STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS

AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,

Petitioner,

vs.

THOMAS M. DUDLEY,

Respondent.

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) Case No. 06-0737PL

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RECOMMENDED ORDER

Notice was provided and on May 4, 2006, a formal hearing was conducted in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2005). The hearing location was the Office of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing commenced at 10:00 a.m. The hearing was held before Charles C. Adams, Administrative Law Judge.

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: No appearance

STATEMENT OF THE ISSUE

Should Petitioner impose discipline against Respondent's Pari-Mutuel Wagering Occupational License, and other relief for alleged violation of Section 550.2415(1)(a), Florida Statutes (2005)?

PRELIMINARY STATEMENT

On October 6, 2005, Petitioner completed an Amended Administrative Complaint against Respondent, Case Nos.

2005033377, 2005033379, 2005036766 and 2005038762. Respondent

was provided several options in addressing the Amended Administrative Complaint. He chose to dispute the material facts in the Amended Administrative Complaint, by requesting a hearing pursuant to Section 120.57(1), Florida Statutes (2005). The material dispute of facts concern allegations that Respondent was the trainer of record of four racing greyhounds who participated in meets at the Pensacola Greyhound Track with a prohibited substance in their bodies, namely cocaine and/or its metabolite benzoylecgonine in violation of Section 550.2415(1)(c), Florida Statutes (2005). The Amended Administrative Complaint also refers to Florida Administrative Code Rule 61D-6.002(1) concerning responsibilities of the trainer in relation to the condition of the racing greyhounds entered in a race. Petitioner also seeks return of the purses

paid in the races where the greyhounds performed and won a cash prize.

Petitioner forwarded the case to the Division of Administrative Hearings (DOAH) for Robert S. Cohen, Chief Judge to assign an Administrative Law Judge to conduct necessary proceedings. On February 28, 2006, the referral was received by DOAH. The case was assigned to the undersigned as DOAH Case No. 06-0737PL. The case was noticed to be heard on the aforementioned date.

Prior to the hearing Petitioner instituted discovery to include the request for admissions by Respondent pursuant to Rule 1.370, Florida Rules of Civil Procedure. Petitioner sought to shorten the time for responses to the discovery. On

April 18, 2006, an order was entered requiring Respondent to provide answers and responses to the pending discovery no later than April 28, 2006. Respondent did not comply with that order. Under the circumstances Respondent was deemed to have admitted those matters requested for admission in accordance with Rule 1.370, Florida Rules of Civil Procedure. This allows the matters admitted to form the basis for fact-finding in this Recommended Order.

At hearing Ernest James Barnes, Jr., and Margaret Wilding testified for Petitioner. Petitioner's Exhibits numbered 1 through 16 were admitted.

On June 5, 2006, a hearing Transcript was filed.

On June 15, 2006, Petitioner filed a proposed recommended order, which was considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Between May 24, 2005 and June 18, 2005, Respondent held a Pari-Mutuel Wagering Occupational License, number 1102016- 1021, issued by Petitioner.

2. On May 25, 2005, Respondent was the trainer of record of a racing greyhound named "Lips Are Sealed."

3. On May 25, 2005, "Lips Are Sealed" was entered, and finished first (1st), in the second (2nd) race of the performance at Pensacola Greyhound Track.

4. Immediately following the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005, urine sample number 129287 was collected from "Lips Are Sealed."

5. The University of Florida Racing Laboratory tested urine sample number 129287 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof.

6. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Lips Are Sealed" while participating in the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005.

7. On June 1, 2005, Respondent was the trainer of record of a racing greyhound named "Red Eyed Fever."

8. On June 1, 2005, "Red Eyed Fever" was entered, and finished first (1st), in the fourth (4th) race of the performance at Pensacola Greyhound Track.

9. Immediately following the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005, urine sample number 129348 was collected from "Red Eyed Fever."

10. The University of Florida Racing Laboratory tested urine sample number 129348 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof.

11. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Red Eyed Fever" while participating in the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005.

12. On June 16, 2005, Respondent was the trainer of record of a racing greyhound named "Stubborn Kind."

13. On June 16, 2005, "Stubborn Kind" was entered, and finished first (1st), in the first (1st) race of the performance at Pensacola Greyhound Track.

14. Immediately after the first (1st) face of the performance at Pensacola Greyhound Track on June 16, 2005, urine sample number 129469 was collected from "Stubborn Kind."

15. The University of Florida Racing Laboratory tested urine sample number 129469 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof.

16. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Stubborn Kind" while participating in the first (1st) race of the performance at Pensacola Greyhound Track on June 16, 2005.

17. On June 17, 2005, Respondent was the trainer of record of a racing greyhound named "Drinktil Hescute."

18. On June 17, 2005, "Drinktil Hescute" was entered, and finished first (1st), in the fifth (5th) race of the performance at Pensacola Greyhound Track.

