STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION ) DIVISION OF PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1202

)

DAVID A. HELD, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 12, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

Department of Business & Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: David A. Held, pro se

6202 South Harold Avenue Tampa, Florida 33616

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent licensee should be disciplined for allegedly violating F.A.C. Rule 61D-1.002(22).

PRELIMINARY STATEMENT

On or about January 12, 1994, an Administrative Complaint was filed against the Respondent and given BPR Case No. 93090673. It charged that the Respondent should be disciplined for allegedly violating F.A.C. Rule 61D-1.002(22). The Respondent denied the charges and requested a formal administrative proceeding.

On March 3, 1994, the matter was referred to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 94-1202 and assigned to a hearing officer. A Notice of Hearing was issued scheduling the case for final hearing on May 12, 1994, in Tampa, Florida.

At final hearing, the Department called eight witnesses and had Petitioner's Exhibits 1 and 2 admitted in evidence. The Respondent testified in his own behalf and called two other witnesses and also had Respondent's Exhibit

1 admitted in evidence.

At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-1202.

FINDINGS OF FACT

1. The Respondent, David A. Held, has been in the business of training racing greyhounds in Florida, with the appropriate State of Florida licensure, for approximately 15 years. On or about August 25, 1993, he applied for renewal of his license, and on September 9, 1993, his occupational license as an unrestricted professional greyhound trainer was renewed for another year.

   
   

2. By all accounts, during the entirety of the Respondent's career as a professional greyhound trainer, up until the incidents involved in this case, the Respondent did a creditable job both training and caring for the animals in his care.

   
   

3. In early September, 1993, a series of stressful events in the Respondent's life built to a level of stress with which the Respondent no longer could cope effectively. First, for some time, the Respondent had been divorced and had primary responsibility for the care of his young son (with assistance from his parents.) He also was caring for and training a number of racing greyhounds at a kennel in the Tampa compound in Plant City, Florida. He leased the kennel from Charles Marriott, who paid him $100 a month to "finish" each greyhound Marriott placed in the Respondent's care. Marriott also paid the cost of schooling his greyhounds at the track in Sarasota every Monday and Thursday morning and paid the cost of any veterinarian services needed for his greyhounds. He also received $700 in approximately August, 1993, for "finishing" seven greyhounds owned by Lamar Porter and being trained by Dorothy Weekley during that month. But, in addition to Marriott's 16 greyhounds and Porter's seven, the Respondent also had approximately 21 others in the kennel in early September, 1993. Twenty were owned by an individual named "Jim," who stopped paying the Respondent. Without any income from "Jim," the Respondent began having serious financial difficulties covering the expenses of caring for and maintaining all of the animals in his charge, much less also providing living expenses for him and his son.

   
   

4. For reasons not fully explained at the hearing, the Respondent always bought the meat in Clearwater. Due to his financial difficulties, the Respondent lost his credit at the place where he was purchasing frozen meat for the greyhounds in his kennel. As a result, he had to pay cash and buy the meat daily. The additional time spent buying meat on a daily basis put additional stress on the Respondent.

   
   

5. To make matters worse, the roof of his kennel collapsed in early September, 1993. He had to move all of the greyhounds in his charge to a temporary kennel. Anticipating flea and tick and other problems from using the temporary kennel, he mowed the grass in the "turn-out" area of the temporary kennel and even tilled the soil. Despite those precautions, he began having worse than normal flea and tick problems. In addition, many of his greyhounds

   began to develop a skin disease characterized by multiple lesions. (The Respondent referred to it as "the Alabama rot.")

   
   

6. Meanwhile, while trying to attend to all of the other responsibilities he had, the Respondent also had to re-roof and re-paint his kennel. While this was going on, his equipment was scattered in various places in the two kennel locations, and there was construction debris on the grounds as well. His operation appeared to be and was in fact in a state of chaos.

   
   

7. While trying to cope with all of the unusual problems he was having, the Respondent still managed to continue to care for the greyhounds in his care. He cared for and fed the animals, turned them out to urinate and excrete feces and exercise several times a day, "finished" them (i.e., prepared them for race training at a track), and met Marriott at the track in Sarasota every Monday and Thursday to "school" his greyhounds.

