Gaming Commission Rulings Database
| Licensee: FRANCISCO ORTEGA HERNANDEZ |
| Licensed As: GROOM |
| Notice Number: MO 70-2019 |
| Racing Type: Thoroughbred |
| Track: Main Office |
| Notice Date: 10/31/2019 |
| Status: CLOSED |
| Ruling Type: Other |
| Rule(s): 4002.8; 4002.9; 4042.4 |
| Ruling Text: PLEASE TAKE NOTICE that the occupational licenses of you, Francisco Ortega Hernandez, to participate in pari-mutuel racing as a groom or otherwise are hereby SUSPENDED IMMEDIATELY pending the disposition by the New York State Gaming Commission (“Commission”) of the scheduled hearing before the Commission, or if you refuse such hearing or default in appearing, then SUSPENDED until such time as the Commission in its discretion takes further action, including but not limited to license suspension or revocation or refusal to license.
YOU ARE FURTHER NOTIFIED that a hearing in this matter will be held at 1:00 p.m. on Thursday, August 1, 2019, at the New York State Gaming Commission (“Commission”) office at One Broadway Center, Suite 500, Schenectady, New York.
This action is taken pursuant to Racing, Pari-Mutuel Wagering and Breeding Law ("Racing Law") § 220; 9 NYCRR §§ 4002.8 and 4002.9; and State Administrative Procedure Act § 401(2), upon a finding of the Commission that the public safety and welfare imperatively require this emergency action in that your continued participation in racing is a potential cause of public harm and further could result in an impairment of the public's confidence in pari-mutuel racing in New York state and have an adverse effect upon substantial State and public revenues and revenues to the industry in general generated by pari-mutuel racing, in that, under the present circumstances you lack the general character and fitness for continued participation in pari-mutuel racing and your continued participation in pari-mutuel racing is presently inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, based upon the circumstances and charges stated more particularly hereinafter.
The disposition of these matters may result in the revocation or suspension of your license, your exclusion from all racetracks in New York State, and the imposition of fines. In particular, at the scheduled and any adjourned dates of your hearing proof will be offered why, pursuant to Racing Law §§ 220 and 250, Article 3 of the State Administrative Procedure Act, and Part 4550 of 9 NYCRR, the Commission should fine you in an amount not exceeding $25,000 per violation, suspend and/or revoke your licenses to participate in pari-mutuel racing, and exclude you from all New York State racetracks whether as a licensee, participant, or patron, pursuant to Section 220(2) of the Racing Law and the applicable Commission rules at 9 NYCRR, as follows:
1. Your licenses to participate in pari-mutuel racing should be suspended or revoked and you should be fined in an amount not to exceed $25,000 for each violation pursuant to 9 NYCRR §§ 4002.8 and 4002.9 and Racing Law § 220, in that, on July 20, 2019 at approximately 11:00 p.m., you stalked and attacked a female who was a stranger to you while she was walking in downtown Saratoga Springs, New York in the vicinity of Caroline and Phila Streets, and on the afternoon of July 24, 2019 you fled onto the backstretch area of Saratoga Race Course to evade capture by the police who were investigating the criminal incident of July 20, 2019; and such misconduct demonstrates that your character and general fitness are such that your continued participation in racing at this time will not be consistent with the public interest, convenience or necessity and with the best interests of racing generally; and
2. You should be excluded from the grounds of each racetrack in New York State, whether as a licensee, participant, or patron, pursuant to 9 NYCRR § 4042.4 and Racing Law § 220, based upon your foregoing misconduct.
PLEASE TAKE NOTICE that the hearing will be conducted pursuant to Section 220 of the Racing, Pari-Mutuel Wagering and Breeding Law, Article 3 of the State Administrative Procedure Act, and Part 4550 of 9 NYCRR.
