STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

GREGORY H. MITCHELL,

Respondent.

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) Case No. 02-4025PL

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RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was held before the Division of Administrative Hearings, by Fred L. Buckine, Administrative Law Judge, on April 9, 2003, in Sarasota, Florida.

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 in this case are whether Respondent, owner/trainer of record of a greyhound that finished in first place, a greyhound that finished in second place, and a greyhound that finished in third place in three separate races, and two greyhounds that ran and finished out of the money in two separate races, is legally responsible for the prohibited substance found

in the urine sample of each of the five greyhounds taken immediately after each race in violation of Section 550.2415(1)(a), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 16, 2002, the Agency referral, the Administrative Complaint, and the Election of Rights were filed with the Division of Administrative Hearings. On October 17, 2002, the Initial Order was issued, and Petitioner's response thereto was filed on October 24, 2002. On October 30, 2002, the Notice of Hearing, scheduling the final hearing for December 18, 2003, in Sarasota, Florida, and the Order of Pre-Hearing Instructions were entered.

On December 4, 2002, Petitioner filed an Agreed Motion for Continuance, and on December 6, 2002, an Order granting the continuance and rescheduling the final hearing for January 9, 2003, was entered. On December 26, 2002, Petitioner filed a Motion to Relinquish Jurisdiction and a Motion for Continuance. By Order of January 3, 2003, Petitioner's Motion for Continuance was granted, rescheduling the final hearing for January 14, 2003. By Order of January 7, 2003, Petitioner's Motion to Relinquish Jurisdiction was denied. On January 8, 2003, Respondent filed a letter requesting a continuance and abatement of this case, which was granted by Order dated January 13, 2003, with parties to advise of the status by February 28, 2003. On February 27, 2003, Respondent advised that he was prepared to represent himself. On March 10, 2003, a Notice of Hearing scheduling the final hearing

for April 9, 2003, in Sarasota, Florida, and an Order of Pre- Hearing Instructions were issued.

At the final hearing, Respondent, Gregory H. Mitchell, did not appear, nor did anyone appear on his behalf. All Orders and all Notices were mailed to Respondent's address of record, and several telephone attempts to contact him were made to telephone numbers of record without success. Petitioner presented the testimony of two witnesses: Margaret Wilding, Associate Director of the University of Florida Racing Laboratory, who was qualified as an expert in forensic toxicology, and James Decker, Investigator Supervisor, Division of Pari-Mutuel Wagering, Department of Business and Professional Regulation. Petitioner offered 23 exhibits (P-1 through P-23) that were accepted into evidence.

On April 28, 2003, a Transcript of the proceeding was filed.

Petitioner's Proposed Recommended Order was filed on

May 13, 2003, and has been considered by the undersigned in the formulation of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes.

2. At all times relevant and material to this proceeding, Respondent, Gregory H. Mitchell, was the holder of a professional

   individual occupational pari-mutuel license, number 129829, issued by the Division on July 1, 2002, with an expiration date of June 30, 2002.

3. At all times relevant and material to this proceeding, the Sarasota Kennel Club was a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida and was assigned track number 153 by the Division. The Division of Pari-Mutuel Wagering Form 503 identified the name and location of each race track where a greyhound's urine sample was collected.

4. At all times relevant and material to this proceeding, Respondent was the owner/trainer of record for each of the greyhounds who were entered in races at the Sarasota Kennel Club on the following dates and who had urine samples immediately taken and examined: (1) March 1, 2002, "Fly Bye Pumpkint" finished third in the third race, and the urine sample collected was numbered 842141; (2) March 11, 2002, "Greys Ice Star" finished eighth in the eleventh race, and the urine sample collected was numbered 852361; (3) March 12, 2002, "Fly Bye Pumpkint" finished fifth in the fourth race, and the urine sample collected was numbered 852399; (4) March 13, 2002, "Twilite Hossplay" finished second in the third race, and the urine sample collected was numbered 852439; and (5) April 8, 2002, "Dia's- White-Tip" finished first in the fourth race, and the urine sample collected was numbered 852562.

5. The hereinabove five urine samples were forwarded to the

   University of Florida Racing Laboratory. The Racing Laboratory

   tested the urine samples and found that each urine sample tested contained benzoylecognine, a metabolite that is found only in cocaine.

6. Cocaine is a Class I drug according to the Association of Racing Commissioners International Classification System.

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 550.0251 and Subsection 120.57(1), Florida Statutes.

8. The Division is the agency of the State of Florida charged with the regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes.

9. The standard of proof required to discipline a licensee is that of clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987), quoting from Reid v. Florida Real Estate Commission, 188 So. 2d 846, 851 (Fla. 2nd DCA 1966) that:

   The power to revoke a license should be exercised with no less careful circumspection than the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

10. The court further amplified the clear and convincing evidence standard. See In re: Davey, 645 So. 2d 398, 404 (Fla.

1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court stated that:

[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

11. Subsections 550.2415(1)(a), (b), (c), (2), and (3)(a), Florida Statutes, in pertinent part, provide that:

(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.

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.

(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.

1. Rule 61D-6.002, Florida Administrative Code, in pertinent part, provides that:

   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.

