute its findings, or make new findings. Administrative Law>Judicial Review> Standards Kevin Noell Page 3 of 8 226 So. 3d 1046, *1046; 2017 Fla.App. LEXIS 12714, **1 of Review> Deference to Agency Statutory Contracts Law> ... >Affirmative Interpretation Defenses> Estoppel > Equitable Estoppel HN9[t] Standards of Review, Clearly Erroneous HN13[±] Estoppel, Equitable Estoppel Standard of Review Generally, estoppel may only be applied in cases of An appellate court reviews an agency's conclusions of misrepresentations of fact, not misstatements of law. law de novo and will defer to the agency's conclusions of law unless they are clearly erroneous or contrary to law. In doing so, the court must give great deference to Contracts Law> ... >Affirmative the agency's interpretation of the statutory policy it is to Defenses > Estoppel > Equitable Estoppel administer and be moved to intervene only by clearly erroneous interpretations of the statute. Governments> Local Governments> Claims By& Against Business&Corporate Governments> Legislation > Statute of Compliance> ... > Governments > Local Limitations> Equitable Estoppel Governments> Gaming & Lotteries Governments > State&Territorial HN10[k] Licensing, Gaming & Lotteries Governments> Claims By&Against "Performance" means a series of events, races, or HN14[�] Estoppel, Equitable Estoppel games performed consecutively under a single admission charge." $ 550.002(25), Fla. Stat. Equitable estoppel will apply against a governmental entity only in rare instances and under exceptional circumstances. Business&Corporate Compliance> ... >Governments > Local Governments > Gaming & Lotteries Contracts Law> ... >Affirmative Defenses> Estoppel > Equitable Estoppel HN101] Licensing, Gaming &Lotteries Governments> Local Governments > Claims By& "Race"is defined as a contest for purse, stakes, or entry Against fees, on an approved course, and in the presence of duly appointed racing officials. Fla. Admin. Code Ann. Governments> State&Territorial R. 61 D-2.001(15). Governments> Claims By&Against HN15[j] Estoppel, Equitable Estoppel Contracts Law> ... > Estoppel > Equitable One seeking to invoke the doctrine of estoppel against Estoppel > Elements of Equitable Estoppel the government first must establish the usual elements of estoppel, and then must demonstrate the existence of HN12[+] Equitable Estoppel, Elements of Equitable affirmative conduct by the government which goes Estoppel beyond mere negligence, must show that the governmental conduct will cause serious injustice, and The elements which must be present for application of must show that the application of estoppel will not estoppel are: (1) a representation as to a material fact unduly harm the public interest. that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Evidence > ... > Exemptions >Statements by Party Opponents>Vicarious Statements Kevin Noell Page 4 of 8 226 So. 3d 1046, *1046; 2017 Fla. App. LEXIS 12714, **1 HN16[.] Statements by Party Opponents,Vicarious Opinion by: JAY Statements 90.803(18)(d), Fla. Stat., provides that a statement by a party's agent or servant concerning a matter within the Opinion scope of the agency or employment thereof, made during the existence of the relationship is not inadmissible. [*1048] JAY, J. Hamilton Downs Horsetrack, LLC ("Hamilton Administrative Law> ... > Evidence >Admissibility Downs"), appeals a final order by the Florida of Evidence > Hearsay Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("the Division"), HN17[1] Admissibility of Evidence, Hearsay rejecting certain factual findings and legal conclusions made by an administrative law judge ("the ALJ") In administrative hearings, hearsay evidence may be following a formal hearing. Because the All properly used for the purpose of supplementing or explaining concluded that a violation did not occur as alleged in the other evidence, but it shall not be sufficient in itself to administrative complaint, and because the Division support a finding unless it would be admissible over should be estopped from prosecuting Hamilton Downs objection in civil actions. even if it did,we reverse. I. Governments> Local Governments> Claims By& Hamilton Downs is a relatively new horse racing Against establishment located in rural Hamilton County, just south of the Florida-Georgia line. Glenn Richards is Governments >State&Territorial owner and managing member of