STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

STEVEN M. PETRILLO,

Respondent.

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) Case Nos. 02-3890PL

) 02-3891PL

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 14, 2002, by video teleconference in Tallahassee and Fort Myers, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative

Hearings.

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: Steven M. Petrillo, pro se

1740 Butler Road

Fort Myers, Florida 33912

STATEMENT OF THE ISSUE

Whether the Order of Summary Suspension of Respondent's license as a greyhound trainer filed September 20, 2002, is appropriate.

PRELIMINARY STATEMENT

On September 20, 2002, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department), issued an Order of Summary Suspension, suspending the pari-mutuel wagering occupational license number 1558181- 1021 issued to Respondent, Steven M. Petrillo (Petrillo), and filed a six-count Administrative Complaint against Petrillo, alleging violations of Section 550.2415(1)(a), Florida Statutes, which prohibits the racing of greyhounds with any drug.

Petrillo requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings (DOAH) for assignment to an administrative law judge. The case was assigned DOAH Case No. 02-3891PL.

On August 21, 2002, the Department filed a one-count Administrative Complaint against Petrillo, alleging a violation of Section 550.2415(1)(a), Florida Statutes, which prohibits racing greyhounds with any drug. Petrillo requested an administrative hearing, and the case was forwarded to DOAH for assignment to an administrative law judge. The case was assigned Case No. 02-3890PL.

On October 10, 2002, a telephonic conference was held with the parties, and it was agreed that the cases would be consolidated for final hearing and that the hearing on the Order of Summary Suspension and the Administrative Complaints would be held together. The parties agreed to hold the final hearing on October 14, 2002.

During the telephone conference on October 10, 2002, Petitioner made an ore tenus motion to amend the Administrative Complaint in DOAH Case No. 02-3890PL to include an additional count. The motion was granted, and Petitioner filed a seven- count Amended Administrative Complaint. At the final hearing, Petitioner withdrew Count Seven of the Amended Administrative Complaint.

At the final hearing, Petitioner called the following witnesses: Royal Logan, Margaret Wilding, and James Decker. Petitioner's Exhibits 1 through 31 were admitted in evidence without objection. Respondent testified in his own behalf and offered no exhibits.

FINDINGS OF FACT

1. The Department presented the laboratory reports from the University of Florida, College of Veterinary Medicine, Racing Laboratory, showing positive test results in seven samples for Benzoylecgonine, a metabolite of cocaine. Cocaine is a topical anesthetic and a Class 1 drug. The Benzoylecgonine

   was found in the following samples: 865286, 865667, 865724,

   
   

   865725, 889275, 889359, and 889492.

   
   

2. The Department presented documentation establishing that all the samples were taken from greyhounds that raced at Naples-Fort Myers Greyhound Track, identified as Track 142. Petrillo was the trainer for the greyhounds at the time the samples were taken and, as the owner's witness, witnessed the taking of the samples after each greyhound had completed its race.

3. Petrillo was issued a greyhound trainer's license, number 1558181, by the Department on May 4, 2002.

4. Petrillo denied that he administered the drug to the animals. According to his testimony, others may have had access to the greyhounds prior to the races in which the dogs

   participated.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 550.2415(3)(c), Florida Statutes.

6. Section 550.2415(3), Florida Statutes, provides that the Department may summarily suspend the license of an occupational licensee who is responsible for the condition of a race animal if the Department's laboratory reports an impermissible substance in the animal after the race in which

   the animal has run. If a licensee is summarily suspended, the licensee may have a prompt postsuspension hearing, "at which the [Department] shall produce the laboratory report and documentation which, on its face, establishes the responsibility of the occupational licensee. Upon production of the documentation, the occupational licensee has the burden of proving his or her lack of responsibility." Section 550.2415(3)(c), Florida Statutes.

7. Rule 61D-6.002(1), Florida Administrative Code, provides:

   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.

      
      

8. The Department has established that Petrillo, as the trainer of the greyhounds, is responsible for the racing of the sampled animals with a substance which is prohibited under Section 550.2415(1)(a), Florida Statutes.

9. Petrillo has failed to meet the burden to establish his lack of legal responsibility for the violation. Therefore, the summary suspension of license number 1558181 is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered continuing the summary suspension of Steven M. Petrillo's license until the entry of a final order on the pending administrative complaints.

DONE AND ENTERED this 18th day of October, 2002, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 18th day of October, 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

Steven M. Petrillo 17401 Butler Road

Fort Myers, Florida 33912

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation Northwood Centre

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: 02-003890PL

Orders for Case No: 02-003890PL