STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,

Petitioner,

vs.

CURTISS D. HUGHES,

Respondent.

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) Case No. 02-0874PL

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RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was held before the Division of Administrative Hearings, by Fred L. Buckine, Administrative Law Judge, on May 7, 2002, in Sanford, Florida.

APPEARANCES

For Petitioner: Joseph M. Helton, Jr., Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Curtiss D. Hughes, pro se

296 Rose Drive Sanford, Florida 32773

STATEMENT OF THE ISSUES

The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 1, 2002, the Administrative Complaint, Agency referral and Election of Rights were filed. On March 4, 2002, the Initial Order was issued and a Response thereto was filed March 7, 2002. On March 12, 2002, a Notice of Hearing, set for May 7, 2002, and an Order of Pre-Hearing Instructions was issued. On April 25, 2002, Petitioner filed a Motion for Continuance and on April 29, 2002, an Order denying the Motion for Continuance was issued.

At the final hearing, Petitioner presented the testimony of three witnesses: 1) Brandy Glaspey, veterinarian assistant and urine sample collector; 2) Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida, qualified as an expert in forensic toxicology; and 3) Stephen E. Toner, investigator for the Florida Division of Pari-

Mutuel Wagering. Petitioner offered in evidence ten exhibits (P1 thru P10) that were accepted without objection. Respondent testified on his own behalf and offered no exhibits in evidence.

The Parties were given 15 days after receipt of the transcript to file proposed recommended orders. On June 4, 2002, the Transcript was filed. On June 13, 2002, Petitioner filed a Motion for Extension of Time to File Proposed Recommended Order, and on June 14, 2002, an Order granting the Motion and rescheduling submittal of proposed recommended orders to June 29, 2002, was entered.

On July 1, 2002, Petitioner's Proposed Recommended Order was filed and has been considered. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes.

2. At all times relevant and material to this proceeding, Respondent, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division.

3. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida.

4. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date.

5. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample.

6. Urine sample 738627 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida and qualified as an expert in forensic toxicology, it tested positive for illegal substance.

7. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in

   the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club.

8. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes.

9. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system.

10. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license.

11. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearing has jurisdiction over the parties and the subject matter of this

    proceeding pursuant to Section 550.0251 and Subsection 120.57(1), Florida Statutes.

13. The Division is the agency of the State of Florida that is charged with the regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes.

14. The standard of proof required to discipline a licensee is that of clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 935 (Fla. 1999); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), quoting from Reid v. Florida Real Estate Commission, 188 So. 2d 846, 861 (Fla. 2nd DCA 1996) that:

    The power to revoke a license should be exercised with no less careful circumspection that the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

    
    

15. The court further amplified the clear and convincing evidence standard. See In re: Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Slomowitz Court stated that:

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witness

    testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

16. By the evidence of record, Petitioner has proven clear and convincingly that Respondent was the trainer of record for the greyhound, M's Shamrock on November 7, 2001, and that M's Shamrock was the greyhound that won first place in the fourth race conducted on November 7, 2001, at the Sanford-Orlando Kennel Club. Petitioner has also proven that the greyhound, M's Shamrock's urine sample was taken at the conclusion of the fourth race and examined at the University of Florida by Dr. Tebbet's testing of urine sample number 738627 was found to contain Benzoylecogonine, an illegal substance.

17. By the evidence of record, Petitioner also has proven clearly and convincingly that Respondent was the trainer of record for the greyhound, Lapislazuli on December 21, 2001, and that Lapislazuli was the greyhound that won first place in the fourteenth race conducted on December 21, 2001, at the Sanford- Orlando Kennel Club. Petitioner has also proven that the greyhound, Lapislazuli's urine sample taken at the conclusion of the fourteenth race and examined at the University of Florida by

    Dr. Tebbet's testing of urine sample number 788210 contained Benzoylecogonine, an illegal substance.

    18. Subsections 550.2415(1)(a),(b),(c),(2), and (3)(a), Florida Statutes, in pertinent parts, provide that:

    (1)(a) The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent is prohibited. It is a violation of this section for a person to administer or cause to be administered any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent to an animal which will result in a positive test for such substance based on samples taken from the animal immediately prior to or immediately after the racing of that animal. Test results and the identities of the animals being tested and of their trainers and owners of record are confidential and exempt from s.

    119.07(1) and from s. 24(a), Art. I of the State Constitution for 10 days after testing of all samples collected on a particular day has been completed and any positive test results derived from such samples have been reported to the director of the division or administrative action has been commenced.

    1. It is a violation of this section for a race-day specimen to contain a level of a naturally occurring substance which exceeds normal physiological concentrations. The division may adopt rules that specify normal physiological concentrations of naturally occurring substances in the natural untreated animal and rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples.

    2. The finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race.

(2) Administrative action may be taken by the division against an occupational licensee responsible pursuant to rule of the division for the condition of an animal that has been impermissibly medicated or drugged in violation of this section.

(3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding $5,000; require the full or partial return of the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section in no way prohibits a prosecution for criminal acts committed.

