STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 01-0262PL

)

DOUGLAS J. LEVKOFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 29, 2001, in Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

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

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Douglas J. Levkoff

7218 West 4th Avenue Hialeah, Florida 33014

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensee on the basis

of allegations in an Administrative Complaint in which the Respondent is charged with two violations of Section 550.2415(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Following the issuance and service of the Administrative Complaint, the Respondent made a timely request for an evidentiary hearing. The case was then transferred to the Division of Administrative Hearings, where it was scheduled for hearing. On March 9, 2001, the parties filed a written stipulation, by means of which they stipulated to some of the facts in this case.

At the final hearing on March 29, 2001, the Petitioner presented the testimony of three witnesses and offered nine exhibits, all of which were received in evidence. The Respondent testified on his own behalf, but did not call any additional witnesses. The Respondent did not offer any exhibits.

At the conclusion of the hearing, the deadline for filing proposed recommended orders was established as ten days following the filing of the transcript. The transcript was filed on

April 26, 2001. Because the Respondent did not receive timely notice of the filing of the transcript, the deadline for filing proposed recommended orders was extended for all parties until May 29, 2001. The Petitioner filed a timely Proposed Recommended

Order. As of the date of this Recommended Order, the Respondent has not filed any post-hearing documents.

FINDINGS OF FACT

1. The Petitioner is the State of Florida, Department of Business of Professional Regulation, Division of Pari-Mutuel Wagering (Division) which is created by Section 20.165(2)(f), Florida Statutes.

2. The Respondent, Douglas J. Levkoff, is the holder of an unrestricted U-1 Professional Pari-Mutuel License, License Number 10311836-1081, issued by the Division on or about July 1, 2000.

3. West Flagler is a permitholder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida.

4. On September 9, 2000, the Respondent was the trainer for a racing greyhound named "Dodge A Ram."

5. The racing greyhound "Dodge A Ram" finished third in the ninth race of the evening performance of West Flagler on September 9, 2000.

6. Immediately after the race a urine sample was collected from "Dodge A Ram." The urine sample was assigned sample number 651573.

7. The University of Florida Racing Laboratory tested urine sample number 651573, and found it to contain Benzoylecgonine.1

8. On September 23, 2000, the Respondent was the trainer for a racing greyhound named "Izz Our Patsy."

9. The racing greyhound "Izz Our Patsy" finished first in the sixth race of the matinee performance of West Flagler on September 23, 2000.

10. Immediately after the race a urine sample was collected from "Izz Our Patsy." The urine sample was assigned sample number 652144.

11. The University of Florida Racing Laboratory tested urine sample number 652144, and found it to contain Benzoylecgonine.2

12. Benzoylecgonine is a metabolite of Cocaine. It is the primary marker of Cocaine in forensic technology. The metabolite Benzoylecgonine is not produced by any drug other than Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system.

13. The Respondent is the trainer of record for Sun Coast Kennels, which provides greyhounds for racing to West Flagler Greyhound Track. He is listed as the trainer for Sun Coast Kennels on the kennel personnel roster filed with the Racing Secretary at West Flagler.

14. Sun Coast Kennels is assigned kennel number 17 by West Flagler for identification purposes. Specifically, the Respondent provided the names of "Dodge A Ram" and "Izz Our

    Patsy" to West Flagler through a listing of available greyhounds and an official schooling, respectively.

    CONCLUSIONS OF LAW

    
    

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

16. The Division is the agency of the State of Florida that is charged with the regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. The Division has the burden of proving by clear and convincing evidence that disciplinary action should be taken against Respondent's occupational license. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Section 550.2415(1)(a), Florida Statutes, reads 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. 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.

    
    

18. Rule 61D-6.002(1), Florida Administrative Code, reads as follows:

    The trainer of record shall be responsible for and the absolute insurer of the condition of the horses or greyhounds he/she enters to race. Trainers, kennel owners and operators are presumed to know the rules of the division.