Hamilton Downs. Governments >Claims By&Against Richards has ambitious plans to [**2] turn Hamilton Downs into a first-class pari-mutuel facility complete HN18[A] Local Governments, Claims By&Against with a cardroom, slot machines, an oval race track, starting gates, and grandstands. For now, however, The public trust is undermined when the government Hamilton Downs exists as an L-shaped dirt track punishes people for violations the government causes. approximately 110 yards in length, in an open field, with a shed for betting, a covered box on stilts, and a barn. Hamilton Downs holds a pari-mutuel permit to conduct quarter horse races. On March 15, 2013, the Division Counsel: Seann M. Frazier and Marc Ito of Parker, issued an Operating Day License ("the operating Hudson, Rainer& Dobbs, LLP, Tallahassee, for license"), authorizing Hamilton Downs to conduct Appellant. quarter horse barrel match racing as in years past. The operating license set forth Hamilton Downs' 2014 racing schedule, which consisted of twenty quarter Jason L. Maine, General Counsel, Dwight O. Slater, horse performances over a four-day period in mid-June, Chief Appellate Counsel, and Chevonne T. Christian, at a rate of four performances per day, with each Assistant General Counsel, Tallahassee,for Appellee. performance consisting of eight individual races, for a total of 160 races. Approximately six months before the 2014 meet was set Judges: JAY, J. B.L. THOMAS, C.J., and WOLF, J., to occur, the rule authorizing barrel match racing was CONCUR. declared invalid as an unadopted rule. See Fla. Quarter Horse Track Ass'n v. Dep't of Bus. & Prof/ Reg., 133 So. 3d 1118 (Fla. 1st DCA 2014). The Division advised Richards that Hamilton Downs would not be permitted Kevin Noell Page 5 of 8 226 So. 3d 1046, *1048; 2017 Fla.App. LEXIS 12714, **2 to conduct barrel match racing as in years past, but that horses, so every betting patron wins. it could conduct "flag-drop" racing instead. [**3] According to Richards, he asked for information on the After this race occurred, a thirty-minute meeting was applicable rules, but the Division advised him there were held between [**5] Richards and race officials to no rules governing flag-drop racing. discuss how the race should be treated. Among those present was Charles Taylor—an investigative specialist Three weeks before the 2014 meet was scheduled to for the Division—whose job it was to verify compliance occur, a second unforeseen circumstance arose. The with all rules and statutes at racing events. Also present organization on which Hamilton Downs relied for its was Louis Haskell, who, at the time, was a state horses and riders pulled out of the event. Resolving that steward for the Division. As a state steward, Haskell the show must go on, Richards made alternative supervised compliance with state law and performed the arrangements. He rounded up college students for responsibility of deciding whether each race should be riders and an elderly herd of untrained horses as their declared official or a no contest. racing steeds. The 2014 meet went off on schedule. Each race consisted of two horses. The AU described During the meeting, Richards tried to ensure that the this scene very well: race was not subtracted from the 160 races he was required to conduct, or if it was, that he could make up [*1049] 22. The races must be seen to be the race on a different day. As a possible solution, believed. The 14 events for which video evidence Richards offered to rerun the race. However, the was received show a series of races involving -- as evidence established that this was not a recognized a rule -- tired, reluctant, skittish, or disinterested option; consequently, the proposal was roundly rejected. horses moving at a slow pace down the dust- choked path. There was no marked starting line or Richards also offered to accept a no contest declaration finish line. The horses were often yards apart when from Haskell. HN2[1] Where a no contest is called, it is [a] red rag-on-a-stick was waved [starting the race]. possible for a licensee to obtain a replacement race by With one exception (performance 2, race 7), the requesting from the Division an amendment to the gait of the "racing" horses ranged between a slow racing schedule. Richards was familiar with this walk and a canter. Horses often simply stood at the procedure and was prepared to make the