STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

CHAD E. MICHAUD,

Respondent.

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) Case No. 06-3040PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 22, 2006, in Orlando, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stefan Thomas Hoffer, Esquire

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Chad E. Michaud, pro se

27 Jackson Court Casselberry, Florida 32707

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's license should be summarily suspended in accordance with Subsection 550.2415(3)(b), Florida Statutes (2006).

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division"), issued an Order of Summary Suspension (the "Order") dated July 28, 2006. The Order summarily suspended the license of Chad E. Michaud ("Michaud"), who is a licensed greyhound trainer. The Order also restricted Michaud's access to the grounds of all pari- mutuel facilities within the state. As required by law, the Division provided Michaud - within 72 hours of issuance of the Order - an opportunity to request a post-suspension hearing.

Michaud filed an Election of Rights form on or about August 18, 2006, and a hearing was held in Orlando, Florida, on August 22, 2006.

At the final hearing, the Division offered five exhibits into evidence, each of which was accepted without objection. Two witnesses testified on behalf of the Division: David M. Tiffany, scientific research manager for the University of Florida's Racing Laboratory, and Stephen Toner, an investigator with the Division. Michaud testified on his own behalf and offered no exhibits into evidence.

At the close of the evidentiary portion of the final hearing, the parties were allowed three days within which to file their respective proposed recommended orders. No one ordered a copy of the hearing transcript. On August 25, 2006, both parties filed Proposed Recommended Orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Division is the agency of the state responsible for monitoring and regulating all aspects of pari-mutuel wagering activities. One of its responsibilities is the testing of greyhound dogs for prohibited substances.

2. Michaud holds pari-mutuel wagering license number 16293-1021 as a greyhound trainer.

3. On June 23, 2006, Michaud was the registered trainer of a greyhound known as "Ikes Trudy." Michaud was working at the Sanford Orlando Kennel Club (also known and hereinafter referred to as "CCC Racing"). Ikes Trudy ran in the seventh race at CCC Racing on June 23, 2006, finishing fourth or fifth in that race.

4. Upon conclusion of the race, a urine sample was taken from Ikes Trudy by a Division employee. The sample was taken in an area of CCC Racing set aside for that purpose. The testing site was not covered, i.e., it was open to the elements.

   However, there was no evidence of inclement weather at the time the test sample was taken.

5. At the conclusion of each greyhound race, the winning dog is always tested. It is normal for the Division to randomly select another dog from the same race for testing as well. In this case, however, Ikes Trudy was specifically selected for testing by the Division. No other dog was randomly sampled.

6. After the urine sample had been taken, a "Urine Sample Card" was completed by the Division employee, signed by Michaud, and placed in a coin envelope. The urine sample card identifies the greyhound as Ikes Trudy, the race track as CCC Racing, and the trainer as Michaud.

7. The urine sample was then duly-processed and tested in accordance with procedures established by the Division. The test was performed at the University of Florida Racing Lab, a certified and accredited testing facility. David M. Tiffany supervised the testing procedure and signed the Report of Positive Result on the test sample.

8. The test determined the presence of two metabolites of cocaine in the urine sample: Benzoylecgonine ("BZE") and Ecgonine Methyl Ester ("EME"). Cocaine is a Class 1 drug and is a prohibited substance in racing greyhounds. The BZE concentration in the sample was greater than 720 nanograms per milliliter or 720 ng/mL. The EME concentration was 62.9 ng/mL.

   The normal or average concentration of these metabolites, when found in a greyhound, is between 10 and 50 ng/mL. The highest level Mr. Tiffany had ever seen was approximately 120 ng/mL of BZE and that was in this same animal, Ikes Trudy.

9. The question of how such a high concentration of these metabolites would affect an animal was not resolved at the final hearing. Michaud suggested such a level would kill the animal; Mr. Tiffany could not confirm that suggestion as factual.

10. Mr. Tiffany did not think the extremely high concentration of metabolites in this test raised any questions about the testing process or its results.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).

12. The Division has the burden to establish by clear and convincing evidence the allegations contained in the Order. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. The Division alleges Michaud violated Section 550.2415, Florida Statutes (2006), which states:

    (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 identities of the animals being tested and of their trainers and owners of record are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution of 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.

       
       

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       [3](b) The division, notwithstanding the provisions of Chapter 120, may summarily suspend the license of an occupational licensee responsible under this section or division rule for the condition of a race animal if the division laboratory reports the presence of an impermissible substance

       in the animal or its blood, urine, saliva, or any other bodily fluid, either before a race in which the animal is entered or after a race the animal has run.

       
       

       (c) If an occupational licensee is summarily suspended under this section, the division shall offer the licensee a prompt postsuspension hearing within 72 hours, at which the division 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.

       
       

14. The state has a valid objective in seeking to prevent drugging of race animals, both in the interest of the health of the animals and the integrity of sport. See Simmons v. Division of Pari-mutuel Wagering, Department of Business and Professional Regulation, 407 So. 2d 269 (Fla. 3rd DCA 1981).

15. It is uncontroverted that Michaud was the trainer of Ikes Trudy on June 23, 2006, and that the urine sample taken from the dog on that date tested positive for metabolites of cocaine. Under the plain language of the statue, the Division has presented clear and convincing evidence to support its summary suspension of Michaud's license.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering upholding the summary suspension of the license of

Chad E. Michaud.

DONE AND ENTERED this 28th day of August, 2006, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 28th day of August, 2006.

COPIES FURNISHED:

Stefan Thomas Hoffer, Esquire Department of Business and

Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202

Chad E. Michaud

27 Jackson Court Casselberry, Florida 32707

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 06-003040PL

Orders for Case No: 06-003040PL