1. Rule 61D-6.002, Florida Administrative Code, in pertinent part, provides that:

   1. The trainer of record shall be responsible for and be the absolute insurer of the condition of the horses or racing greyhounds he/she enters to race. Trainers, kennel owners and operators are presumed to know the rules of the division.

   2. Each permit holder of a thoroughbred, harness, or greyhound racing facility shall provide and maintain a detention enclosure in a location approved by the division for the purpose of securing urine, blood or other samples from racing greyhounds or horses. The detention enclosure at horse tracks shall contain a wash rack, an office for the division veterinarian, and not less than six detention stalls with an adjacent walking ring. The detention enclosure at greyhound tracks shall be located within a reasonable distance of the veterinary assistant detention office and shall have a chain link perimeter fence which will prevent access of unauthorized persons. The detention enclosure shall be large enough to allow three dogs to be walked simultaneously

      for the purpose of taking urine samples, be partially covered to allow sampling during inclement weather, and have sufficient lighting to allow sampling during hours of darkness.

      
      

2. The above rule, also known as the Absolute Insurer Rule, is based on strict liability as a condition of licensure. Challenging to the validity of this rule has not been successful and the plain reading of Subsection 550.2415(2), Florida Statutes, makes it clear that the Division has authority to hold trainer(s)(of record) responsible for the condition of the greyhound and the trainer (of record) need not be the person who actually administered the impermissible drug. See Hennessey v. Department of Business and Professional Regulation, Division of Mari-Mutuel Racing, 23 FALR 3263 (Fla. 1st DCA (2001). See also, Division of Pari-Mutuel Wagering v. Caple, 362 So. 2d 1350 (Fla. 1978).

3. There is clear and convincing evidence that Respondent is the trainer of record for greyhounds M's Shamrock and Lapislazuli. Under the above-established case law of Florida, Respondent is strictly responsible for the greyhounds' condition if found to have tested positive for impermissible drugs. In this case greyhounds M's Shamrock and Lapislazuli were found to have impermissible drugs and Respondent is responsible.

4. Subsection 550.2451(1)(c), above cited, states that a positive test in a race day specimen is prima facie evidence of

   a statutory violation and creates a rebuttable presumption as to whether the drug was administered and that the drug found was carried in the body of the racing animal. Petitioner established by clear and convincing evidence that: M's Shamrock and Lapislazuli's race day specimens contained benzolyecgonine, metabolites of cocaine, prohibited drugs.

5. Respondent failed to rebut Petitioner's prima facie case that a prohibited drug, cocaine, was administered and was carried in the bodies of the greyhounds.

6. Penalty guidelines for class I impermissible substances were adopted on February 8, 2001, by amendment found in Rule 61-D-6.011(2)(a), Florida Administrative Code, which provides:

   (2) Pursuant to Rule 61D-6.002, Florida Administrative Code, the trainer of record is the absolute insurer of the condition of an animal he or she enters to race. Consequently, when evidence of the presence of an impermissible substance, or substances, is presented either to the Division or to a panel of stewards or judges, the Division or the stewards or judges, absent aggravating or mitigating circumstances, must impose on the trainer of record one or more of the following penalties in accordance with the class of impermissible substance. Provided, however, that any discipline imposed by the stewards or judges shall not exceed their authority pursuant to Section 550.1155, Florida Statutes.

   1. Class I impermissible substances:

      1. First violation $500 to $1,000 fine, suspension or revocation of license;

      2. Any subsequent violation $1,000 to $5,000 fine, suspension or Revocation of license.

   
   

7. The races in this case were conducted after the adoption of the penalty guidelines referenced above; therefore, under Rule 61D-6.011(2)(a), Florida Administrative Code, the minimum fine for this case would be five hundred dollars for the first violation.

8. In addition to the fine, the return of any purse won due to the first place finishes of the greyhounds, M's Shamrock and Lapislazuli, is appropriate and authorized under Subsection 550.2415(3)(a), Florida Statutes, above cited. See Hyman v. State, Department of Business Regulation, Division of Pari- Mutuel Wagering, 431 So. 2d 603 (Fla. 3rd DCA 1983). The reasoning of the court in cases involving racing that requires the return of the purse is that it is appropriate where an unfairly advantaged animal has participated in a pari-mutuel event, regardless of any proof of wrongdoing.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulations, Division of Pari-Mutuel Wagering enter a Final Order in this matter suspending the occupational license of Respondent, Curtiss D. Hughes, for a period of twenty (20)

days and imposing a fine upon Respondent in the amount of

$1,500.00. It is further recommended that the Department's order that any purse received as a result of the first place finish by greyhounds, M's Shamrock and Lapislazuli of the races conducted on November 7 and December 21, 2001, respectively, at the Sanford-Orlando Kennel Club, be returned.

DONE AND ENTERED this 29th day of July, 2002, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2002.

COPIES FURNISHED:

Joseph M. Helton, Jr., Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Curtiss D. Hughes

296 Rose Drive

Sanford, Florida 32773

Dr. Paul F. Kirsch, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-000874PL

Orders for Case No: 02-000874PL