STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF PARI-MUTUAL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5050

)

WILLIAM KOHLER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in, Sarasota, Florida on January 21, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: William Kohler, pro se

18456 Monet Avenue

Port Charlotte, Florida 33948

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent’s pari-mutual wagering occupational license number 1102786-1081 should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 15, 1996, Deborah R. Miller, Director of the Department of Business and Professional Regulation’s Division of Pari-Mutual Wagering charged Respondent, William Kohler, with causing a racing animal to suffer unnecessary pain on February 25, 1996 at the Sarasota Kennel Club facility in Sarasota, Florida in violation of Rule 61D-1.002(22), Florida Administrative Code and Section 550.2415(6)(a), Florida Statutes. Respondent thereafter requested a formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of John Foley, an Investigation Specialist II with the Division; James D. Murphy, Jr., a division judge for the Sarasota Kennel Club; Josephine I. Jenkins, a licensed kennel owner and trainer; and Linda G. Nelson, a licensed kennel helper for C. U. Cardin and Smith, owners. Petitioner also introduced Petitioner’s Exhibits One through Three. Respondent testified in his own behalf and called Mr. Murphy as his witness, also. Respondent also introduced Respondent’s Exhibits A through C.

No transcript of the proceeding was furnished. Subsequent to the hearing, only Petitioner’s counsel submitted Proposed Findings of Fact which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

   Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, was the state agency in Florida responsible for the licensing of racing dog kennel owners and trainers and the regulation of the pari-mutual dog racing industry of this state. Respondent, William Kohler, holds an unrestricted “U1” professional pari-mutual wagering occupational license, number 1102786-1081, and was, at all times pertinent, operating under that license as a greyhound trainer at the Sarasota Kennel Club, a pari-mutual wagering race grounds in Sarasota County, Florida.

2. As a licensed trainer of greyhounds, Respondent was responsible for the custody, care, treatment and training of the greyhounds in his care, consistent with the mandate of the Florida Legislature relating to the humane treatment of animals as found in Section 550.2415, Florida Statutes.

3. On or about February 25, 1996, Respondent and his assistant, Brad Adams, were dipping their dogs for flea infestation. During the course of the procedure, as Respondent was working with an animal by the name of Lisa’s Beauty, the dog became uncooperative and resisted being dipped. This procedure was being observed by Josephine Jenkins, also a licensed owner and trainer, who recalled seeing the animal careen off the fence surrounding the area and fall into the dip tank which contained a mix of water and chemicals intended to kill fleas. At hearing, Ms. Jenkins claimed she could not recall whether Respondent threw the dog against the fence or whether the animal got away from

   him. In a prior sworn statement made to Division investigators, however, she indicated that she saw Respondent hold the dog’s head under the dip and then beat it because it would not behave to his satisfaction. In her earlier statement, she related that she did not see Respondent throw the dog against the fence but only strike her with his open hand and throw her against the dip tub. In light of the consistency of her testimony it is found that Respondent did not throw the dog against the fence nor did he strike the dog with his fist but only with his open hand, and he did hold her head under the dip. In the opinion of Ms.

   Jenkins and Ms. Nelson, the weather was too cool for dog dipping on February 25, 1996.

4. That same date, Ms. Jenkins also saw Respondent kick another dog which was in the turn out pen at the time. This kick was witnessed by Ms. Nelson who did not see any provocation for the kick. At the time, Respondent was wearing boots.

5. Respondent denies abusing his dogs on the days in question or at any other time. He admits to fighting with his dog on February 25, 1996 because he felt it was necessary to treat them all for fleas which had come in on a new batch of dogs. Because of the infestation, he had to dip all the dogs. To leave one dog undipped would render the entire process worthless. All the dogs would be infested again in a short time.

6. In order to dip the dog in question, he grabbed her by the collar and held her up against the fence so that he could

   spray her with a bomb. He admits he sprayed her ears but claims he covered her eyes and her mouth so the spray would not get inside. He admits to using sufficient force to overcome the animal’s resistance to being dipped. Respondent claims the weather was not inappropriate for bathing dogs. As he recalls, it was “barefoot and shorts” weather - somewhere around 65 to 70 degrees.

7. Respondent also admits to breaking up a dog fight on February 25, 10996, but claims he did not intentionally kick a dog. He inserted his foot in amongst the dogs in an attempt to break up the fight, but he also claims he has never gone up to a dog and kicked it as discipline or in anger.

8. Respondent claims he makes his living from training dogs and keeping them in good shape. He claims he cannot do that by abusing his dogs, but he admits he will use force to break up a dog fight. With regard to the dog in question, Lisa’s Beauty, she was examined by two veterinarians shortly after the alleged abuse, and neither found any evidence of mistreatment. Though this may indicate no noticeable damage was done, it does not establish that the misconduct alleged did not take place.

9. Considering the testimony as a whole, the undersigned has considered the allegations by Respondent that the statement of Mr. Adams and the testimony of Ms. Nelson were colored by the fact that they were boy and girlfriend and Respondent had recently terminated Mr. Adams’ employment. However, it was

   evident that Ms. Jenkins’ testimony was given with great reluctance, and considering that she is a qualified and licensed trainer, her appraisal of the Respondent’s actions are given substantial weight. Whereas a layman might consider less than gentle treatment of an animal to be abuse, a trained professional has more insight into what is appropriate treatment, and testimony of such an individual which, as here, indicates abuse, cannot easily be disregarded.

10. Taken together, the evidence of record shows that Respondent intentionally held the dog in question’s head under the surface of the solution, struck it on the head with his open hand, and kicked another dog in the stomach and ribs. Whereas the open-handed striking may not have caused unnecessary pain to the animals in issue, clearly the other actions did, and it is so found.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

12. Section 550.105(4)(b), Florida Statutes, authorizes the Division to discipline an occupational license issued by it if the licensee has violated the provisions of that chapter or the rules of the Division governing the conduct of persons connected with racetracks and frontons. Punishment may include suspension, or revocation of a license or, consistent with Section

    550.0251(10), an administrative fine of not more than $1,000 for each count or separate offense.

13. The intent of the Legislature is expressed in Section 550.2415(6)(a), Florida Statutes, to the extent that animals that participate in races in this state be bred and trained humanely both on and off the racetracks for the lifetime of the animal. Consistent with that statement of intent, the Division has promulgated Rule 61D-1.002(22), Florida Administrative Code which, inter alia, prohibits the intentional or negligent causing a racing animal to suffer unnecessary pain.

14. The burden of proof in this case is on the Petitioner to establish Respondent’s misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

15. As was previously noted, the evidence of record clearly demonstrates that on or about February 25, 1996, Mr. Kohler improperly inflicted unnecessary pain on two racing dogs by, in one case, putting the animal’s head under the dipping solution and hitting it in the head with his open hand; and in the other, by kicking the animal in the stomach and chest. It does not, however, support a finding that Respondent threw the dog against the fence, as alleged.

16. The Division seeks to suspend Respondent’s license for two weeks and to impose an administrative fine of $200.00. This seems to be an appropriate disposition of this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of pari-Mutual Wagering enter a final order suspending Respondent’s occupational license for a period of two weeks, and imposing an administrative fine of

$200.00.

DONE and ENTERED this 24th day of February, 1997, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

William Kohler 18456 Monet Avenue

Port Charlotte, Florida 33948

Lynda L. Goodgame General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Deborah R. Miller Director

Department of Business and Professional Regulation

Division of Pari-Mutual Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792

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.

Docket for Case No: 96-005050

Orders for Case No: 96-005050