      
      

   2. Each permitholder of a thoroughbred, harness, or greyhound racing facility shall provide and maintain a detention enclosure in a location approved by the division for the purpose of securing urine, blood or other samples from racing greyhounds or horses.

      The detention enclosure at horse tracks shall contain a wash rack, an office for the division veterinarian, and not less than six detention stalls with an adjacent walking ring. The detention enclosure at greyhound tracks shall be located within a reasonable distance of the veterinary assistant detention office and shall have a chain link

      perimeter fence which will prevent access of unauthorized persons. The detention enclosure shall be large enough to allow three dogs to be walked simultaneously for the purpose of taking urine samples, be partially covered to allow sampling during inclement weather, and have sufficient lighting to allow sampling during hours of darkness.

2. By the evidence of record, Petitioner has proven clearly and convincingly that Respondent was owner/trainer of record (1) on March 1, 2002, of "Fly Bye Pumpkint," the dog that finished third in the third race, and the urine sample collected was numbered 842141; (2) on March 11, 2002, of "Greys Ice Star," the dog that finished eighth in the eleventh race, and the urine sample collected was numbered 852361; (3) on March 12, 2002, of "Fly Bye Pumpkint," the dog that finished fifth in the fourth race, and the urine sample collected was numbered 852399; (4) on March 13, 2002, of "Twilite Hossplay," the dog that finished second in the third race, and the urine sample collected was numbered 852439; and (5) on April 8, 2002, of "Dia's-White-Tip," the dog that finished first in the fourth race, and the urine sample collected was numbered 852562.

3. Petitioner has also proven that after each race

   hereinabove identified a urine sample was taken from each greyhound dog hereinabove, separately numbered for identification, and forwarded to, examined, and tested at the University of Florida and that each urine sample tested contained the illegal substance benzoylecognine.

4. The above rule, also known as the Absolute Insurer Rule, is based on strict liability as a condition of licensure.

   Challenges to the validity of this rule have not been successful, and the plain reading of Subsection 550.2415(2), Florida Statutes, makes it clear that the Division has authority to hold Respondent as owner/trainer of record responsible for the condition of the greyhounds, and the owner/trainer of record need not be the person who actually administered the impermissible drug. See Division of Pari-Mutuel Wagering v. Caple, 362 So. 2d 1350 (Fla. 1978).

5. There is clear and convincing evidence that Respondent is the owner/trainer of record for the greyhounds in this proceeding. Under the above-established case law of Florida, Respondent is strictly responsible for the greyhounds' condition if found to have tested positive for impermissible drugs. In this case, each dog hereinabove identified in Finding of Fact 4 was found to have impermissible drugs, and Respondent is responsible.

6. Subsection 550.2451(1)(c), above cited, states that a positive test in a race day specimen is prima facie evidence of a statutory violation. Petitioner established by clear and convincing evidence that for each of the five dogs identified herein, the individual race-day specimen contained benzoylecognine and egconine methyl ester, metabolites of cocaine, a prohibited drug.

7. Respondent did not appear and thus failed to rebut Petitioner's prima facie case that a prohibited drug, cocaine, was administered and was carried in the body of the greyhounds

   identified in Finding of Fact 4 hereinabove, while participating in the races identified in Finding of Fact 4 hereinabove.

8. Penalty guidelines for Class I impermissible substances were adopted on February 8, 2001, by amendment found in Rule 61D- 6.011(2)(a), Florida Administrative Code, which provides:

   (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.

   1. 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.

9. The races in this case were conducted after the adoption of the penalty guidelines referenced above; therefore, under Rule 61D-6.011(2)(a), Florida Administrative Code, the minimum fine for this case would be $500 for the first violation and from $1,000 to $5,000 for the second, third, fourth and fifth violations committed by Respondent.

10. In addition to the fines, the return of purses won due to the first-place finish, the second-place finish, and the

third-place finish of the greyhounds by Respondent is appropriate and authorized under Subsection 550.2415(3)(a),

Florida Statutes, above cited. See Hyman v. State, Department of Business Regulation, Division of Pari-Mutuel Wagering, 431 So. 2d 603 (Fla. 3rd DCA 1983). The reasoning of the court in cases involving racing that requires the return of the purse is that it is appropriate where an unfairly advantaged animal has participated in a pari-mutuel event, regardless of any proof of wrongdoing.

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 in this matter revoking the occupational license of Respondent, Gregory H. Mitchell. It is further

RECOMMENDED that the following fines be imposed upon Respondent in the amount of $1,000 for the first-place finish violation; $1,500 for the second-place finish violation; $2,000 for the third-place finish violation; $2,500 for the fourth-place finish violation; and $3,000 for the fifth-place finish violation, for a total fine of $10,000. It is further

RECOMMENDED that the Division order the purses received by Respondent, as a result of the first-place finish, the second- place finish, and the third-place finish, be returned forthwith to the Division.

DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 22nd day of May, 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

Gregory H. Mitchell 1010 Villagio Circle

Sarasota, Florida 34237

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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

Professional Regulation 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: 02-004025PL

Orders for Case No: 02-004025PL