STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

KENNETH C. PURDY,

Respondent.

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) Case No. 03-0713PL

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RECOMMENDED ORDER

Pursuant to notice, a hearing pursuant to Section 550.2415(3)(c), Florida Statutes, was conducted on April 14, 2003, by video teleconference between Tallahassee and Miami, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

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

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Kenneth C. Purdy, pro se

15855 Miami Lakeway, North E 248

Hialeah, Florida 33014

STATEMENT OF THE ISSUE

Whether Petitioner, a licensed greyhound trainer, committed the offenses alleged in the Amended Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

On February 17, 2003, Petitioner issued an Order of Summary Suspension pursuant to Section 550.2415(3)(c), Florida Statutes, which suspended Respondent's pari-mutuel wagering occupational license (number 156254-1021). On March 5, 2003, an emergency evidentiary hearing was held by the undersigned on that Order of Summary Suspension. On March 11, 2003, the undersigned entered a Recommended Order, which consisted of findings of fact, conclusions of law, and a recommendation that Petitioner enter a final order upholding the emergency suspension of Respondent's license as a greyhound trainer.

Also on February 17, 2003, Petitioner filed an Administrative Complaint against Respondent, which contained five counts. Each count involved alleged violations of Section 550.2415(1)(a), Florida Statutes, which prohibits the doping of racing greyhounds. On March 25, 2003, Petitioner moved to amend its Administrative Complaint by adding three additional counts involving the doping of racing greyhounds. Without objection, an Order Granting Motion to Amend was entered April 7, 2003.

Respondent filed two election of rights forms, one for the Order of Summary Suspension and one for the Administrative Complaint. The election of rights form for the Order of Summary Suspension requested a hearing pursuant to Section 550.2415(3)(c), Florida Statutes. The other election of rights form requested a formal hearing pursuant to the provisions of Chapter 120, Florida Statutes, to challenge the allegations of the Administrative Complaint. Both requests for hearing were forwarded to the Division of Administrative Hearings on February 28, 2003, where they were assigned Case No. 03-0713PL.

The hearing conducted March 5, 2003, pertained only to the Order of Summary Suspension. At the hearing, Petitioner presented the testimony of Dr. Cynthia Kollias-Baker and James Decker. Dr. Kollias-Baker, an expert in the area of veterinary pharmacology, is the Director of the Racing Laboratory established by the University of Florida in its College of Veterinary Medicine (the Racing Laboratory). The Racing Laboratory is the facility utilized by Petitioner to process urine samples routinely taken from racing animals, including greyhounds, in Florida. Mr. Decker is an investigator supervisor employed by Petitioner. Petitioner offered 22 sequentially numbered exhibits, each of which was admitted into evidence without objection. Respondent called as his only

witness, Dr. Kollias-Baker. Respondent offered no other witness and no exhibits.

Without objection, the following were admitted as exhibits at the final hearing conducted April 14: the 22 exhibits admitted into evidence at the hearing conducted March 5 (Petitioner's Exhibits 1-22) and the transcript of the hearing conducted March 5 (Petitioner's Exhibit 32). In addition to Petitioner's Exhibits 1-22 and 32, Petitioner offered Petitioner's Exhibits 23-30 at the April 14 hearing, each of which was admitted into evidence without objection.

Mr. Decker and Dr. Kollias-Baker testified at the April 14 hearing. Respondent was instructed that he would be permitted to cross-examine these witnesses as to all of their testimony, including the testimony given March 5.

Respondent testified on his own behalf, but he presented no other testimony and no exhibits.

A Transcript of the proceedings conducted April 14, 2003, was filed May 9, 2003. Petitioner timely filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner issued Respondent greyhound trainer's license number 156254-1021 on January 10, 2003.

2. Respondent was the trainer of record for the following greyhounds that raced at Hollywood Greyhound Track at the times pertinent to this proceeding: "WP's Dylan," "LM's Ice Age," "Doinwhat Blair," "Okie Leona," "Tom's Rusty," "Hi Accord," "LM's Angel Eyes," and "Miss Challenger."

3. Hollywood Greyhound Track is a facility authorized to conduct pari-mutuel wagering in Florida pursuant to a permit issued by Petitioner.

4. "WP's Dylan" raced in the fourth race at Hollywood Greyhound Track on the afternoon of January 21, 2003. "WP's Dylan" finished fourth in that race. Following the race, urine sample number 908316 was collected from "WP's Dylan" and was processed at the Racing Laboratory.

