ALJDEC decisions subject to certification as final

07A-023-RAC · Department of Racing · 2008-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 2008 and March 4, 2008 APPEARANCES: Assistant Attorney General Blair Driggs on behalf of the Arizona Department of Racing; James Abdo, Esq. on behalf of the Licensee ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal ________________________________________________________________ FINDINGS OF FACT

1. At all times material to this matter, the above-mentioned licensee (“Licensee”) was licensed by the Arizona Department of Racing (“Department”) in the capacity of a groom. 2. Lillian Joyce Cozby (“Ms. Cozby”) the Management Review Administrator for the Department, the division that oversees licensing, testified: a. The renewal process for licenses in the horse racing industry is done every three years in June. b. For the renewal of licenses that were due to be renewed in June 2007, the Department decided to allow licensees to begin the renewal process in April 2007 to avoid a “crunch” in June 2007. c. The Licensee submitted an application for renewal of the Licensee’s racing license (“Application”) and the license was renewed and valid as of the date of this hearing. d. The June 2007 renewal process was the first time Ms. Cozby was involved in the renewal process. She had begun looking at revising license applications to make them more user friendly for applicants. During the process, she discovered that for some licensees, the documentation provided for the renewal of their licenses was not current with respect to documentation showing that although not a citizen of the United States of America (“United States”), they were permitted to work in the United States on a visa or some other documentation that had an expiration date. For those licensees that had authority to be in the United States without an expiration date, the Department did not have any supporting documentation. e. Some licensees were notified by the Department that their license application was incomplete via a Notice of Incomplete License Application that was mailed on October 26, 2007 providing a deadline of November 12, 2007 for the submission of the necessary documentation. Other licensees did not receive such notice because the Department was in the process of continuing to identify those licensees that did not have current documentation showing authorization to work in the United States if not a citizen of the United States. f. In this case, the evidence of record established that the Department issued a Notice of Incomplete License Application to the Licensee. 3. The Application required the Licensee to either provide an alien registration number or documents of eligibility to be employed in the United States. The documents on file with the Department that were submitted by the Licensee show that the Licensee is not a United States citizen and do not show that the Licensee is eligible to work in the United States. 4. A Notice of Hearing was issued by the Department to the Licensee’s address of record that informed the Licensee of the instant proceeding and that the Department would be seeking to impose a civil penalty, suspend or revoke the Licensee’s racing license for failing to comply with the licensing requirements, namely, failing to submit an unexpired visa or other documentation showing current employment eligibility in accordance with federal law. 5. Ms. Cozby testified that the Department did not receive any unexpired visa or documentation showing that the Licensee is eligible to work in the United States. 6. The Licensee failed to present any documentary evidence showing that the Licensee is eligible to work in the United States. CONCLUSIONS OF LAW 1. Title 8, Code of Federal Regulations, Chapter 12, Section 1324(a), contains certain eligibility requirements for a person who is not a United States citizen to work in the United States. 2. A.A.C. R19-2-106 requires an applicant for licensure to complete the license application prescribed by the Department. 3. A.R.S. § 5-108.05 provides the Department with the authority to revoke or suspend a license based on any grounds that the Department could refuse to issue a license under A.R.S. §5-108 or for a violation of the statutes regulating racing or the Department’s rules. 4. A.R.S. § 5-108 provides in pertinent part:

A. The department shall conduct a thorough investigation concerning the application for a permit or a license and: 1. The department may refuse to issue or renew a license or the commission may refuse to approve or renew a permit for any applicant if there is substantial evidence to find that the applicant:

* * * (g) Has wilfully violated any provision of this chapter or any of the rules and regulations of the commission. (h) Should not, in the best interest of the safety, welfare, economy, health and peace of the people of the state, be granted a license or permit.

5. The Licensee argued that the Department failed to follow its own rules and maintained that the Department failed to show that the Department conducted a thorough investigation to find substantial evidence that it is not in the best interests of the State for the Licensee to keep the Licensee’s racing license. 6. The Licensee also asserted that the Department did not make it clear what documentation the Department required in order for the Licensee to establish to the Department’s satisfaction that the Licensee was eligible to be employed in the United States. However, there was no evidence presented that showed the Licensee did not have an understanding as to what documentation the Licensee needed to present to the Department or that the Licensee ever contacted the Department to question the Department or seek clarification with respect to the submission of such documentation. Consequently, the Administrative Law Judge concludes that there was never an issue as to what documentation the Licensee needed to present to the Department to establish eligibility to work in the United States. 7. The Department, in essence, contended that the documentation and information that the Licensee submitted to the Department, the Licensee did not show that the Licensee was qualified to properly work in the United States as required under federal law, which would make the Licensee a person that would not be in the best interests of the State to have a racing license. The Department also contended that the evidence it relied on was the only evidence it had, namely, the information contained in the Application and the documentation that had been submitted by the Licensee, and that such evidence satisfies the substantial evidence requirement set forth in A.R.S. §5-108. 8. The Administrative Law Judge concurs with the Department and concludes that the Licensee either represented to the Department in the Application that the Licensee’s eligibility to work in the United States had expired and/or the documentation that had been submitted to the Department did not show that the Licensee was eligible to work in the United States. 9. The Administrative Law Judge concludes that the Department met its burden of proving by a preponderance of the evidence that the Licensee violated the above-mentioned provisions of law and grounds exist for the Department to suspend or revoke the Licensee’s racing license. ORDER Based on the above, the Licensee’s racing license shall be revoked on the effective date of the Order entered in this matter. Done this day, March 7, 2008.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Geoffrey Gonsher, Director Department of Racing 1110 W. Washington, Suite 260 Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826