19. Immediately following the fifth (5th) race of the performance at Pensacola Greyhound track on June 17, 2005, urine sample number 129479 was collected from "Drinktil Hescute."

20. The University of Florida Racing Laboratory tested urine sample number 129479 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof.

21. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Drinktill Hescute" while participating in the fifth (5th) race of the performance at Pensacola Greyhound Track on June 17, 2005.

    CONCLUSIONS OF LAW

    
    

22. DOAH has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569, 120.57(1), and 550.2415(3)(d), Florida Statutes (2005).

23. This is a disciplinary case. Therefore, Petitioner has the burden of proving the allegations of the Amended Administrative Complaint by clear and convincing evidence. See

    § 120.57(1)(j), Fla. Stat. (2005); see also Department of Banking and Finance Division of Securities and Investor

    Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v.

    Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3rd DCA 1998).

24. The meaning of clear and convincing evidence is explained in the case In Re: Davey, 645 So. 2d 398 (Fla. 1995), quoting with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

25. There are four separate counts to the Amended Administrative Complaint involving the racing greyhounds named

    "Lips Are Sealed," "Red Eyed Fever," Stubborn Kind," and "Drinktil Hescute." All the animals were alleged to have raced in performances at Pensacola Greyhound Track with Cocaine and/or its metabolite Benzoylecgonine in their bodies, a prohibited substance. The Amended Administrative Complaint contemplates that Respondent will be held accountable as the trainer of record, as an absolute insurer of the condition of the racing greyhounds that were entered in the races.

26. Clear and convincing evidence proved that the greyhounds named were racing greyhounds who performed at Pensacola Greyhound Track on the dates at issue, when Respondent served as the trainer of record and that during the performances they had Cocaine in their systems, as evidenced in post-race urine samples containing Benzoylecgonine (a metabolite of Cocaine). The drug present was a prohibited substance.

27. To support this conclusion, Respondent holds a Pari- Mutuel Wagering Occupational license pursuant to Section 550.105(2)(a)2., Florida Statutes (2005). He holds the license as a trainer of the racing greyhounds that have been described.

    § 550.002(29), Fla. Stat. (2005). The racing greyhounds participated in a "performance" at various times held at Pensacola Greyhound Track. § 550.002(25), Fla. Stat. (2005).

28. Petitioner has taken action against Respondent under authority set forth in Section 550.0251, Florida Statutes

    (2005), entitling it to regulate Respondent's conduct in association with the racing greyhounds who performed at Pensacola Greyhound Track.

29. It was not permissible for the racing greyhounds to perform under the influence of Cocaine. This conduct is prohibited under Section 550.2415(1)(a), Florida Statutes (2005), which states:

    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. . . .

    
    

30. Cocaine is a schedule II controlled substance referred to in Section 893.03(2)(a)4., Florida Statutes (2005).

31. Cocaine is a prohibited substance when found in a race day specimen, such as was the case from the listed racing greyhounds on the dates in question. Finding the prohibited substance in the racing greyhounds constituted prima facie evidence that the substance had been administered and was carried in their bodies while participating in the races. No evidence was offered to the contrary. § 550.2415(1)(c), Fla. Stat. (2005).

32. Respondent is subject to this administrative action as trainer for the racing greyhounds under authority set forth in Section 550.2415(2), Florida Statutes (2005), which states:

    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.

    
    

33. The rule which makes Respondent responsible for the circumstances where the racing greyhounds performed with Cocaine in their bodies is found at Florida Administrative Code Rule 61D-6.002(1), which states:

    The trainer of record shall be responsible for and be the absolute insurer of the condition of the . . . racing greyhounds, he

    . . . enters to race. Trainers . . . are presumed to know the rules of the division

    . . . .

    
    

34. Nothing in the record indicates any lack of knowledge by Respondent, that would overcome his responsibility for the racing greyhounds performing with Cocaine in their systems.

35. Respondent has violated Section 550.2415(1)(a), Florida Statutes (2005), and is subject to punishment and remedial action in accordance with Section 550.2415(3)(a), Florida Statutes (2005), which states:

    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.

    
    

36. Upon these facts, Respondent's occupational license as a trainer should be revoked and a $5,000.00 fine imposed. In addition, the race purses should be returned. See Hyman v. State, Department of Business Regulation, Division of Pari- Mutuel Wagering, 431 So. 2d 603 (Fla. 3rd DCA 1983).

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered revoking the occupational license held by Respondent, imposing a $5,000.00 fine and requiring the return of the race purses.

DONE AND ENTERED this 27th day of June, 2006, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 27th day of June, 2005.

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

Thomas M. Dudley, Sr.

327 Northeast 434 Street Old Town, Florida 32680

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 06-000737PL

Orders for Case No: 06-000737PL