   
   

8. On September 8, 1993, the Respondent had to be at the dog track in St. Petersburg in the late afternoon. He also had to "turn his dogs out" and buy meat for them. He decided that, instead of driving all the way back to Plant City to "turn out" at 5:30 p.m., the normal time for the next "turn-out," he would first go directly to Clearwater to buy the meat. He did not get back to his kennel until later in the evening.

   
   

9. Meanwhile, the owner of one of the dogs at his kennel, a Lamar Porter, was driving by the Tampa compound in Plant City and decided to check on his dogs. He was told at the security gate that the Respondent had not been there to "turn out." Porter tried to reach the Respondent by telephone and got his mother at his parents' home. Porter told her that the Respondent had not "turned out" and could not be located and made the statement that someone had better "turn out." Based on Porter's statement, the Respondent's mother decided that she and her husband should take it upon themselves to try to "turn out" for her son. They drove to the compound, went to the Respondent's kennel, and began to "turn out." During the "turning out," the Respondent's parents "turned out" dogs that should not have been "turned out" together and "turned out" too many dogs at once. Some of the dogs began fighting, and the Respondent's parents were unable to stop the fighting. The situation quickly was out of control, and the Respondent's parents sent for help. By the time help arrived, several of the dogs were injured, some seriously; one was killed.

   
   

10. The next morning, Thursday, September 9, 1993, the Respondent met Marriott at the track in Sarasota, as scheduled. Marriott's greyhounds looked good and performed well in the schooling. Up to then, Marriott was "very satisfied" with the Respondent. Some of his best greyhounds at the St. Petersburg track, where he raced his dogs, were "finished" by the Respondent.

    
    

11. On September 9, 10 or 11, 1993, the Respondent also delivered seven of Porter's dogs to Dorothy Weekley. Weekley also is a racing greyhound trainer. She had agreed with Porter to train and race his greyhounds in return for a 65 percent interest in them. Through Porter, she paid the Respondent $700 to "finish" the seven greyhounds for her during the preceding month. When the Respondent delivered the greyhounds to Weekley at an "unofficial schooling," they were in poor condition. Weekley testified that they appeared to be underfed and poorly cared for. She testified that they were underweight and

    out-of-condition and that they were infested with ticks and fleas. While it is not inconceivable, in light of the problems the Respondent was having with the "turn-out" pen at his temporary kennel, that the Porter greyhounds had worse than usual ticks and fleas, there does not appear to be any reason why they

    would have more ticks and fleas than Marriott's greyhounds, which looked fine to him, or why the skin disease afflicting the dogs would have afflicted Porter's greyhounds more than Marriott's. There also does not appear to be any reason why Marriott's greyhounds would have been better fed or exercised than Porter's. However, it is quite possible that Porter's greyhounds were more involved in and more affected by the dog fight the previous evening than Marriott's. In any event, it is curious that Weekley never complained to the Respondent about the condition of the dogs, and the evidence did not clearly explain the reasons for the poor condition of the Porter greyhounds when the Respondent delivered them to Weekley.

    
    

12. On September 10, 1993, the Respondent took one of his dogs with the worst skin lesions from "the Alabama rot" to the local veterinarian who specialized in the care of racing greyhounds for treatment and for advice on how to treat the other dogs that also had developed the skin problem.

    
    

13. The Respondent planned to worm his greyhounds on Sunday, September 12, 1993. The Respondent uses worm pills that require the dogs to have an empty stomach so they are not fed the day before. Although the veterinarian who testified at the hearing explained that he prefers another method that does not require the dogs to skip a feeding, there was no evidence that the method used by the Respondent was inappropriate. (It is how the Respondent always has wormed greyhounds in his charge.) The Respondent did not feed the dogs on the evening of Saturday, September 11, and planned to feed them on the evening of Sunday, September 12, 1993. He wormed the dogs, as planned, earlier on Sunday, September 12, 1993, but when he went to feed them later that evening, he discovered that the meat was spoiled. He thought at the time that he had taken the meat out too early to thaw although it is possible that the meat was spoiled before it was frozen for sale.

