STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

JENNETTE D. HOLMES,

Respondent.

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) Case No. 04-3638PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 14, 2004, in Fort Myers, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: S. Thomas Peavy Hoffer, Esquire

Ralf E. Michels, Esquire Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Jennette Holmes, pro se

11900 Forest Mere Drive, No. 101 Bonita Springs, Florida 34135

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 550.2415(1)(a), Florida Statutes (2004), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On June 29, 2004, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department), filed an Administrative Complaint against Respondent, Jennette D. Holmes (Holmes), alleging that she violated Subsection 550.2415(1)(a), Florida Statutes (2004). Holmes requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on October 6, 2004, for assignment to an Administrative Law Judge.

At the final hearing, Petitioner called Charles H. Taylor and Margaret Wilding as its witnesses. Petitioner's Exhibits 1 through 7 were admitted in evidence. Respondent testified in her own behalf and called the following witnesses: James J. Blanchard, Michael J. Labun, Charles H. Taylor, Patricia M. Evans, and Margaret Wilding. Respondent's Exhibits 1 through 3 were admitted in evidence. Respondent's Exhibit numbered 4 was rejected.

The one-volume Transcript was filed on January 12, 2005. Petitioner filed its Proposed Recommended Order on January 20,

2005. As of the date of this Recommended Order, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, Holmes held a pari-mutuel wagering occupational license number 832105-1021, issued by the Department.

2. On May 23, 2004, Holmes was the trainer of record of Hoov's KC, a racing greyhound. Hoov's KC was entered in, participated in, and won the first race of the afternoon performance at Naples-Ft. Myers Greyhound Track on May 23, 2004.

3. Immediately after the race, a urine sample was collected from Hoov's KC by a veterinary assistant at the veterinary shack at the race track. The veterinary shack is operated by the Department, and the veterinary assistant is employed by the Department. The veterinary assistant collected the specimen by using a sterilized cup which is attached to a three-foot stick. The cups are kept in an unlocked box in the veterinary shack. After Hoov's KC's urine sample,

   numbered 947445, was collected, the cup was sealed, and placed in a freezer, which is kept locked. Holmes watched the collection of the specimen and the sealing of the cup containing the specimen.

4. A specimen card was filled out for the urine sample, listing the number of the sample, the name of the dog, the owner

   and the trainer, and other information identifying the dog. The veterinary assistant signed the card, and then Holmes, as the owner's witness to the sampling and sealing of the specimen, signed the card.

5. The veterinary assistant prepared a Form 503, which listed each of the samples taken at the racetrack on May 23, 2004. The form listed Hoov's KC and its urine specimen number. The urine sample and a redacted copy of the form were sent to the racing laboratory at the University of Florida, where the sample was to be tested for any prohibited substances. Information, other than the specimen number, which would identify the dog, the trainer, or the owner were redacted.

6. The racing laboratory received the urine specimen in a locked cooler and assigned the urine sample an internal laboratory number of 77132L for tracking while the sample was being tested. The urine sample was tested using gas chromatography/mass spectrometry and found to contain benzoylecgonine, a metabolite of cocaine, which is a topical anesthetic and a Class I drug, according to guidelines promulgated by the Association of Racing Commissioners International Inc.

7. At times, Holmes has found the veterinary shack unattended and unlocked. Holmes and James Blanchard, a kennel owner in the Fort Myers area, have seen sticks with collection

   cups attached placed in trash barrels in the area where the specimens are collected. Holmes has seen food and soft drinks in the collection areas. However, there was no evidence presented to show that the collection tool used by the veterinary assistant for the collection of Hoov's KC's sample was contaminated. Holmes witnessed both the collection and the sealing of the sample at issue and did not state that she observed any contamination of the sample.

8. Holmes' pari-mutuel wagering license has not been previously disciplined for a violation of Subsection 550.2415(1)(a), Florida Statutes (2004).

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

10. The Department has the burden to establish by clear and convincing evidence the allegations contained in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Department has alleged that Holmes violated Subsection 550.2415(1)(a), Florida Statutes (2004), which provides:

    The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, 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.

    
    

11. Subsection 550.2415(1)(c), Florida Statutes (2004), provides:

    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.

    
    

12. Florida Administrative Code Rule 61D-6.002(1),

    
    

    provides:

    
    

    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.

    
    

13. The Department has established by clear and convincing evidence that a violation of Subsection 550.2415(1)(a), Florida Statutes (2004), occurred. Immediately after Hoov's KC raced on May 23, 2004, a urine sample was taken. The sample was secured and sent to a racing laboratory, where it tested positive for benzoylecgonine, a metabolite of Cocaine, which is a Class I drug. Holmes was the trainer of record for Hoov's KC on May 23, 2004, and as such, she was responsible for and the absolute insurer of the condition of Hoov's KC.

14. No evidence was presented that would indicate that the testing procedures outlined in Florida Administrative Code

    Rule 61D-6.005 were not followed.

    
    

15. Florida Administrative Code Rule 61D-6.011(2), provides for penalty guidelines for a violation of Subsection 550.2415(1)(a), Florida Statutes (2004). For a first violation in which a Class I impermissible substance is found, the guidelines provide a penalty of "$500 to $1,000 fine, suspension or revocation of license."

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Jennette D. Holmes violated Subsection 550.2415(1)(a), Florida Statutes (2004); imposing a $500 fine; and suspending her license for five days.

DONE AND ORDERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 4th day of February, 2005.

COPIES FURNISHED:

Ralf E. Michels, Esquire Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jennette D. Holmes

11900 Forest Mere Drive, No. 101 Bonita Springs, Florida 34135

S. Thomas Peavy Hoffer, Esquire Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Leon Biegalski, 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: 04-003638PL

Orders for Case No: 04-003638PL