request to starting line before slowly [**4] plodding down the ensure that he performed [**6] all of his required races. track. In one instance, a horse actually backed up, Richards testified that he was told by Taylor and until a bystander took it by the lead, thereafter Haskellt that "there's nothing [*1050] wrong with giving the horse a congratulatory slap on the rump these. There's no rules. Let's go, let's continue on, let's when it began to move in a forward direction. finish them." Richards asked about other races as well. [Louis] Haskell noted races in which riders fell off of Each time, he was told "[t]here are no rules . . . go their horses, or in which a horse left the course. He ahead with it." Ultimately, Richards' offer to accept a no described numerous races, aptly, as contest was rejected, and Haskell declared the race noncompetitive because one or both of the entrants official. walked, including one race (day 3, card 3, race 5) in which the racing steed took 1 minute and 45 Months later, the Division filed an administrative seconds to cover the 110-yard course. The overall complaint alleging, among other things, that Hamilton Downs failed to operate all the races scheduled in the quality of the videotaped races was about what one would expect of an entry-level campers' horse show operating license, in violation of HN3[t] section held at the conclusion of a two-week YMCA 550.01215(3), Florida Statutes, which requires each summer camp. permitholder to "operate all performances at the date and time specified on its license." In other words, the The second race of the meet was a matchup between two horses owned by the same owner, Amie Peacock. 1 In response to a question from the Division's attorney, This is what is known as a coupled entry. Where there is Richards testified that"[y]our two state people, Chuck and LP, a coupled entry in a two-horse race, there can be no said there's nothing wrong with these. There's no rules. Let's meaningful betting because HN1[t] a coupled entry is go, let's continue on, let's finish them." "Chuck" refers to "considered a single betting interest for purposes of Charles Taylor, the Division's investigative specialist.We think wagering." Fla. Admin. Code R. 61D-7.001(12). A bet it is clear that "LP" refers to Haskell-the Division's race placed on one horse is necessarily a bet placed on both steward-inasmuch as Taylor and Haskell were the only "state people"to whom Richards could have been referring. Kevin Noel! Page 6 of 8 226 So. 3d 1046, *1050; 2017 Fla.App. LEXIS 12714, **6 Division alleged that Hamilton Downs failed to conduct Enq'rs, 946 So. 2d 604, 605 (Fla. 1st DCA 2006) all of the 160 races at the 2014 meet. Based upon (quoting Gross v. Dept of Health, 819 So. 2d 997, 1001 Hamilton Downs' request, the matter proceeded to a (Fla. 5th DCA 2002)). HN6[t] "Credibility of the formal administrative hearing. witnesses is a matter that is within the province of the [ALJ], as is the weight to be given the evidence." At the hearing, the Division's theory of prosecution was Stinson v. Winn. 938 So. 2d 554, 555 (Fla. 1st DCA two-fold. First, the Division argued that the quality of the 2006). HN7[t] "The [ALJ] is entitled to rely on the races at the 2014 meet was so bad that, under the law, testimony of a single witness even if that testimony they did not constitute races at all. In his recommended contradicts the testimony of a number of other order, the ALJ concluded that this argument was witnesses." Id. without[**7] merit, and, on appeal, the Division does not dispute this part of the ALJ's conclusions. HN8[1 ] [*1051] An agency "may reject or modify the conclusions of law over which it has substantive Next, the Division contended that the second race jurisdiction." $ 120.57(1)(1), Fla. Stat. When doing so, should not qualify as a race because it was not a pari- "the agency must state with particularity its reasons for mutuel race on which betting could occur. The ALJ rejecting or modifying such conclusion of law . . . and rejected this argument too, concluding as follows: must make a finding that its substituted conclusion [**9] [T]he Division's efforts to cobble together various of law . . . is as or more reasonable than that which was statutory and regulatory definitions to create a rejected or modified." Id. j9['?'] An appellate court standard by which coupled entry races are to be reviews