    
    

14. At that point, on Sunday evening, September 12, 1993, the Respondent was unable to cope with any more adversity. (In view of his poor mental and emotional condition, the Respondent probably was not caring for the dogs as well as he normally would have throughout the weekend.) Nor was he able or willing to seek help in meeting his responsibilities. In extreme emotional distress, he simply walked away from the kennel and his responsibilities.

    
    

15. By the next morning, Monday, September 13, 1993, the Respondent was considering suicide. He telephoned his parents to tell them. He asked them to telephone Marriott to tell him what was happening so that he could arrange to take care of the dogs. A short time later, the Respondent's father found the Respondent collapsed and unconscious on the seat of his truck. The Respondent's father turned off the engine, and the Respondent survived. His parents got him help at a local crisis intervention center.

    
    

16. Before Marriott was able to reach the Respondent by telephone to find out why the Respondent had missed the scheduled schooling in Sarasota that morning (the Respondent's cellular telephone Marriott was calling had been stolen), he got a telephone call from the Respondent's mother. Marriott immediately telephoned Lamar Porter and asked him to look in on and take care of the dogs in the Respondent's kennel until he could get there. When Porter arrived along with some neighboring kennel operators, the Respondent's kennel still was in deplorable condition (primarily as a result of the unfinished refurbishing and the requirement to contemporaneously use the temporary kennel), and his dogs already were in terrible shape. They had not eaten since the evening of Friday, September 10, 1993, and had not been watered or turned out since some time on Sunday. It does not take more than a few days without food

    and water for greyhounds to develop serious health problems. In addition, the worming process used by the Respondent tends to dehydrate the dogs. By the time the dogs were "rescued" on Monday, September 13, 1993, they were weak, dehydrated and practically starved. One was unable to stand and had its tail chewed off (probably by the dog in the adjacent kennel) and was carried to a veterinarian for treatment. When the vet telephoned the dog's owner to apprise her of the extent of the dog's injuries, the owner decided to authorize the vet to euthanize the animal.

    
    

17. After being admitted to the crisis center, the Respondent was hospitalized for approximately a week. Marriott evicted him from the kennel, and other arrangements were made for the care of the greyhounds found there. The Respondent had no further involvement with the animals.

    
    

18. During his hospitalization, the Respondent was diagnosed as having manic-depression and was given medication. On being discharged from the hospital, the Respondent's attending mental health professional advised that he continue a course of medication and treatment after his discharge. The Respondent has not followed that advice.

    
    

    CONCLUSIONS OF LAW

    
    

19. F.A.C. Rule 61D-1.002(22) provides:

    
    

    No person responsible for the custody, care, or treatment of any racing animal shall fail to provide that animal with adequate food, water, shelter, medical treatment, or exercise, nor by neglect or intentional act

    cause a racing animal to suffer unnecessary pain.

    
    

    Under Section 550.002(28), Fla. Stat. (1993), the term "racing greyhound" is defined to include "a greyhound that . . . is being bred, raised, or trained to be used in racing at a pari-mutuel facility."

    
    

20. Section 550.105(4), Fla. Stat. (1993), provides in pertinent part:

    
    

    (b) The [Department of Business and Professional Regulation, Division of Pari- Mutuel Wagering (the division)] may deny, suspend, revoke, or declare ineligible any occupational licensee if the applicant for or holder thereof has violated . . . the rules of the division governing the conduct of persons connected with racetracks.

    * * *

    (d) . . . The division may impose a civil fine of up to $1,000 for each violation of the rules of the division in addition to or in lieu of any other penalty provided for in this section.

    
    

    See also Section 550.0251(10), Fla. Stat. (1993).