PLEASE TAKE NOTICE that you may be represented by counsel, cross-examine witnesses, and present evidence and arguments on your own behalf. Interpreter services will be made available to deaf persons and people who are not English language proficient at no charge but should be requested in writing before the hearing date. You are responsible to deliver this Notice of Hearing to your attorney, if you have or retain one. This shall be a de novo hearing that may result in the imposition of any legally available penalty including a license suspension or revocation and a fine not to exceed $25,000 pursuant to Racing, Pari-Mutuel Wagering and Breeding Law §§ 116 and 250.
PLEASE TAKE NOTICE that the Commission may conduct your hearing using live videoconferencing that allows you and each other witness to participate and testify from another location. If you participate in your hearing through video conferencing, then you are responsible to be sure that a copy of any physical evidence that you want to use during testimony or introduce into evidence is delivered to opposing counsel and the Hearing Officer before the hearing, and that the Hearing Officer has an opportunity to examine the original of any evidence that you may want to introduce into evidence.
If you wish to request an opportunity to participate in your hearing by video-conferencing from a location that might be more convenient for you, then you must make this request before the scheduled hearing date, and you must telephone the Commission (518-388-0115) to select a videoconference location and to verify that you will appear on your scheduled hearing date.
PLEASE TAKE NOTICE that the hearing may be adjourned at the discretion of the Hearing Officer for good cause shown upon the request of any party. Requests for adjournments must be submitted at least two business days before the date of the scheduled hearing. Absent a serious emergency matter, no requests for adjournments will be granted within two business days of the scheduled hearing date. To request an adjournment, you must contact the hearing officer at mhoblock@gmail.com with concurrent notice to the assigned counsel at rick.goodell@gaming.ny.gov, as soon as possible. Requests for adjournments must be in writing and, after the opposing party has an opportunity to be heard regarding a request for adjournment, approved by the Hearing Officer. If you fail to appear at the hearing, then you will be in default, the Commission may proceed in your absence with the hearing, and your appeal or request for a hearing may be deemed withdrawn.
***SUBSEQUENT HISTORY***
STIPULATION OF SETTLEMENT
WHEREAS, on July 29, 2019, the New York State Gaming Commission (“Commission”) summarily suspended the occupational license of Francisco Ortega Hernandez (“Respondent”) to participate in pari-mutuel thoroughbred racing as a groom or otherwise pending an adjudicatory hearing before the Commission of the misconduct alleged in the Amended Notice of Suspension and Hearing dated July 29, 2019;
WHEREAS the hearing date has been adjourned at the request of Respondent while the parties have discussed a possible disposition of this matter; and
WHEREAS, no person who is party to this proceeding is an infant or incompetent person for whom a committee has been appointed;
NOW, Respondent Francisco Ortega Hernandez, represented by Joseph W. Hammer, Esq., and the Commission, upon the mutual promises and considerations set forth in this stipulation, agree to settle this matter as follows:
1. Respondent hereby voluntarily surrenders his occupational license issued by the Commission.
2. Respondent acknowledges and agrees that he shall not participate in New York State pari-mutuel racing and shall not enter upon any area of any franchised or licensed racetrack in New York State to which access is restricted to only persons with proper occupational and badge list credentials without having an occupational license that was duly and properly issued to him by the Commission.
3. The Commission and Respondent acknowledge and agree that the voluntary surrender of Respondent’s occupational license(s) moots the issue of whether or not the Commission might conclude, after Respondent were accorded the scheduled adjudicatory hearing with full procedural rights, that Mr. Ortega committed the alleged misconduct in violation of the law and rules of the Commission. The parties agree that the pending proceeding shall be withdrawn by the Commission.
4. Respondent waives his right to bring a judicial challenge to any of the actions of the New York State Gaming Commission, its members, agents, or employees, with respect to this case, in any state or federal court or other forum, except to the extent that he seeks to enforce the terms and conditions of this Stipulation.
5. Respondent has read all the above conditions and understands and agrees to comply with these conditions.
6. This stipulation represents the full, final and complete resolution of the above-referenced matter.
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