an agency's conclusions of law de novo and nullified does not meet the requirements that „will defer to the agency's conclusions of law unless violations of law be limited to those pled, and that they are clearly erroneous or contrary to law." U.S. statutes authorizing penal relief be strictly Blood Bank, Inc. v. Agency for Workforce Innovation, 85 construed, with any ambiguity construed against So. 3d 1139, 1142 (Fla. 3d DCA 2012). "[I]n doing so, the Division. this court must give 'great deference to the agency's The ALJ further concluded that the Division should be interpretation of the statutory policy it is to administer . . estopped from sanctioning Hamilton Downs for the [and] be moved to intervene only by clearly erroneous alleged violation—even if the violation did occur—and interpretations of a statute."' Murciano v. State, 208 So. ultimately recommended that the Division enter a final 3d 130, 134 (Fla. 3d DCA 2016) (quoting Bethesda order dismissing the amended complaint. Healthcare Sys., Inc. v. Agency for Health Care Admin., 945 So. 2d 574, 576(Fla. 4th DCA 2006)). The Division entered a final order in which it rejected and modified certain of the ALJ's factual findings and The Division erroneously rejected the ALJ's conclusion legal conclusions. The Division concluded that an that the Division failed to prove the alleged violation. alleged violation occurred because the second race was While the second race may not have constituted a pari- not a pari-mutuel race and that estoppel did not apply to mutuel race, Hamilton Downs was not charged with the facts of the case. Consequently, [**8] it imposed a failing to conduct a pari-mutuel race. Instead, it was $1,000.00 fine against Hamilton Downs. This appeal charged with failing to conduct a race. Specifically, the followed. administrative complaint alleged that Hamilton Downs violated section 550.01215(3) by "failing to make 20 II. performances between June 18, 2014 and June 22, HN4[t] Section 120.57(1)(1), Florida Statutes, provides 2014 at a rate of four performances per day." HN10[-] that the agency may not reject or modify an ALJ's "'Performance' means a series of events, races, or findings of fact unless the agency first determines from games performed consecutively under a single a review of the entire record that the findings of fact admission chargg." 4 550.002(25), Fla. Stat. (emphasis were not based upon competent, substantial evidence added). HN11[t] "Race" is defined as a "contest for or that the proceedings on which the findings were purse, stakes or entry fees, on an [**10] approved based did not comply with the essential requirements of course, and in the presence of duly appointed racing law. HN5 "When competent substantial evidence in officials." Fla. Admin. Code. R. 61D-2.001(15). the record supports the ALJ's findings of fact, 'the Here, it is undisputed that the second race occurred on agency may not reject them, modify them, substitute its a licensed, approved course. Furthermore, it is findings, or make new findings."' Walker v. Bd. of Prof/ pp undisputed that the race occurred between two horses Kevin Noell Page 7 of 8 226 So. 3d 1046, *1051; 2017 Fla.App. LEXIS 12714, **10 in the presence of duly appointed racing officials. meeting, the All answered this question in the Finally, the evidence demonstrated that the winner of affirmative, finding that"[b]ased on the foregoing, [**12] each race received a purse of $100, and second place by declaring the race to be official, the Division received a purse of $50. Therefore, the second race represented to Hamilton Downs that the race would be satisfied the definition of a "race" for purposes of counted among those required under the terms of its determining whether Hamilton Downs committed the permit, a representation of material fact that is contrary alleged violation. As the ALJ rightly observed, violations to the Division's position in this proceeding." Although must be limited to those alleged in the pleadings. Cottril.l this was labeled as a conclusion of law, it was in reality v. Dep't of ins., 685 Sc 2d 1371. 