    
    

21. The evidence in this case is clear that the Respondent, an unrestricted professional greyhound trainer holding an occupational license issued by the Division, violated F.A.C. Rule 61D-1.002(22). As found, the

    Respondent's neglect of the animals in his charge was an isolated occurrence, in a relatively long and creditable career as a racing greyhound trainer, that was precipitated by a major episode of depression resulting from an inability to cope with life stresses, combined with an apparent condition of manic- depression. In view of the cause of the circumstances leading to the neglect of the animals, it is troubling that the Respondent has rejected his treating mental health professional's advice to continue to receive treatment. This is especially true since one reason the stresses on the Respondent were allowed to build beyond his ability to cope was that the Respondent declined to ask others for help. Under these circumstances, it would be difficult for the Division to have confidence that the Respondent will have the ability to cope with the stress that a return to his profession would entail.

    
    

22. Section 550.105(4)(d), Fla. Stat. (1993), also provides in pertinent part:

    
    

    If an occupational license will expire by division rule during the period of a suspension the division intends to impose

    . . ., the license may be revoked and a time period of license ineligibility may be declared.

    
    

    Since the Respondent's license expires on or about September 9, 1994, if his license is suspended for a period of time that goes beyond that date, it should be revoked, and consideration should be given to declaring a period of license ineligibility.

    
    

23. In addition to what the pertinent statutes provide, F.A.C. Rule 61D- 1.006(3) allows the Division to place conditions or restrictions on the license of a licensee found guilty of violation the applicable statutes and rules. Under the circumstances of this case, outright revocation of the Respondent's license seems too harsh, yet a limited suspension without any conditions or

restrictions may not provide adequate safeguards for animals that may come under the Respondent's charge at the end of the suspension period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order revoking the license of the Respondent, David A. Held, for one year and declaring him ineligible for relicensure for a period of one year, with relicensure (1) conditioned upon certification by a Florida licensed mental health practitioner that he either has completed necessary mental health treatment, or that he remains on an appropriate course of treatment, and that he is mentally able to carry out the responsibilities of licensure, and (2) on probation for one year with appropriate conditions to be determined by the Division.

RECOMMENDED this 3rd day of June, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1202

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-9. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument.

10. Conclusion of total neglect for the entire time period, rejected as subordinate to facts contrary to those found. Otherwise, essentially accepted and incorporated to the extent not subordinate or unnecessary or argument.

11.-13. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument.

14. Rejected to the extent contrary to facts found. (The evidence did not clearly explain the reasons for the poor condition of the Porter greyhounds when the Respondent delivered them to Weekley. It is curious that Weekley never complained to the Respondent about the condition of the dogs.)

15.-16. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument.

1. Accepted but subordinate and unnecessary. (Several other conditions precedent to the resulting death of a dog also coincided.)

2. Rejected as not proven that he "never" sought assistance; however, as found, except for seeking veterinarian assistance for the skin disease, the Respondent did not seek the assistance needed to cope with the situations described in the findings of fact.

Respondent's Proposed Findings of Fact.

1. Accepted but largely subordinate and unnecessary.

2. In part, rejected as contrary to facts found (that Marriott had 16 dogs in the Respondent's kennel at the time) and as subordinate to facts contrary to those found (that all of the dogs in the kennel indeed "had trouble" on September 13, 1993.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument.

3. Second sentence, rejected as not supported by any evidence and as subordinate to facts contrary to those found. Fourth sentence, not clear from the evidence whether Porter was there up to the time the dogs became agitated; besides, irrelevant if he was. Fifth through eight sentences, in part rejected as not supported by any evidence (whether the dogs were muzzled) or as not clear

from the evidence (whether female dogs were involved; besides, also irrelevant since the Respondent was not there and was not involved. Ninth sentence, not clear whether Porter was there when the Respondent drove up but irrelevant in any event. Tenth sentence through end of paragraph, rejected as contrary to the greater weight of the evidence that Porter "interfered" rather than simply expressed normal concern for the welfare of his dogs and the others in the kennel; otherwise, rejected as being subordinate and argument.

COPIES FURNISHED:

John B. Fretwell, Esquire

Department of Business & Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

David A. Held

6202 South Harold Avenue Tampa, Florida 33616

Jack McRay, Esquire Acting General Counsel

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 to the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-001202

Orders for Case No: 94-001202