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 Respondent violated Subsection 550.2415(1)(a), Florida Statutes, and, if so, what discipline should be imposed.

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 Subsection 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 Subsection 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 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.

On October 18, 2002, a Recommended Order was issued recommending that the summary suspension be continued.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The one-volume Transcript was filed on October 23, 2002. Petitioner filed its Proposed Recommended Order on

November 4, 2002. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petrillo is the holder of a pari-mutuel wagering occupational license, license number 1558181-1021, issued by the Department on or about May 4, 2002. Petrillo held the pari- mutuel occupational license at all times material to the findings in this case.

2. Naples/Fort Myers Greyhound Track is a licensed pari- mutuel facility authorized to conduct greyhound racing and pari- mutuel wagering in the State of Florida.

3. Petrillo was the trainer of record of a racing greyhound named "Akins A Coastin" on July 11, 2002, when "Akins A Coastin" was entered in the fourteenth race of the evening performance at Naples/Fort Myers Greyhound Track. "Akins A Coastin" finished second in that race.

4. Immediately after the race, a urine sample was collected from "Akins A Coastin," and the sample was assigned sample number 865286. Petrillo witnessed the taking of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

5. Petrillo was the trainer of record of a racing greyhound named "Bow Basil," on August 1, 2002, when "Bow Basil"

   was entered in the thirteenth race of the evening performance at the Naples/Fort Myers Greyhound Track. "Bow Basil" finished first in that race.

6. Immediately after the race, a urine sample was taken from "Bow Basil" and assigned sample number 865667. Petrillo witnessed the collection of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

7. Petrillo was the trainer of record of a racing greyhound named "I Got the Beat" on August 3, 2002, when "I Got the Beat" was entered in the fourteenth race of the afternoon performance at the Naples/Fort Myers Greyhound Track. "I Got the Beat" finished second in that race.

8. Immediately after the race, a urine sample was collected from "I Got the Beat" and assigned sample number 865724. Petrillo witnessed the taking of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

9. Petrillo was the trainer of record of a racing greyhound named "Polk Sally Anna" on August 3, 2002, when "Polk Sally Anna" was entered in the seventh race of the evening performance at Naples/Fort Myers Greyhound Track. "Polk Sally Anna" finished first in that race.

10. Immediately after the race, a urine sample was collected from "Polk Sally Anna" and assigned sample number 865725. Petrillo witnessed the taking of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

11. Petrillo was the trainer of "Bow Basil" on August 8, 2002, when "Bow Basil" was entered in the thirteenth race of the evening performance at Naples/Fort Myers Greyhound Track. "Bow Basil" finished first in that race.

12. Immediately after the race, a urine sample was collected from "Bow Basil" and assigned sample number 889275. Petrillo witnessed the taking of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

13. Petrillo was the trainer of record of a racing greyhound named "J.J.'s Olly McBeal" on August 14, 2002, when "J.J.'s Olly McBeal" was entered in the fourth race of the afternoon performance at Naples/Fort Myers Greyhound Track. "J.J.'s Olly McBeal" finished first in that race.

14. Immediately after the race a urine sample, was collected from "J.J.'s Olly McBeal" and assigned sample number 889359. Petrillo witnessed the taking of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

15. Petrillo was the trainer of record for a racing greyhound named "Pocket Treasures" on August 17, 2002, when "Pocket Treasures" was entered in the third race of the evening performance at Naples/Fort Myers Greyhound Track. "Pocket Treasures" finished second in that race.

16. Immediately after the race, a urine sample was collected from "Pocket Treasures" and assigned sample number 889492. Petrillo witnessed the taking of the sample. The sample was sent to the University of Florida Racing Laboratory, where it was tested and found to contain Benzoylecgonine.

17. Benzoylecgonine is a metabolite of cocaine, which is a topical anesthetic and a Class I drug.

18. 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

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

20. The Department is the agency in the State of Florida charged with the responsibility of regulating the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. The Department has alleged that Petrillo has violated

    Subsection 550.2415(1)(a), Florida Statutes, on seven occasions. The Department must establish the violations as alleged by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

21. Subsection 550.2415(1)(a), Florida Statutes provides: (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.

    
    

22. 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.

23. Rule 61D-6.002(1), Florida Administrative Code, also known as the Absolute Insurer Rule, is based on a theory of strict liability as a condition of licensure. The First District Court of Appeal upheld the validity of Rule 61D- 6.002(1), Florida Administrative Code, in Hennessey v. Department of Business and Professional Regulation, 818 So. 2d 697 (Fla. 1st DCA 2002).

24. The Department has established that Petrillo was the trainer of the greyhounds from which the urine samples were taken, and was responsible for the condition of the greyhounds.

25. Subsection 550.2415(1)(c), Florida Statutes, provides:

    
    

    (c) 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.

    
    

26. The Department has established by clear and convincing evidence that the urine samples numbered, 865286, 865667, 865724, 865725, 889275, 889359, and 889492, contained Benzoylecgonine, which is a metabolite of cocaine, a Class I drug and a prohibited substance pursuant to Subsection 550.2415(1)(a), Florida Statutes. Thus, the Department has established a prima facie case that the greyhounds from which the urine samples were taken raced with a prohibited substance in their bodies.

27. Petrillo has failed to present evidence to rebut the Department's prima facie case. Thus, the Department has established that Petrillo violated Subsection 550.2415(1)(a), on the occasions set forth in the Administrative Complaints.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Steven M. Petrillo violated Subsection 550.2415(1)(a), Florida Statutes on seven occasions, revoking his license, and ordering that any purses won by the greyhounds in the races referenced in the Findings of Fact in this Recommended Order be returned.

DONE AND ENTERED this 21st day of November, 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 21st day of November, 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: 02-003891PL

Orders for Case No: 02-003891PL