1372 (Fla. 1st DCA a finding of fact. 1996) ("Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint We conclude that the ALJ's factual finding that Richards or some comparable pleading violates the was misled was supported by competent, substantial Administrative Procedure Act."). evidence and, consequently, could not be disturbed by the Division. The evidence reflects that, during this Moreover, even if a violation occurred as alleged, the meeting, Richards made every effort to satisfy race All properly concluded that the doctrine of equitable officials and ensure compliance with state law. He estoppel precluded prosecution of Hamilton Downs. proposed at least two solutions, one of which was a HN12[ ] "The elements which must be present for viable course of action that would have enabled application of estoppel are: '(1) a representation as to a Hamilton Downs to obtain an additional, replacement material fact that is contrary to a later-asserted position; race. However, according to Richards, Taylor and (2) reliance on that representation; and (3) [**11] a Haskell assured him there was "nothing wrong" with the change in position detrimental to the party claiming race and that there were "no rules" governing flag-drop estoppel, caused by the representation and reliance racing—a statement consistent with what Richards thereon.' Council Bros., Inc. v. City of Tallahassee, 634 previously had been told by the Division. After the race So. 2d 264, 266 (Fla. 1st DCA 1994) (quoting Dep't of was declared official, the participants moved forward Revenue v. Anderson, 403 So. 2d 397, 400(Fla. 1981)). with the next race. Months later, the Division changed HN13[7] Generally, estoppel may only be applied in its position. [**13] On this evidence, the ALJ could cases of misrepresentations of fact, not misstatements properly find that the Division made an initial of law. Id. at 266. HN14[11] "Equitable estoppel will representation that was contrary to its subsequent apply against a governmental entity 'only in rare position. instances and under exceptional circumstances."' Id. (quoting N. Am. Co. v. Green, 120 So. 2d 603, 610 (Fla. It does not matter that Richards' testimony included 1959)). hearsay statements by Taylor and Haskell. The statements were made by officials employed by the HN15[t] [*1052] One seeking to invoke the Division in the scope of their employment, meaning that doctrine of estoppel against the government first the statements would be admissible in a civil action. See must establish the usual elements of estoppel, and HN16[t] § 90.803(18)(d), Fla. Stat. (providing that "a then must demonstrate the existence of affirmative statement by the party's agent or servant concerning a conduct by the government which goes beyond matter within the scope of the agency or employment mere negligence, must show that the governmental thereof, made during the existence of the relationship" is conduct will cause serious injustice, and must show not inadmissible). Therefore, the statements were that the application of estoppel will not unduly harm sufficient to support the ALJ's finding. See Harris v. the public interest. Game & Fresh Water Fish Comm'n, 495 So. 2d 806, 808 (Fla. 1st DCA 1986) (HN17[] "In administrative Council Bros., 634 So. 2d at 266 (citing Alachua Cty. v. hearings, hearsay evidence may be used for the Cheshire, 603 So. 2d 1334, 1337(Fla. 1st DCA 1992)). purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding The ALJ framed the basic issue as "whether estoppel as unless it would be admissible over objection in civil to the coupled entry race is warranted as a result of the actions.") (emphasis added). effect of the 30-minute meeting held after the second race, and the decision by Mr. Haskell to declare the race We further conclude that Richards relied on the to be 'official.' After discussing the content of the Division's representation to his detriment. Richards "lengthy conversation" that took place during the testified that he would have requested an additional Kevin Noell Page 8 of 8 226 So. 3d 1046, *1052; 2017 Fla.App. LEXIS 12714, **13 race but for Haskell and Taylor's assurance that the second race counted and but for Haskell's [**14] declaration that the race was official. Such a holding does not harm the public interest and avoids a serious injustice. HN18[?] The public trust is undermined when the government [*1053] punishes people for violations the government causes. Accordingly, the final order is REVERSED, and the case is REMANDED for adoption of the recommended order. Prysi v. Dep't of Health, 823 So. 2d 823, 826 (Fla. 1st DCA 2002). B.L. THOMAS, C.J., and WOLF, J., CONCUR. End of Document Kevin Noell