5. "LM's Ice Age" raced in the first race at Hollywood Greyhound Track on the evening of January 23, 2003. "LM's Ice Age" finished second in that race. Following the race, urine sample number 907673 was collected from "LM's Ice Age" and was processed at the Racing Laboratory.

6. "Doinwhat Blair" raced in the third race at Hollywood Greyhound Track on the evening of January 23, 2003. "Doinwhat Blair" finished first in that race. Following the race, urine sample number 908327 was collected from "Doinwhat Blair" and was processed at the Racing Laboratory.

7. "Okie Leona" raced in the ninth race at Hollywood Greyhound Track on the evening of January 23, 2003. "Okie Leona" finished first in that race. Following the race, urine sample number 908358 was collected from "Okie Leona" and was processed at the Racing Laboratory.

8. "Tom's Rusty" raced in the fifth race at Hollywood Greyhound Track on the evening of January 25, 2003. "Tom's Rusty" finished first in that race. Following the race, urine sample number 908104 was collected from "Tom's Rusty" and was processed at the Racing Laboratory.

9. "Hi Accord" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907704 was collected from "Hi Accord" and was processed at the Racing Laboratory.

10. "LM's Angel Eyes" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907694 was collected from "LM's Angel Eyes" and was processed at the Racing Laboratory.

11. "Miss Challenger" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907698 was collected from "WP's Dylan" and was processed at the Racing Laboratory.

12. Petitioner proved that each urine sample involved in this proceeding was collected, maintained, and analyzed pursuant to established, routine procedures.

13. Petitioner established by clear and convincing evidence that all eight urine samples involved in this proceeding tested positive for metabolites of cocaine (benzoylecgonine and/or ecgonine methyl ester).

14. Cocaine is a topical anesthetic, and a Class 1 drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners, Inc. Cocaine is prohibited in racing animals in Florida. The presence of the metabolites of cocaine in the urine of the eight animals at issue in this proceeding established that the dogs had been administered cocaine prior to the respective races.

15. Respondent testified that he did not administer cocaine to any of the animals involved in this proceeding. Respondent's denial was uncorroborated.

    CONCLUSIONS OF LAW

    
    

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

17. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See

    Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

18. Section 550.2415(1)(a), Florida Statutes, provides, in pertinent part, as follows:

    (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. . . .

    
    

19. Section 550.3415(2) and (3)(a), Florida Statutes, provide as follows:

    (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.

    
    

20. Rule 61D-6.002(1), Florida Administrative Code, provides, in part, as follows:

    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. . . .

       
       

21. Rule 61D-6.002(1), Florida Administrative Code, makes Respondent, as the trainer of record for the animals involved in this proceeding the "absolute insurer" of the animals' condition. In Hennessy v. Department of Business and Professional Regulation, 818 So. 2d 697 (Fla. 1st DCA 2002), a horse trainer whose animal tested positive for a prohibited substance following a race at a pari-mutuel facility challenged the validity of the rule. The court upheld the validity of the rule, noting that the rule was necessary to protect the integrity of the racing industry.

22. Petitioner proved by clear and convincing evidence that the greyhounds named in this Recommended Order raced after having been administered cocaine in violation of Section 550.2415(1)(a), Florida Statutes. Pursuant to Rule 61D- 6.002(1), Florida Administrative Code, Respondent is responsible for those violations.

23. The penalty guidelines for violations of Section 550.2415(1)(a), Florida Statutes, are found in Rule 61D-

    6.011(2)(a), Florida Administrative Code, which provides as follows:

    (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.

    
    

24. In its Proposed Recommended Order, Petitioner argues that it would be appropriate to require that any purse received in any of the races in question be returned. The undersigned has, after careful consideration, rejected that argument because there was no evidence as to any of the purses involved in any of the races at issue in this proceeding, including the amounts of such purses or whether Respondent received any portion of such purses.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's license and imposing an administrative fine against Respondent in the aggregate amount of $8,000.

DONE AND ENTERED this 29th day of May, 2003, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 May, 2003.

COPIES FURNISHED:

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

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Kenneth C. Purdy

15855 Miami Lakeway, North E 248

Hialeah, Florida 33014

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 03-000713PL

Orders for Case No: 03-000713PL