STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

MARK L. SMITH,

Respondent.

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) Case No. 02-4028PL

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RECOMMENDED ORDER

A formal hearing was conducted in this case on December 11, 2002, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with 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: No Appearance

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section 550.2415(1)(a), Florida Statutes, by racing an animal that had

Benzoylecgonine, a metabolite of Cocaine, in its body, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 20, 2002, Petitioner Department of Business and Professional Regulation (Petitioner) filed an Administrative Complaint against Respondent Mark L. Smith (Respondent). Said complaint alleged that Respondent violated Section 550.2415(1)(a), Florida Statutes, by racing a greyhound that had Benzoylecogonine in its body. On September 19, 2002, Respondent requested an administrative hearing to contest the allegations of the complaint.

Petitioner referred the case to the Division of Administrative Hearings on October 16, 2002. A Notice of Hearing dated October 31, 2002, scheduled the case for hearing on December 11, 2002.

Petitioner presented the testimony of two witnesses and offered six exhibits, which were accepted into evidence.

Respondent did not make an appearance at the hearing.

A transcript of the proceeding was not filed with the Division of Administrative Hearings.

Petitioner filed its Proposed Recommended Order on December 27, 2002.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating pari-mutuel wagering.

2. At all times material to this proceeding, Respondent held a pari-mutuel wagering occupational license. His current license, No. 20713-1021, is effective until June 30, 2003.

3. Orange Park Kennel Club is located in Duval County, Florida. Petitioner has authorized Orange Park Kennel Club to conduct greyhound racing and pari-mutuel wagering.

4. At all times material to this proceeding, Respondent was the trainer of record for a racing greyhound named "WP's Wrangler." On Wednesday, March 13, 2002, Respondent entered "WP's Wrangler" in the fourth race of the matinee performance at Orange Park Kennel Club. "WP's Wrangler" finished fifth in that race.

5. Immediately after the race, one of Petitioner's employees randomly selected "WP's Wrangler" for a urine test. The urine sample No. 847026, was collected and processed in accordance with established procedures. The urine sample was then sent to the University of Florida Racing Laboratory for analysis.

6. When the laboratory received sample No. 847026, the laboratory staff assigned it a new number, laboratory

   No. 41734K. The laboratory staff had no information regarding

   the identity of the trainer or animal from which the sample was collected. Information identifying the trainer and the animal on Petitioner's DBPR Form 503, which is a log of samples collected and shipped to the laboratory, is redacted from the laboratory copy to protect the integrity of the testing process.

7. The University of Florida Racing Laboratory tested the urine sample. Using gas chromatography/mass spectrometry, the laboratory determined that sample No. 847026/laboratory

   No. 41734K contained Benzoylecgonine, a metabolite of Cocaine. Cocaine is a topical anesthetic and a Class I drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International.

8. In a report dated April 12, 2002, the laboratory set forth its finding relative to sample No. 847026. Using the sample card created at the time that the urine sample was collected from "WP's Wrangler," Petitioner identified Respondent as trainer of record for "WP's Wrangler" on March 13, 2002.

9. Cocaine or any derivative thereof is not a permissible substance to be carried in the body of a racing animal like "WP's Wrangler."

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

11. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Section 550.2415(1)(a), Florida Statutes. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. Section 550.2415, Florida Statutes, states as follows in pertinent part:

    550.2415 Racing of animals under certain conditions prohibited; penalties; exceptions.–

    (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.

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    (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.

    (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.

    
    

13. Rule 61D-6.002, Florida Administrative Code, states as follows in relevant part:

    61D-6.002 General Duties and Responsibilities.

    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.

       
       

14. Clear and convincing evidence indicates that Respondent was responsible for "WP's Wrangler" on Wednesday, March 13, 2002. On that occasion, the greyhound had a prohibited substance in its body when it finished in fifth place

    during the fourth race of the matinee performance at the Orange Park Kennel Club.

15. Based on a theory of strict liability as a condition of licensure, Respondent had an absolute duty to ensure compliance with the regulations governing the areas over which he had responsibility. See Division of Pari-Mutuel Wagering v.

    Caple, 362 So. 2d 1350 (Fla. 1978); Hennessey v. Department of Business and Professional Regulation, 818 So. 2d 697 (Fla. 1st DCA 2002).

16. The penalty guidelines for Class I impermissible substances are found in Rule 61D-6.011(2), Florida Administrative Code, which states as follows in pertinent part:

    (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.

    (a) 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.

    
    

17. In this case, Petitioner has met its burden of proving that Respondent violated Section 550.2425(1)(a), Florida Statutes. Absent any mitigating or aggravating circumstances, Petitioner should suspend Respondent's license for a minimum of ten (10) days and impose a $500 administrative fine for racing a greyhound that tested positive for Benzoylecgonine.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order suspending Respondent's license for ten (10) days and imposing a $500 fine.

DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 9th day of January, 2003.

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

Mark L. Smith 6043 Park Street

Jacksonville, Florida 32205

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

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

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

Professional Regulation 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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-004028PL

Orders for Case No: 02-004028PL