    
    

19. 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, which is necessary to protect the industry's integrity. In its decision upholding the validity of the Absolute Insurer Rule, the Supreme Court of Florida in Division of Pari-Mutuel Wagering, Department of Business Regulation v. Caple, 362 So. 2d 1350 (Fla. 1978), held as follows:

    On review of these more recent authorities, we are now persuaded that Florida should align itself with the well reasoned majority view. To protect the integrity of this unique industry, it is really immaterial whether "guilt" should be ascribed either directly or indirectly to the trainer. The rules were designed, and reasonably so, to condition the grant of a trainer's license on the trainer's acceptance of an absolute duty to ensure compliance with reasonable regulation governing the areas over which the trainer has responsibility. Whether a

    violation occurs as a result of the personal acts of the trainer, of persons under his supervision, or even of unknown third parties, the condition of licensure has been violated by the failure to provide adequate control, and the consequence of the default is possible suspension of the trainer's license or a fine. We have no doubt that a rule which both conditions a license and establishes with specificity reasonable precautionary duties within the competence of the licensee to perform is both reasonable and constitutional.

    
    

    Caple, 362 So. 2d 1350, 1354-1355.

    
    

20. The evidence is clear and convincing that the Respondent is the trainer of record for the greyhounds "Dodge A Ram" and "Izz Our Patsy." By listing "Dodge A Ram" on the list of available greyhounds and "Izz Our Patsy" on an official schooling, the Respondent was the trainer who entered those dogs to race. Therefore, under the established case law of Florida, he is strictly responsible for their condition if they are found to have tested positive for prohibited drugs.

21. Section 550.2415(1)(c), Florida Statutes, reads as

    
    

    follows:

    
    

    (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.

    
    

22. The effect of Section 550.2415(1)(c), Florida Statutes, is to create a rebuttable presumption that an impermissible drug was administered and that the drug was carried in the body of the

    animal during the race on the day the specimen was collected. It has been clearly and convincingly established that the greyhounds trained by the Respondent produced race day specimens that contained Benzoylecgonine, a metabolite of Cocaine, which is a prohibited substance. Therefore, the Division has established its prima facie case.

23. There has been no evidence proffered by the Respondent that calls into question either the collection of the samples in this case or the testing of the samples in this case. While the Respondent alluded to one incident when a person was able to enter the jenny pit area prior to a race, there is no evidence to connect that incident to either of the races at issue in this case. Therefore, the Respondent has failed to rebut the Division's prima facie case that Cocaine was administered and was carried in the bodies of the greyhounds "Dodge A Ram" and "Izz Our Patsy" while participating in the races in question.

24. The Respondent was the trainer of record for the greyhounds "Dodge A Ram" and "Izz Our Patsy," which ran in the ninth race of the evening performance of West Flagler on September 9, 2000, and in the sixth race of the matinee performance of West Flagler on September 23, 2000, respectively. Therefore, the Respondent is responsible for the two violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint.

25. In a similar case recently decided by the Division of Administrative Hearings, the Division of Pari-Mutuel Wagering has entered a Final Order in Division of Pari-Mutuel Wagering vs. Celestina M. Gangemi, DOAH Case No. 00-3816PL, DBPR Final Order No. BPR-2001-01307. In that case, a thoroughbred horse trainer was suspended for ten days and fined one hundred dollars ($100) for a horse that tested positive for similar levels of Benzoylecgonine as those found in the two greyhounds trained by the Respondent. The Division of Pari-Mutuel Wagering also adopted the recommendation that the purse at issue in that case be returned as well. Therefore, it is appropriate to impose the same penalty for each positive test in this case.

RECOMMENDATION

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

RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this case suspending the Respondent's license for a period of twenty days, imposing an administrative fine in the total amount of $200.00, and requiring the return of any purse that was received by the Respondent as a result of the two races at issue in this case.

DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 12th day of June, 2001.

ENDNOTES

1/ The amount of Benzoylecgonine detected in this sample was minute. It was estimated to be less than 10 nanograms per milliliter.

2/ This sample also contained less than 10 nanograms per milliliter of Benzoylecgonine.

COPIES FURNISHED:

Dr. Paul F. Kirsch, Director Department of Business and

Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

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

Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

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

Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Douglas J. Levkoff 7218 West 4th Avenue

Hialeah, Florida 33014

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: 01-000262PL

Orders for Case No: 01-000262PL